Grow variance denied

Asking for a Variance Jason and Joe Licata appeared before the Gilpin County Board of Commissioners for the second meeting in a row requesting a variance to expand their marijuana grow operation.

John Scarffe, Gilpin County.  The owners of Rocky Mountain Organics (RMO) requested a variance to expand their facility for a marijuana grow operation during a regular meeting of the Gilpin County Board of County Commissioners at 9 a.m. on Tuesday, April 11, 2017. The Board also rescinded fire restrictions and approved the 2017 Annual Fire Operating Plan.

The variance request from RMO owners Jason and Joe Licata was continued from the Board’s March 28, 2017 meeting, when Community Development Director Tony Petersen presented the variance request. RMO asked to expand its marijuana grow facility at 5312 Highway 119 to a new, adjacent, detached 2,500-square-feet building, which is an existing non-conforming use, Petersen said. The variance is needed because the Gilpin County zoning code states that a nonconforming use or structure cannot be increased in floor area.

Jason Licata said the grow facility was necessary to supply RMO with the product, and it would allow him to vacate his grow facility in Pueblo. In the applicant’s statement, RMO wrote that Alternative Holistic Healing, dba, RMO, is asking for the variance to construct a new building at the same location.

RMO has two recreational shops in Gilpin County and a grow in Pueblo, which they are selling. “We would prefer to supply our own product but due to the size of our current grow we are unable to do so,” RMO wrote. “We currently live and operate in Gilpin County and would prefer to have all business activities to stay in, and benefit the County with the expansion of our grow.”

Petersen wrote in his staff report that the site is isolated and the impact on neighboring properties would be insignificant, but the expansion could cause adverse fiscal impacts to the Community Development  Administration and Sheriff’s departments in the form of permitting, monitoring and code enforcement.

“The applicant does not dispute the potential for adverse County fiscal impact,” Petersen wrote. To mitigate potential impacts, RMO has offered to voluntarily pay an impact fee of $3.6 per square foot per month, which would generate $108,000.

During Public Comment, a Gilpin County resident asked the Board to consider the numerous impacts the grow would have, and the Board voted to continue the public hearing to April 11, 2017.

At the April 11 meeting, Sheriff Bruce Hartman presented a memo expressing his concerns. “As a Peace Officer, I cannot endorse criminal activity. Albeit it is a Federal crime, it is illegal under the U.S. codes,” Hartman wrote. He also was confused by the voluntary impact fee.

“Does this mean there is anticipated criminal behavior that we’ll need to deal with?” Hartman wrote. “Will our office be tasked to do compliance checks rather than Building and Zoning? Just what are the ‘impacts’ that are anticipated, or rather, is it a way to try and get a favorable vote for this application?”

Commissioner Ron Engels said that you don’t have any way to determine what the impact might be for a standard grow and asked what kind of compliance issues are involved. Jason Licata replied that the State has its own compliance officers who come up and check the grow. There will be no change except square footage.

Petersen said he believes it would have little impact. The impact fee was first calculated on a per-plant basis and then by square footage. In real dollars, it’s about a 15 percent impact.

Engles asked, “Doesn’t that set us up for saying it’s exactly a tax, if no one can identify the impact? At that point, the Board voted to convene into an executive session.

Upon returning from the executive session, Board Chair Gail Watson said they had to receive legal advice and the Board was not in favor of the variance because the Commissioners have not been able to identify a way to protect themselves. Commissioner Linda Isenhart said they are struggling with how to identify the impact fees.

“It’s a nonconforming use. The way I read it, the floor space would have to be hooked on to the existing structure, which is another concern,” Isenhart said.

Engles said: “I want to see the business grow and succeed, but this isn’t the way to go about it.” The Board needs to step back from the ordinance that does not allow grow operations and rework that.

Jason Licata said they brought this up to get either a yes or no. “We will go somewhere else. We love this county.” Joe Licata said they have been fighting for the last three years to get this done.

Engels moved to disallow the variance. Isenhart seconded the motion, and the Board approved it.

Sheriff Hartman introduced a resolution to rescind the fire restrictions imposed at the March 14, 2017 Board meeting. This year, the Sheriff’s Office will be regularly asking for fire restrictions and then rescinding them.

County Emergency Manager Kevin Armstrong submitted the 2017 Annual Fire Operating Plan and said very few changes were made this year.
The plan authorizes emergency personnel to spend up to $50,000 without seeking approval from the County Commissioners. Sheriff Pelle, of Boulder, will have authorization up to $100,000, Hartman said.

Hartman explained that the average air tanker costs a minimum of $10,000 but could go to $15,000. “$100,000 is very gracious. Should we have a major fire break out someone from the Board or the County manager would be on board.”

Engels asked how the plan makes sure jurisdictions are covered when personnel cover a fire.  He got an earful from Black Hawk when an officer was asked to cover his jurisdiction.    Hartman said that could be interpreted as crossing lines. When the former Fire Chief was here, he and Black Hawk had a great protocol, and they need to be sure that is spelled out. Engels said that’s what they are trained to do — make sure every jurisdiction is covered in case something else happens.

The Board adopted the 2017 Annual Fire Operating Plan. The next meeting of the Gilpin County Board of County Commissioners will be at 9 a.m. Tuesday, April 25, 2017 at the Gilpin County Courthouse, 203 Eureka Street, Central City.