Medical marijuana moratorium in Jeffco: Sixty-year-old zoning code used to shut down dispensary

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The owner of Footprints Health & Wellness was confused by the rationale used by Jefferson County when it tried to shutter his dispensary, as he conceded in an interview last week.

That makes sense to his attorney, Lauren Davis. She says it took three lawyers, one of whom is a zoning expert with more than thirty years of experience in the field, plus a phone call to Jeffco's attorney to figure out the reasoning behind the officials' decision. Turns out they're relying on language in a zoning code that dates back to the 1940s, long before medical marijuana became a constitutionally protected right in Colorado.

Davis represented a dispensary in Castle Rock that was allowed to continue operating after the city's attorney determined that the community's ban on such operations was on shaky legal footing. (Castle Rock had enacted a ban essentially identical to one subsequently struck down in Centennial.) In this instance, however, the circumstances are different, and ever so much more complicated.

Around October, Davis explains, Mark, Footprints' owner, "found space in unincorporated Jefferson County. He calls all the county agencies, does everything he needs to do as far as being properly zoned. He asks them if he's in the right location, if he can do it from this location -- and he reads the zoning plan. It's a PD -- a planned development district, which means there's a master plan of what's allowed in this area. But when he goes to the zoning map and finds the site, it says any use is allowed in this PD zone. Any use."

From there, Davis continues, "he gets all his building permits, fire inspection -- every permit the county requires of him to do his build-out and open up. He gets his certificate of occupancy, he undergoes fire and sprinkler inspection. He goes through a whole handful of city agencies, and then he opens up."

A few months pass. And then...

"Mark gets a cease-and-desist letter from the county saying there's a zoning violation, and a medical marijuana dispensary is not allowed in the PD zone," Davis says. "And we're like, wait a second. The information we saw said any use."

When Davis couldn't find a problem with Mark's actions, she reached out to two fellow attorneys, who were similarly stumped until the county attorney told her she needed to look at the master plan for the shopping center where the dispensary is located. "It went into effect in 1946 or 1947 -- somewhere in there," Davis notes. "Their position is that if a use isn't specifically allowed by the master plan, then it's prohibited. So I talked to the attorney, and I said, 'Under your reasoning, you're basically saying medical marijuana dispensaries aren't allowed anywhere in unincorporated Jefferson County, right? And he said, 'Yep, that's pretty much what we're saying.'"

In Davis's view, there's plenty wrong with this approach, not the least of which is, "it's unconstitutional. This goes back to the argument that, because there's a constitutional amendment making medical marijuana legal, they have to allow it somewhere -- and when Mark opened, there was no specific moratorium or ban in place [as there is now]. So can they prohibit it under the fact that it wasn't specifically allowed under the zoning code, which was created at a time when it wasn't a constitutionally protected use?"

In addition, she's frustrated that none of the county agencies informed Mark of problems at any point in the process.

"Between the building inspector, the fire inspector and all these people he had to work with, they could have told him months ago: 'Wait a second. Have you checked this?' They should have known what's going on if these are the rules. And now he's just a few months into a three-year lease.

"He jumped through every hoop the county asked him to jump through, and then they said, 'You can't do this now' because of this master plan that's never referred to online -- and no officials ever said, 'You need to check the master plan.' You shouldn't have to dig under every rock to find out about something like this. When it says any use, somebody should be able to rely on that statement, and not have to go down to the recorder's office and get a copy of the plan for that development that was put in place over fifty years ago.

"The process is onerous, and whether it was intentional or not, it seems like they've kept this code in their back pocket as a trump card. To use the phrase any use and then not give someone any clue that they need to check somewhere else seems very shady, to say the least."

With that in mind, Davis has appealed the zoning decision on Mark's behalf; they'll make their pitch before the Jefferson County Board of Adjustment on March 17.

At that time, she says, "I hope Jefferson County does the right thing and doesn't rely on this antiquated, difficult system to revoke a zoning license for somebody who's engaged in a constitutional use, who invested time and money and has patients to care for, when Jefferson County could have made it a lot easier for a laymen who wants to comply with the law to be in compliance."

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