An application has been submitted by David Cox appealing the decision of the Community Development Director to interpret the processing of crude hemp oil from plants delivered off-site at 753 37 8/10 Road as a prohibited use by the Land Development Code. Under Section 3.1.6 of the Land Development Code, any use that is not specifically listed in the Land Development Code is expressly prohibited, unless it is determined to be similar to an individual use or group of uses listed in the Land Development Code. The appellant claims the decision is incorrect and that the use is similar to processing of foods and vegetables under limited agriculture uses.Advertisment
On December 4, 2017 the applicant met informally with the Community Development Director at Town Hall to discuss the potential for establishing a hemp oil processing use at the location of 753 37 8/10 Road. The following email was submitted to the Community Development Director by the appellant in response to a request that the applicant provide additional information regarding the potential use. After consideration of the request, staff notified David Cox by letter (next page) that unless an amendment to the Land Development Code was granted by the Board of Trustees, the specific use of cannabidiol (CBD) processing was not a permitted or conditional use in any zoning district in the Town of Palisade. No request was made to amend the land development code. Rather an appeal was submitted on December 15 claiming that the decision was an improper reading of the Land Development Code. In seeking the administrative appeal, the appellant has the burden of persuasion and the burden for presenting evidence sufficient to allow the Board to reach conclusions. Included as attachments with this application is all of the documentation submitted by the appellant for consideration. According to Section 3.16C of the 2008 LDC or Section 6.02B1 of the 2017 LDC, when considering an appropriate district for a use not listed in the principal use table, the district intent statement shall be taken into consideration. The subject property is currently zoned Agriculture Forestry Transitional (AFT) the intent statement for which reads as follows: AFT Established to provide for wineries, vineyards and related lodging and commercial activity compatible with the Town’s rural and agricultural character. Development in the AFT district is compatible and complementary to the rural/agricultural surroundings. In addition to agricultural uses, the AFT District, which is identified in the Land Development Code specifically as a “Residential District,” also permits single family residential dwellings at a density of 1 dwelling unit per 2.5 acres. The appellant maintains the use is similar to “processing of fruits or vegetables” which is permitted as a conditional use in the AFT District. Although staff recognizes that cannabis is a plant, the process for extraction of CBD is unique and separate from the characteristics associated with typical food processing. In fact, at the December 12, 2017 meeting the Board of Trustees enacted Ordinance 2017-35 prohibiting the use of a compressed flammable gas as a solvent in the extraction of CBD or other cannabinoids on residential property, as per 9-7-113 of the Colorado Revised Statutes. According to documentation submitted in 2017 for a recreational marijuana store at this location, the applicant confirmed (below) use of the building at 757 37 8/10 Road as a residence since October of 2015. In the letter the applicant indicates that the residence includes a kitchen, full bathroom, and a bedroom. Additionally, the building is assessed by the Mesa County Assessor as a “Farm Ranch Residence.” Even if the use were determined to be similar to food processing, it is unclear that it would, nevertheless, be permitted for the property based on the prohibition established by Ordinance 2017-35. ACTION: The action of the Board of Trustees is to hold a public hearing to consider the appeal of the decision of the Community Development Director. Under Section 7.16.7 of the 2008 LDC or 4.14 D 6 of the 2017 LDC, the following action may be taken by the Board of Trustees acting as the Board of Adjustment: a. May reverse or affirm (wholly or partly) or may modify the order, requirement, decision or determination appealed from and shall make any order, requirement, decision or determination that in its opinion ought to be made in the case before it. To this end, the Board shall have all the powers of the officer from whom the appeal is taken. b. A motion to reverse, affirm or modify the order, requirement, decision or determination appealed from shall include, insofar as practicable, a statement of the specific reasons or findings of fact that support the motion. c. If a motion to reverse or modify is not made or fails to receive the four-fifths (4/5) of members eligible to vote, then appeal shall be denied. (6 of 7 Board members) d. Any motion to overturn a decision shall state the reasons or findings of fact that support the motion. e. Pursuant to Section 31-23-307(4), C.R.S., the Board may vary or modify the application of the regulations in this LDC for the purpose of considering access to sunlight for solar energy devices. Recommendation: Staff recommends that the Board of Trustees affirm the decision of the Community Development Director that without an amendment to the Land Development Code, the specific use of cannabidiol (CBD) processing for crude hemp oil is not a permitted or conditional use in any zoning district in the Town of Palisade. Any motion to overturn the decision shall state the reasons or findings of fact that support the motion. Full text of the appeal and other letters not displayed here are available at the source link below.
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Rejected by Board of TrusteesTue, Jan 23rd 2018
Approved motion to quickly create rules defining acceptable processing of industrial hemp in PalisadeTue, Jan 23rd 2018