The Field

Pitkin County & Colorado’s Early Experience with Legalized Weed

With the recent legalization of marijuana in the State of Colorado for recreational use, the nascent medical marijuana industry that had provided marijuana to those with doctors’ prescriptions expanded to recreational marijuana shops and grow operations. As with the rest of the state, the Aspen area has seen retail shops opening and grow operations proposed. Some of these land use proposals have been approved, and some not. This is an area of land use that has provoked considerable controversy, as this “green” boom does not come without its issues. Questions of safety, impacts on health, issues with driving while under the influence, and social acceptance of a substance that has so long stood in the shadows of society have entered the daily discussion. And now, land use has come into play.

The review of development applications for marijuana grow operations has focused on issues of land use compatibility. Our office, Stan Clauson Associates, has represented clients concerned with impacts on adjacent residential properties. We have advocated that grow operations should be restricted to areas of the county where the impacts from this type of intensive agriculture can be mitigated and controlled. Typically, applicants for grow operations have relied on “agriculture” as a permitted use in land use codes. Moreover, in Pitkin County, as in most rural counties, agriculture and residential uses are typically seen as compatible in most zone districts. So the question arises: is marijuana cultivation agriculture, or is it something else?

An alternative to the co-location of marijuana grow operations and residential uses may be found by applying the distinction made in the Pitkin County Land Use Code that livestock feed lots are not agriculture—feed lots are recognized as an industrial use. This distinction is important because marijuana grow operations require a similar intensity of use and concentration of resources, and the potential for impacts to neighboring properties should be considered. Without directly opposing marijuana operations, this approach stresses that grow operations are not traditional agriculture. Rather, they belong to a genre of industrial agriculture that shares little with the growing of hay or potatoes, and must be located with sensitivity. To support this position, experts in the field of marijuana horticulture were brought in to testify in recent land use reviews. Their testimony supported the proposition that commercial marijuana cultivation posed significant industrial impacts.

As found in nature, marijuana grows during the warm summer months, pushing out its flower, commonly referred to as the “bud,” as the days shorten. When growing the plants for the recreational market, in order to ensure a steady stream of product, ideal conditions must be maintained year round. This involves the use of high-intensity grow lamps, complex heating and ventilation equipment, and constant care. Ideally, warehouses, with their mechanical systems that can regulate temperature and humidity, are the most appropriate place for marijuana cultivation. Warehouses also locate grow operations in the correct context, generally away from residential areas where impacts like smell, traffic, and required security measures will not become a nuisance. As warehouse space is scarce in the Aspen resort area, grow operations may propose greenhouses in areas that may be predominantly residential. Applicants typically state that the greenhouses will not emit light and that the smell of marijuana, which can be quite considerable, can be mitigated. However, it remains to be seen how accurate these statements are until the first operations are up and running.

Marijuana has elicited a wide array of reactions from Pitkin County residents in a way that just does not happen with the cultivation of potatoes. Our area is well known for its ‘live and let live’ attitude, and a strong majority of voters in Pitkin County supported the legalization of recreational pot. But some in the community have become concerned that marijuana cultivation, and the resulting impacts, may detract from residential qualities and property values. This is a new twist on the rejection of counter-cultural attitudes typically associated with marijuana sales and consumption, and often includes otherwise liberal proponents of legalization.

One strong voice in the discussion has been the neighborhood caucuses organized in the county. Drawing on an Algonquin term describing their concept of representative democracy, these caucuses are advisory boards made up of the residents of a particular area. The county uses these caucuses and their recommendations to ensure that residents have a grassroots voice in determining local land use issues. Most of the Pitkin County caucuses have recommended a moratorium on marijuana cultivation and urged broad restrictions on commercial activities other than traditional agriculture. Decision makers have supported and followed these recommendations, instituting temporary moratoria on the licensing of new operations.

Legal pot is likely here to stay. While still illegal under federal law (marijuana use at Colorado ski areas is still prohibited, as the ski areas are located on National Forest lands), the general trend is for the continuing relaxation of prosecution across the country. The State of Colorado expects to reap a substantial income from the taxation of marijuana sales. These receipts, estimated to be $40 million per year or more, are hard to give up. The state has indicated that some of this money will go into educational efforts and preventing under-age use. To the visitor, things do not look much different, other than drop boxes at the airport that provide a place to deposit unused marijuana product before traveling interstate and the shops frequented by curious visitors looking to rekindle their youthful marijuana habit. However, with respect to land use, there will be a continuing conflict and, no doubt, the need for legal rulings as to whether commercial marijuana cultivation is an agricultural or an industrial use.

by Patrick Rawley, AICP, ASLA. Patrick works for Stan Clauson Associates, Inc. and lives in Basalt, Colorado, within a mile of the first commercial grow operation licensed in Pitkin County.