Thursday, December 2, 2010

UPDATE: Colorado counties discuss ways to backdoor ban MMJ

Posted By on Thu, Dec 2, 2010 at 12:14 PM

El Paso County public information officer Dave Rose e-mailed us to clarify that, though the city Planning Commission has taken an unpopular zoning stance, the un-related Board of County Commissioners has had land use regulations in effect since Dec. '09.

The Board of County Commissioners of El Paso County enacted land use regulations pertinent to medical marijuana businesses in December 2009 and businesses in the unincorporated portions of the county have been in business, in compliance subject to those land use regulations since that time. All businesses have to comply with county land use regulations and as we know it today there are a good many MMJ businesses doing just that in the unincorporated portions of El Paso County.


  • Baumgarten

As we mentioned yesterday, we sat in on Colorado Counties Inc.'s winter conference session regarding medical marijuana at the Crowne Plaza. While we'll detail Department of Revenue senior director of enforcement Matt Cook's plans for MMJ later, here's something else discussed at the meeting: How to limit access to medical marijuana in counties that have allowed it.

Within the context of listing 20-or-so uncertainties revolving around the MMJ issue — from applicable sales tax revenue to interpretations of Amendment 20Gunnison County Attorney David Baumgarten detailed "some approaches that the communities that have affirmatively chosen to allow these businesses in, either by resolution or by vote," can use.

"The first is a conditional approval, if at all, on the demonstration that what you’re doing is legal under federal law," Baumgarten told a room full of Colorado county officials, including El Paso County Commissioners Dennis Hisey and Jim Bensberg. "That is, to flip the burden from the local government — like in the Centennial case, where the local government says you're banned because it's illegal — to 'You can do this when you demonstrate to us that you are legal.'

"And take that monkey off of the local government's back and put it on to the person who wants to do the business," Baumgarten said. "'You make a demonstration to me that you're legal under federal law.'

"I think it’s impossible."

El Paso County residents will already be familiar with the second approach, from dealings with the Planning Commission: Zone, baby, zone.

"A very different twist on it is gonna be restrictive zoning. And at least in our municipalities, we've had some experience with that with adult entertainment, another rights-based kind of a conversation," said Baumgarten. "'I have a right to adult entertainment' and therefore you have to zone part of your municipality for adult entertainment. And I expect that type of an argument as well. … But that issue's not yet been joined."

So don't be surprised if you see something like this coming from — with respect to Commissioner Bensberg, who voted against referring an MMJ ban, and a county term limit extension, question to the November ballot — The Fount of Eternal Wisdom, Truth and Full-Disclosure known as the El Paso Board of County Commissioners.

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