ORDINANCE N0. 11-11

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CASTLE PINES, COLORADO AMENDING THE CITY'S ZONING ORDINANCE TO IMPLEMENT THE 2010 VOTER APPROVED BAN ON MEDICAL

MARIJUANA BUSINESSES OR OPERATIONS WITHIN THE CITY AND TO REGULATE THE MANNER IN WHICH MEDICAL MARIJUANA IS

CULTIVATED, PRODUCED, POSSESSED OR PROCESSED WITHIN A PRIMARY RESIDENCE BY A PATIENT OR A PRIMARY CARE-GIVER

WHEREAS, in the November 2000 general election, the voters of the State of Colorado adopted Amendment 20 to the Colorado Constitution, which was subsequently codified as Section 14 of Article XVIII of the Colorado Constitution ("Article XVIII" or "Amendment 20"); and

WHEREAS, Amendment 20 created a limited exception and affirmative defense to state criminal liability under Colorado law for the specific use of marijuana by persons in Colorado suffering specified debilitating medical conditions who have been placed on a statewide registry pursuant to receiving acknowledgment from a licensed Colorado physician that those persons may benefit from the medical use of marijuana; and

WHEREAS, subsequent to the voters' approval of Amendment 20, the possession, sale and use of marijuana, with the sole exception of those activities set forth in Article XVIII, remains unlawful under state law; and

WHEREAS, both prior to and subsequent to the adoption of Article XVIII, the use of marijuana for any purpose, including the treatment of debilitating medical conditions, was and remains unlawful under federal law; and

WHEREAS, in 2010, the Colorado General Assembly adopted House Bill 10-1284, as codified at C.R.S. § 12-43.3-101 et seq. ("Colorado Medical Marijuana Code"), which authorizes a municipality to adopt and enforce an ordinance licensing, regulating, or prohibiting the cultivation or sale of medical marijuana; and

WHEREAS, Section 12-43.3-106 of the Colorado Medical Marijuana Code further authorizes a municipality by either a majority of registered electors of the municipality voting at a regular or special election or a majority of the members of the governing board for the municipality to vote to prohibit the operation of medical marijuana centers, optional premises cultivation operations, and medical marijuana-infused products manufacturers ' licensed businesses and Section 12-43.3-310 of the Colorado Medical Marijuana Code authorizes municipalities to enact "local government zoning, health, safety, and public welfare laws for the distribution of medical marijuana that are more restrictive than [the Colorado Medical Marijuana Code];" and

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WHEREAS, on August 24, 2010, the City Council adopted Resolution 10-68 to take advantage of the local option provided for in Section 12-43.3-106 of the Colorado Medical Marijuana Code, by presenting to the registered electorate of the City of Castle Pines at the coordinated general election on November 2, 2010, the question of whether to prohibit the operation of medical marijuana centers, optional premises cultivation operations, and medical marijuana-infused products manufacturers from operating within the City; and

WHEREAS, at the November 2, 2010 election, the voters of Castle Pines approved the immediate prohibition of such commercial land uses within the City; and

WHEREAS, the City Council desires to codify the voters' ban on commercial medical marijuana land uses as well as to regulate the manner in which medical marijuana is cultivated, produced, possessed or processed by a patient or a primary caregiver within a residential structure via this Ordinance; and

WHEREAS, anecdotal evidence known to the City Council from news media and stories, reports, and studies commonly available on the Internet reveal that the high value and easy portability of marijuana makes persons and businesses that cultivate, acquire, possess, store, produce, prepare, manufacture, package, use, sell, administer, dispense, distribute, or transport marijuana likely targets for robbery, burglary, theft, assault, and other related crimes; and

WHEREAS, the City Council finds that large-scale cultivation, production, and processing of medical marijuana plants in residential buildings may produce a variety of deleterious effects upon the integrity of residences and the welfare of residential communities, including, but not limited to, potentially unsafe structural alterations or additions to residences; extraordinary demands on and potentially unsafe alterations to residential electrical systems; additions of conduits for water and humidity that can facilitate the growth of dangerous or damaging molds and fungi; increased risk of fire and electrocution due to the proximity of electrical and water supplies; potential toxicity of residential air supply due to the use of heating devices, generators, and the addition of carbon monoxide to growing environments; and increased risk of fire due to the presence of hazardous materials such as fertilizers and other flammable or volatile substances used in the cultivation, production, and processing of medical marijuana plants; and

WHEREAS, permitting individuals to cultivate, acquire, possess, store, produce, prepare, manufacture, package, use, sell, administer, dispense, distribute, or transport medical marijuana in any form pursuant to Article XVIII without appropriate local regulation could create conflicts with the goals and objectives of the City's Comprehensive Plan, be inconsistent with residential land uses and other uses, or otherwise be detrimental to the public health, safety, and welfare; and

WHEREAS, there is no reference to or evidence contained in Article XVIII to establish that Article XVIII is intended to address or regulate land use, planning, development, or operations of individuals engaging in the production, distribution, or dispensing of medical marijuana; and

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WHEREAS, C.R.S. Section 29-20-104 grants cities the authority to plan for and regulate the planned and orderly use of land on the basis of the impact thereof on the community; and

WHEREAS, the City of Castle Pines is authorized pursuant to C.R.S. Section 31-15-401 to exercise its police powers to promote and protect the health, safety, and welfare of the community and its inhabitants; and

WHEREAS, the City Council has determined that this Ordinance furthers the public health, safety, convenience and general welfare of the community; and

WHEREAS, in accordance with Section 1 09 of the Zoning Ordinance, this proposal to amend the Zoning Ordinance has been referred to the Planning Commission, which has recommended its approval; and

WHEREAS, in accordance with Sections 109 and Ill of the Zoning Ordinance, notice of public hearing on this Ordinance held before the Planning Commission and before the City Council prior to adoption hereof was duly published at least fourteen days prior to each such hearing.

THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CASTLE PINES, COLORADO:

Section 1. The recitals contained above are incorporated herein by reference and are adopted as findings and determinations of the City Council.

Section 2. Section 206 of the Zoning Ordinance, entitled "Exclusion of Uses" 1s hereby amended by the addition of the following sentence:

Pursuant to the approval by the voters at the general election held on November 2, 2010, use of any land within the City as a Medical Marijuana Business is specifically an excluded and prohibited use in all zoning districts or on any land within the City.

Section 3. The land use/zoning district matrix set forth following Section 213 .04 of the Zoning Ordinance is hereby amended by the addition of the following new rows to read as follows:

LAND USE ZONING A-1 LRR RR ER SR MF MH B c LI DISTRICT Medical Marijuana Businesses

Section 4. The Zoning Ordinance is hereby amended by the addition of a new Section 23A, entitled "Regulation of Residential Cultivation of Medical Marijuana by Patients and Primary Care-givers" to read in full as follows:

GI

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Section 23A- REGULATION OF RESIDENTIAL CULTIVATION OF MEDICAL MARIJUANA BY PATIENTS AND PRIMARY CARE-GIVERS

Section 2301A. Intent.

The intent of this Section 23A is to:

(a) Implement the local authority conferred to the City of Castle Pines by Article XVIII, Section 14 of the Colorado Constitution, the Colorado Medical Marijuana Code, and the Colorado Medical Marijuana Program; and

(b) Protect the lawful rights of Patients and Primary Care-givers to reasonably cultivate, produce, possess, and process medical marijuana in accordance with Article XVIII, Section 14 of the Colorado Constitution, the Colorado Medical Marijuana Code, and the Colorado Medical Marijuana Program; and

(c) Balance the reasonable and lawful rights of Patients and Primary Care-givers with the protection of the health, safety, and welfare of the public through the prevention and mitigation of deleterious and negative secondary effects that may occur or are likely to occur from the presence of medical marijuana in the City of Castle Pines; and

(d) Supplement, through regulation of matters of local concern as authorized by state law, the provisions of Article XVIII, Section 14 of the Colorado Constitution, the Colorado Medical Marijuana Code, and the Colorado Medical Marijuana Program.

Section 2302A. General Requirements.

(a) It shall be unlawful for any person to cultivate, produce, or process Medical Marijuana Plants within the City of Castle Pines except for a person lawfully registered as a Patient or lawfully licensed as a Primary Care-giver, and provided that:

( 1) The cultivation, production, and processing occurs within the Primary Residence of the Patient or the Primary Care-giver; and

(2) The cultivation, production, and processing fully complies with all applicable provisions of Article XVIII, Section 14 of the Colorado Constitution, the Colorado Medical Marijuana Code, the Colorado Medical Marijuana Program, this Article, and all applicable requirements of all City of Castle Pines building and safety codes, as may be amended; and

(3) Medical Marijuana is not cultivated, produced, or processed within a garage, whether attached or detached, or other structure designed or intended for the keeping or storage of vehicles, equipment, or goods; and

(4) Medical Marijuana is not cultivated, produced, or processed within any common area(s) of a multi-family or single-family attached residential property; and

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(5) Medical Marijuana is not cultivated, produced, or processed in the yard, lot, or other area or structure located outside of the Primary Residence, including but not limited to outdoor gardens, ancillary or accessory buildings, greenhouses, sheds, or storage units; and

(6) Medical Marijuana is not produced or processed with the use of chemical(s) for the purposes of enhancing, concentrating, or extracting tetrahydrocannabinol (THC) from Medical Marijuana or Medical Marijuana Plants; and

(7) The area of a Primary Residence devoted to the cultivation, production, or processing of Medical Marijuana Plants, including the keeping, storage, and maintenance of all materials, supplies, tools, equipment, and paraphernalia associated with the cultivation, production, and processing of Medical Marijuana Plants, does not exceed the following:

a. Within a single-family detached dwelling unit, a maximum contiguous one hundred fifty (150) square foot area; or

b. Within any residential structure other than a single-family detached dwelling unit, a maximum contiguous one hundred (1 00) square foot area; and

(8) The cultivation, production, and processing is in compliance with all applicable Home Occupation regulations including, but not limited to, restrictions on physical features, building character, and business operations. In the event of a conflict between the provisions of this Section 23A and the City' s restrictions on Home Occupations, the more restrictive provision(s) shall govern.

(b) It shall be unlawful for any person to cause or allow the illicit discharge, emission, disposal, pouring, or pumping of chemicals and substances used in the cultivation, production and harvesting of medical marijuana either directly or indirectly to any stormwater conveyance or sanitary sewer systems.

Section 2303A. Maximum Number of Medical Marijuana Plants.

It shall be unlawful for Patients or Primary Care-givers to cultivate, produce, possess, or process, or permit to be cultivated, produced, possessed, or processed more than the following maximum number of Medical Marijuana Plants within the Patient's or Primary Care-giver's Primary Residence:

(a) A Patient may cultivate, produce, possess, or process, or permit to be cultivated, produced, possessed, or processed within the Patient's Primary Residence, the lesser of either:

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(1) Six (6) Medical Marijuana Plants with three (3) or fewer being mature, flowering plants that are producing a useable form of marijuana for each Patient residing in the Primary Residence; or

(2) The maximum number of Medical Marijuana Plants necessary to alleviate the Patient's or Patients' chronic or debilitating disease(s) or medical condition(s) as evidenced by the Patient's or Patients' Physician's written professional opinion or recommendation;

but in no event shall the maximum number of Medical Marijuana Plants within a Patient's Primary Residence exceed thirty (30) Medical Marijuana Plants regardless of size or stage of growth or the number of Patients residing at the Primary Residence.

(b) A Primary Care-giver may cultivate, produce, possess, or process, or permit to be cultivated, produced, possessed, or processed within the Care-giver' s Primary Residence, the lesser of either:

(1) Six (6) Medical Marijuana Plants with three (3) or fewer being mature, flowering plants that are producing a useable form of marijuana for each Patient of the Primary Care-giver; or

(2) The aggregate maximum number of Medical Marijuana Plants necessary to alleviate the Primary Care-giver's Patients' chronic or debilitating disease(s) or medical condition(s) as evidenced by the Patients' Physicians' written professional opinion(s);

but in no event shall the maximum number of Medical Marijuana Plants within a Primary Care-giver's Primary Residence exceed thirty (30) Medical Marijuana Plants regardless of size or stage of growth.

(c) For a Primary Residence at which one (1) or more Primary Care-givers and/or one (1) or more Patients reside, each Primary Care-giver and each Patient may cultivate, produce, possess, or process, or permit to be cultivated, produced, possessed, or processed the maximum number of Medical Marijuana Plants provided in subsection (a) (1) or (2) or in subsection (b) (1) or (2), above, as applicable, provided that, in no event, shall the maximum number of Medical Marijuana Plants within the Primary Residence exceed thirty (30) Medical Marijuana Plants regardless of size or stage of growth and regardless of the total number of Care-givers and Patients residing within the Primary Residence.

Section 2304A. Exterior Impacts Unlawful.

(a) It shall be unlawful for the cultivation, production, possession, or processing of Medical Marijuana Plants within a Primary Residence to be perceptible from the exterior of the Primary Residence by means including, but not limited to :

(1) Common visual observation, including any form ofsignage;

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(2) Odors, smells, fragrances, or other olfactory stimulus generated by the cultivation, production, possession, or processing of Medical Marijuana Plants; or

(3) Light pollution, glare, or brightness of artificial illumination associated with the cultivation, production, possession, or processing of Medical Marijuana Plants.

Section 2305A. Special Provisions for Primary Care-givers.

(a) The cultivation, production, or processing of Medical Marijuana and Medical Marijuana Plants by Primary Care-givers for Patients is a Class 1 home occupation as defined by the Castle Pines Zoning Ordinance and the sale or distribution of Medical Marijuana to Patients is a taxable transaction in accordance with state and local law. Primary Care-givers shall therefore comply with other applicable provisions of the Castle Pines Zoning Ordinance as well as the business licensing and sales tax licensing and reporting requirements set forth in applicable provisions of the Ordinances of Castle Pines.

(b) A Primary Care-giver shall provide the registry identification card number of each of his or her Patients to employees and contractors of the City and to law enforcement agencies, upon inquiry in the course of their official duties while investigating compliance with the requirements of this Section 23A.

(c) To the extent required by law, documentation that evidences the name, address, or other information of a Patient or Primary Caregiver including, but not limited to, applications, permits, and correspondence, shall be maintained by the City as confidential. No person shall be permitted to gain access to such confidential documentation except for authorized employees and contractors of the City in the course of their official duties and authorized employees of state or local law enforcement agencies.

Section 2306A. Private Covenants Not Affected.

This Section 23A is not intended to impair and does not supersede or override provisions of any lawful privately imposed contracts, covenants, conditions, or restrictions that are more restrictive regarding the use of a Primary Residence for the cultivation, production, possession, and processing of Medical Marijuana or Medical Marijuana Plants. Nothing in this Section 23A is intended to defer to or to permit privately imposed contracts, covenants, conditions, or restrictions that would authorize any activity or action prohibited or regulated by this Section 23A. The City shall not enforce private covenants except to the extent specifically provided by law.

Section 2307 A. Penalties for Violation.

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(a) In addition to any other penalties that may exist under state, federal and local laws, any person charged with a violation of this Section 23A, upon conviction or plea of nolo contendre thereof, shall be punished as follows:

(1) For an offense involving the cultivation, production, possession, or processing of one (1) or more Medical Marijuana Plants in excess of the maximum number of Medical Marijuana Plants permitted by this Section 23A, such fine shall be not less than Seven-Hundred Fifty Dollars ($750.00) and not more than One Thousand Dollars ($1 ,000.00) for each Medical Marijuana Plant cultivated, produced, possessed, or processed in excess of such maximum; or

(2) For any other violation of this Section 23A not set forth in subparagraph (1) above, such fine shall be not less than Five Hundred Dollars ($500.00) and not more than One Thousand Dollars ($1,000.00) for each offense.

(b) Each person violating any provision of this Section 23A shall be guilty of a separate offense for each and every day during any portion of which any violation of this Section 23A is committed, continued, or permitted by such person.

(c) The Castle Pines Municipal Court shall retain the discretion to suspend, reduce, or impose a lesser fine upon recommendation of the Municipal Court prosecutor pursuant to a mutually accepted plea agreement with the defendant.

Section 2308A. Search Warrants Authorized.

(a) The City Council declares that a violation of this Section 23A involves a serious threat to public safety or order within the meaning of Rule 241 ( a)(l) of the Colorado Municipal Court Rules of Procedure.

(b) If the owner or occupant of the premises denies officials of the City's Community Development Department or other authorized official permission to inspect the residential structure, such official may request the Castle Pines Municipal Court to issue a search warrant for the inspection of the premises pursuant to the procedure and standards as set forth in Rule 241 of the Colorado Municipal Court Rules of Procedure.

(c) The Castle Pines Municipal Court may issue a search warrant authorizing officials of the City' s Community Development Department or other authorized official or law enforcement personnel to inspect a residential structure for the cultivation, production, possession, or processing of Medical Marijuana Plants in accordance with Rule 241 (b) of the Colorado Municipal Court Rules of Procedure. Any search warrant issued pursuant to this Section 23A shall fully comply with the applicable provisions of Rule 241 of the Colorado Municipal Court Rules of Procedure.

(d) The Castle Pines Municipal Court may impose such conditions on a search warrant as may be necessary to protect the private property rights of the owner of the

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premises to be inspected or to otherwise ensure that the warrant complies with applicable law.

(e) It shall be unlawful for any owner or occupant to deny officials of the City's Community Development Department or other authorized official or law enforcement personnel access to the property owned or occupied by such owner or occupant if the authorized person presents a warrant issued pursuant to this Section 23A.

Section 5. Section 3602 of the Zoning Ordinance, entitled "Definitions" is hereby amended by the addition of the following definitions:

Colorado Medical Marijuana Code means Sections 12-43.3-101, et seq., of the Colorado Revised Statutes, as may be amended.

Colorado Medical Marijuana Program means that program defined by Section 25-1.5-1 06(2)( d) of the Colorado Revised Statutes, as may be amended.

Contiguous, in terms of determining the area devoted to the cultivating, producing, possessing, or processing of medical marijuana and Medical Marijuana Plants, means an uninterrupted expanse of space on the same floor or level of the Primary Residency that can be measured by framing the area with four or more continuous and connected straight lines. The space within a single room which is defined by permanent perimeter walls is contiguous; the space within adjoining rooms divided by a permanent wall or permanent structure but accessible via a common doorway or connected by a common hallway is contiguous; however, nonadjacent spaces separated by two (2) or more permanent walls or separated by floors or levels of the building are not contiguous.

Lot means that real property around the Primary Residence and the buildings thereon that are commonly used for domestic and residential purposes.

Marijuana shall have the meaning provided in Section 12-22-303(17) of the Colorado Revised Statutes, as may be amended.

Medical marijuana business means any enterprise or activity, whether or not for profit, gain, or benefit, that is undertaken for the purpose of cultivating, producing, possessing, storing, processing, dispensing, distributing, or selling medical marijuana, and without limiting the foregoing, including specifically Medical Marijuana Centers, Medical Marijuana Infused Product Manufacturers, and Optional Premises Cultivation Operations. A Medical Marijuana Business does not include the lawfully authorized activities undertaken by a Patient or Primary Care-giver in accordance with this Zoning Ordinance.

Medical Marijuana Center means that business described in Section 12-43.3-402 of the Colorado Medical Marijuana Code, as may be amended, which would sell medical marijuana to a Patient or a Primary Care-giver as these persons are defined by Section 14 of Article XVIII of the Colorado Constitution.

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Medical Marijuana Infused Products Manufacturer means that business described in Section 12-43.3-404 of the Colorado Medical Marijuana Code, as may be amended.

Medical Marijuana Plants means marijuana plants, seedlings, or any part thereof in a living condition that are lawfully cultivated, produced, possessed, or processed pursuant to the provisions of Article XVIII, Section 14 of the Colorado Constitution, the Colorado Medical Marijuana Code, the Colorado Medical Marijuana Program, and other applicable laws or regulations governing the cultivation, production, possession, or processing of medical marijuana.

Medical use means that use described and defined in Article XVIII, Section 14 of the Colorado Constitution, the Colorado Medical Marijuana Code, and the Colorado Medical Marijuana Program.

Optional Premises Cultivation Operation means that business described in Section 12-43.3-403 of the Colorado Medical Marijuana Code, as may be amended.

Patient means a person who meets the definition of patient under Article XVIII, Section 14(1)(d) ofthe Colorado Constitution and applicable law.

Physician means a doctor of medicine as defined in Article XVIII, Section 14( 1 )(e) of the Colorado Constitution and meeting all requirements of Section 25-1.5-106, C.R.S.

Primary Care-giver means a person who meets the definition of primary care-giver under Article XVIII, Section 14(1)(£) ofthe Colorado Constitution and applicable law.

Primary Residence means the place that a person, by custom and practice, makes his or her principle domicile and address and to which the person intends to return, following any temporary absence, such as vacation. Residence is evidenced by actual daily physical presence, use, and occupancy of the Primary Residence and the use of the residential address for domestic purposes, such as, but not limited to, slumber, preparation of and partaking of meals, regular mail delivery, vehicle and voter registration, or credit, water, and utility billing. A person shall have only one Primary Residence. A Primary Residence shall not include accessory buildings.

Section 6. Severability. If any portion of this Ordinance is found to be void or ineffective, it shall be deemed severed from this Ordinance and the remaining provisions shall remain valid and in full force and effect.

Section 7. Effective Date. This Ordinance shall become effective thirty days after publication following final passage.

INTRODUCED, READ, AND PASSED ON FIRST READING, AT A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF CASTLE PINES, COLORADO the 22nd day of November, 2011.

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READ, PASSED, AND ADOPTED ON SECOND READING, AT A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF CASTLE PINES, COLORADO the 13th day of December, 2011.

Approved as to form:

Sharon DeRouen, City Clerk Linda C. Michow, City Attorney

CERTIFICATION OF PUBLICATION

I hereby attest and certify that the within and foregoing Ordinance was introduced and read on first reading at a regular meeting of the Castle Pines City Council on November 22, 2011; published in full in the Douglas County News-Press; and finally passed and adopted by the City Council on December 13, 2011 following a duly noticed public meeting and ordered published by title only, with amendments if any, one time in the Douglas County News-Press on December 22, 2011 .