Pot restrictions could invite a legal test for Parachute
January 10, 2014
PARACHUTE — As towns throughout Garfield County figure out how to deal with the legalization of marijuana for use by those over 21, the town council here is hopeful it has the issue well in hand and tightly controlled.
But town attorney Ed Sands of Rifle conceded this week that a challenge to Parachute’s pot regulations is a possibility.
“We all hope we’re not the ones to have it tested,” said Sands, while discussing the town’s marijuana law with the Post Independent.
The Town Council last September enacted an ordinance detailing the zoning and other restrictions for growing marijuana in one’s own home, as permitted under state laws regulating medical marijuana since the year 2000 and recreational marijuana since last year.
Colorado voters legalized medical marijuana more than 13 years ago, and legalized so-called “recreational marijuana” for those over 21 in November 2012. But the ballot questions in both elections permitted local jurisdictions, such as county and municipal governments, to disallow the cultivation, sale, and other processing activities within the county’s or town’s boundaries.
Only the right to grow, possess and use pot on a personal basis was guaranteed under the constitutional amendments passed in the two elections. Every citizen has the right to grow six plants at different stages of maturity, and smoke the resulting green leafy substance, under state laws written in compliance with the constitutional amendments.
The Parachute Town Council has forbidden all commercial activities connected to the new marijuana industry, and in September passed an ordinance restricting where and how much pot people can grow in their homes.
Section One of the law, known as ordinance number 657, clearly categorizes the home-cultivation of six plants per person as a permitted use in the Rural Agricultural, Low Density Residential, Medium Density Residential and High Density Residential zone districts. But that “permitted use” allows only up to 12 plants per household, or the allotment for two resident adults.
In the second section, the ordinance states that a “special review” by the town is required for those seeking to grow more than 12 plants in a home, even in circumstances where there are more than two adults living in the home and more than 12 plants could be grown according to state law.
In Parachute, said Sands, anyone seeking to grow more than 12 plants in a household must undergo a special use review by the town government, and if a permit is granted the cultivation must take place in a commercial space separate from the home and located in a commercial zone rather than a residential zone. The commercial zones include the Old Town Center, Neighborhood Commercial, Highway Tourist, Service Commercial and Limited Industrial zones.
“So there’s a way for somebody to exercise their constitutional right,” Sands said, noting that these provisions are the same as have been enacted by the city and county of Denver and “other municipalities around the state.”
He added that the wording of Parachute’s ordinance also gets around prohibitions against pot cultivation imposed by landlords or homeowners’ associations, which have begun enacting such restrictions in some parts of the state.
“On the Front Range, you’re starting to see those kinds of prohibitions,” Sands said.
Sands conceded that the commercial-space requirement for growing more than 12 plants per household does carry with it an added cost to the resident, who must find a commercial space to use, lease it, heat it and outfit it with cultivation equipment that may already exist in his or her home.
Another provision of the Parachute pot ordinance states that pot can be smoked only within the confines of a home, and not in the outside areas of the property such as a deck or a yard, which some may view as another contradiction with the state laws, Sands noted.
“There’s no doubt that at some point, somewhere, attorneys will ask those questions through litigation,” he said, expressing the hope of the Parachute Town Council that this town will not be the target of such a legal test.