Widgetized Section

Go to Admin » Appearance » Widgets » and move Gabfire Widget: Social into that MastheadOverlay zone

Marijuana grow houses and zoning laws reviewed

By Courtney Gibb
Special to The SUN

Question:

What are the zoning laws for grow houses?

Answer: The Colorado Constitution permits both the personal and commercial cultivation of medical and recreational marijuana. Both types of cultivation are governed by the Colorado Constitution and by local governments.

First, personal cultivation is expressly permitted by Amendment 20 and Amendment 64.

Amendment 20, which allows patients to engage in the medical use of marijuana to treat a debilitating medical condition Colorado, allows patients and their primary caregivers to possess no more than six marijuana plants (with three or fewer being mature, flowering plants that are producing a usable form of marijuana), and two ounces of marijuana, Co. Const. Art. 18 § 14(4)(a)(2), Co. Const. Art. 18 § 14(4)(a)(1). Amendment 20 prohibits this use from being in the plain view of, or in a place open to, the public. Co. Const. Art. 18 § 14(5)(a)(2).

Amendment 64 allows for the personal cultivation of marijuana by adults 21 and over, Co. Const. Art. 18 § 16(3)(b). Like Amendment 20, personal cultivation under Amendment 64 is limited to six plants (three mature and three flowering), which must be cultivated in an enclosed, locked space, and must not be cultivated openly or publicly, Co. Const. Art. 18 § 16(3)(b).

Although Amendment 20 and Amendment 64 prevent local governments from directly limiting a patient’s or citizen’s ability to cultivate, many have opted to impose limits on cultivation via zoning restrictions. For example, some local governments have enacted ordinances limiting the total number of plants per residence, regardless of the number of inhabitants. Local zoning regulations allow for a balance between protecting constitutional rights and the health and safety of the community. Denver, for example, limits the number of plants in a dwelling to no more than 12, Denver Code Art. 11 §8.4.1(a). In addition to a 12 plant-per-dwelling restriction, Fort Collins also has restrictions on cultivation in multi-family residences. Specifically, Fort Collins has banned personal cultivation of marijuana in any dwelling in a duplex, multi-family or single family attached dwelling, Fort Collins Code, Art. IX §12-142(b). These local restrictions on personal cultivation have never been challenged.

Commercial cultivation of marijuana is regulated primarily by local governments. The majority of local jurisdictions restrict cultivation facilities to industrial, agricultural, and/or commercial zones. In addition, both the state and local governments have enacted regulations restricting the proximity of cultivation facilities to schools or other areas where children are likely to congregate. While zoning and setbacks vary in each locality depending on its size and character, a number of Colorado jurisdictions impose setback requirements between cultivation facilities and schools.

The statute governing medical marijuana requires that state-licensed medical cultivation facilities be more than 1,000 feet from any school park, child care, drug or alcohol treatment facility, or the main campus of a college, university or seminary, but allows local governments to vary these distance restrictions through rule or regulation, C.R.S. § 12-43.3-308(1)(a). While Amendment 64 leaves it entirely up to local governments to regulate state-licensed recreational marijuana establishments, many localities impose these same restrictions. Most of these regulations include setbacks from schools, daycares and drug treatment facilities, as well as limiting the use to industrial, agricultural and commercial zones. A number of jurisdictions also include setbacks from residential areas and requirements that cultivation facilities be equipped with an odor-mitigation filtration system so as to minimize any potential nuisance.

The Colorado Bar Association welcomes your questions on subjects of general interest. This column is meant to be used for general information only and not specific legal advice; consult your own attorney for advice on specific situations. To submit general legal questions to the CBA, please email Courtney Gibb at cgibb@cobar.org.

About Legal Lines

Legal Lines is a question and answer column provided as a public service by the Colorado Bar Association. Attorneys answer questions of interest to members of the public for their general information.

About the Colorado Bar Association

The Colorado Bar Association is a voluntary bar association with more than 18,000 members — almost three-quarters of all attorneys in the state — founded in 1897. The bar provides opportunities for continuing education, volunteering and networking for those in the legal profession while upholding the standards of the bar. The bar likewise works to secure the efficient administration of justice, encourage the adoption of proper legislation and perpetuate the history of the profession and the memory of its members. For more information, visit cobar.org.

This story was posted on August 28, 2014.