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Medical marijuana: It’s up to the town

Based on discussions between the board of county commissioners and later, commissioner direction given to key county staff, it appears the future of medical marijuana dispensaries in Pagosa Country may ultimately be up to the Pagosa Springs Town Council.

Although the board of county commissioners did not pass legislation or amend the county land use code, the commissioners directed county attorney Todd Starr and community development director Rick Bellis to “take the steps necessary” such that medical marijuana dispensaries would be prohibited in areas outside of the incorporated limits of the Town of Pagosa Springs.

“It’s no reflection on the activity; it’s a public safety concern for the dispenser and the community at large,” Bellis said.

In addition, Starr explained that because the county lacks key regulatory tools — read: business licensing and other commerce-related requirements or limitations — dispensaries may be better suited to main street rather than the county’s hinterlands.

Archuleta County Commissioner Bob Moomaw agreed.

Citing the need for additional law enforcement having to respond to far-flung medical marijuana related calls should the county allow dispensaries, Moomaw said, “Trying to control this throughout the county could create huge problems,” and he advocated for pushing dispensaries into a smaller geographic area, i.e. within incorporated town limits.

As county regulations are currently written, opening a medical marijuana dispensary is largely a zoning question. For example, until the county codifies regulations that say differently, a dispensary may be allowed as a home-based business as long as the activity meets the property’s underlying zoning. Nevertheless, because dispensary operation is not explicitly addressed in the county’s land use code, Bellis said, an applicant interested in opening a dispensary would likely go through a variance process, including a hearing before the County Board of Adjustments.

With the commissioners’ decision, and as part of “taking the necessary steps,” the commissioners directed Bellis and Starr to convey the message to town staff and members of the Pagosa Springs Town Council as the two agencies continue discussions on if and how they should regulate medical marijuana dispensaries in the future.

Although the commissioners’ stance must ultimately be codified, either with an amendment to the land use code or with a commissioner resolution, the burden to regulate now lies squarely on the town. However, a look at language within the town’s municipal code creates a legal and regulatory quandary.

Specifically, section 6.1.7 of the code states, “The licensing officer shall approve an application and issue a license unless he or she determines that the business to be operated would violate the laws of the United States, the State of Colorado or the Town ...”

And therein lies the conundrum. While Colorado’s Amendment 20 allows for the purchase, possession, sale, distribution and cultivation of medical marijuana, federal law clearly prohibits the same activities.

A town task force comprised of council member Shari Pierce, police chief Jim Saunders and building inspector James Dickhoff met with town attorney Bob Cole via conference call Wednesday to get Cole’s take on the municipal code language.

“We discussed what other communities are doing to provide information such that the council can make an informed decision,” Dickhoff said.

Neither Dickhoff nor Pierce would discuss their conversation with Cole in greater detail — Pierce declined to comment at all until she spoke with fellow council members — but Dickhoff reiterated that the group’s task was to provide information and options to the town council, which will be the final arbiter in whatever tack the town takes.

“Next week, we’ll look at options with town council and how those options might play themselves out,” Dickhoff said.

Based on a reading of the town’s municipal code, the council could choose to uphold the code as it is written and deny dispensary business licenses altogether, or they could rewrite the code such that dispensaries would be allowed but regulated.

Many Colorado communities, including Durango, are grappling with similar issues and are exploring dispensary regulations that may mirror those in place for liquor stores and bars, including provisions for background checks, distances from schools and day care operations, security requirements, signage and distances from other dispensaries.

Dickhoff, like others challenged with exploring the options and potential pitfalls, said, “I don’t know if any communities have got their hands around it.”

Discussions during a joint town-county meeting last week indicated a willingness to have draft regulations completed this week. However, with the discovery of language within the town’s code, the town task force’s ongoing research, and the commissioners’ decision to put the regulatory onus on the town, it is unclear when — or if — council will regulate medical marijuana dispensaries.

Although many at the table last week discouraged imposing a moratorium or other emergency action related to medical marijuana dispensaries, the conflict between state law and federal law as related to language in the town’s code, may warrant a 60- or 90-day moratorium while town staff and elected officials sort out the regulatory details.