(a)

The City Council hereby makes the following findings of fact:

(1)

On November 7, 2000, the voters of the State of Colorado approved Amendment 20. Amendment 20 added Section 14 of Article 18 to the Colorado Constitution and created a limited exception from criminal liability under Colorado law (as opposed to federal law) for seriously ill persons who are in need of marijuana for specified medical purposes and who obtain and use medical marijuana under the limited, specified circumstances described in Amendment 20.

(2)

The intent of Amendment 20 was to enable certain specified persons who comply with the registration provisions of the law to legally obtain, possess, cultivate, grow, use and distribute marijuana without fear of criminal prosecution under Colorado (as opposed to federal) law.

(3)

On November 6, 2012, the voters of the State of Colorado approved Amendment 64. Amendment 64 added Section 16 of Article 18 to the Colorado Constitution and legalized under Colorado law (as opposed to federal law), the personal use, possession, and limited cultivation of recreational marijuana for adults twenty-one (21) years of age or older.

(4)

Despite the adoption of Amendments 20 and 64, marijuana remains a controlled substance under federal law. Marijuana has the potential for abuse that should be closely monitored and regulated. If not closely monitored and regulated, the presence of marijuana, even that legally permitted by Amendments 20 and 64, can cause an increase in illegal activities within the City, create nuisances, and affect the health, safety, order, comfort, convenience and general welfare of the residents of the City.

(5)

Pursuant to the provisions of Article XX, Section 6 of the Colorado Constitution, and as further authorized by state statutes, including, but not limited to C.R.S. Section 31-15-401, the City has broad authority to exercise its police powers to promote and protect the health, safety, and welfare of the community and its residents.

(6)

If marijuana facilities operating pursuant to Amendments 20 and 64, and state law were allowed to be established and to operate without appropriate local regulation of their location, marijuana sales might be established in areas that would be inconsistent with surrounding uses, or otherwise be detrimental to the public health, safety and welfare.

(7)

On May 11, 2010, the Colorado General Assembly passed House Bill 10-1284, which authorizes and recognizes the authority of cities to enact ordinances regulating, licensing and zoning medical marijuana facilities and medical marijuana.

(8)

The City of Pueblo has determined that, between April 30, 2008 and May 31, 2010, the incidence of thefts, burglaries and robberies in nonresidential zone districts, along Interstate 25 and Highway 50A within the City limits has been at least two (2) times greater than the same offenses over the same period in nonresidential zone districts within the City. Buffering medical marijuana centers from these corridors is necessary to protect the health, safety and welfare of the residents of the City of Pueblo and the customers, employees, managers and owners of the medical marijuana facilities.

(9)

Nothing in this Chapter allows a person to:

a.

Engage in conduct that endangers others or causes a public nuisance;

b.

Possess, cultivate, grow, use or distribute marijuana for any purpose other than that allowed by Amendments 20 and 64, the implementing state statutes and administrative regulations, and Pueblo City Charter, ordinances, rules and regulations.

c.

Possess, cultivate, grow, use or distribute marijuana that is otherwise illegal under applicable law; or

d.

Engage in any activity related to the possession, cultivation, growing, use or distribution of marijuana that is otherwise not permitted under the laws of the City or the State of Colorado.

(10)

This Chapter is necessary and proper to provide for the safety, preserve the health, promote the prosperity and improve the order, comfort and convenience of the City and the inhabitants thereof.

(11)

No person, business, activity or use that distributed or involved the distribution of marijuana within the City prior to the enactment of this Chapter shall be deemed to have been legally established under this Code, and no such person, business, activity or use shall be entitled to claim legal nonconforming status under any provision of this Code or applicable law.

(b)

Definitions. As used in this Chapter, the following words shall have the following meanings, unless the context clearly requires otherwise:

(1)

Amendment 64 means the voter-initiated amendment to the Colorado Constitution adopted November 6, 2012. Amendment 64 added Section 16 to Article 18 of the Colorado Constitution.

(2)

Cultivation means the planting, growing or harvesting of marijuana, including but not limited to hydroponic cultivation and cloning.

(3)

Enclosed space means a permanent or semi-permanent area, surrounded on all sides, including the roof. The temporary opening of windows or doors does not convert the area into an unenclosed space.

(4)

Locked space means secured at all points of ingress and egress with a locking mechanism, such as a key or combination lock, designed to limit access only to those lawfully permitted.

(5)

Marijuana home cultivation means the use of a residential property, in which a person resides as their primary residence, for the cultivation and growing of medical and/or retail marijuana for that person's personal use only. The use of a Marijuana Home Cultivation shall require compliance with Section 17-15-20 of this Title.

(6)

Medical marijuana facility means a medical marijuana center, optional cultivation premises or medical marijuana infused product manufacturing.

(7)

Medical marijuana center means the use of any property or structure to distribute, transmit, give, dispense or otherwise provide marijuana in any manner to patients or primary caregivers in accordance with Amendment 20 and the implementing state statutes and administrative regulations.

(8)

Medical marijuana optional cultivation premises means the use of any property or structure for the cultivation and growing of medical marijuana.

(9)

Medical marijuana infused product manufacturing means a manufacturing or processing facility in which a product is infused with medical marijuana that is intended for use or consumption other than by smoking, including but not limited to edible products, ointments and tinctures.

(10)

Minor revision means a change in the approved limited use permit to allow changes, which are required by circumstances not foreseen when approval of the limited use permit was given, and have no adverse impact on adjoining or surrounding properties. A minor revision may be approved for only the following: (1) reduction of size of the premises; (2) increase in size of the premises of ten percent (10%) or less; (3) installation of signage; (4) other changes deemed to be minor in nature by the administrative official.

(c)

In addition to the definitions provided in Subsection (b) of this Section, the other defined terms in Amendments 20 and 64 are incorporated into this Chapter by reference, except where the ordinance provides a different definition or the context makes it clear that the statutory or constitutional definition does not apply.

(Ord. No. 8245 §5, 7-26-10; Ord. No. 8841 §3, 2-23-15; Ord. No. 9073 §3, 12-12-16)

Recognizing that there is a potential conflict between federal and state law with respect to the operation of medical and retail marijuana facilities, it is the purpose of this Chapter to:

(1)

Impose specific requirements and limitations for those individuals registering with the State of Colorado as a "patient" or "primary caregiver" as those terms are defined in Amendment 20 and the statutes and administrative regulations implementing Amendment 20.

(2)

Require that a marijuana facility be operated in a safe manner that does not endanger the public welfare.

(3)

Mitigate potential negative impacts that marijuana-related businesses might cause on surrounding properties and persons.

(4)

Regulate the conduct of persons owning, operating and using marijuana facilities in order to protect the public health, safety and welfare.

(5)

Establish a nondiscriminatory mechanism by which the City can control, through appropriate regulation, the location and operation of marijuana-related uses within the City.

(Ord. No. 8245 §5, 7-26-10; Ord. No. 9073 §4, 12-12-16)

(a)

All medical marijuana facilities shall be subject to the requirements and the requirements of Chapter 10 of Title XI, regardless if the use is permitted by right or by review.

(b)

All retail marijuana facilities shall be subject to the requirements of Chapter 11 of Title XI.

(c)

Each marijuana facility shall require separate permit and approval.

(d)

Medical marijuana centers, with optional cultivation premises, issued prior to the effective date of this ordinance (Dec. 12, 2016), shall be considered legal non-conforming uses of structures and premises in combination, and shall comply with Section 17-3-5 of this Title.

(Ord. No. 8245 §5, 7-26-10; Ord. No. 9073 §5, 12-12-16; Ord. No. 9482 §7, 6-10-19)

Editor's note— Ord. No. 8841, §4, adopted Feb. 23, 2015, repealed § 17-15-4 which pertained to definitions and derived from Ord. No. 8245, §5, adopted July 26, 2010.

The review and approval requirements set forth in this Section are in addition to, and not in lieu of, any other licensing and permitting requirements imposed by any other federal, state or local law.

(a)

Conditional use permit. Marijuana uses that are permitted upon issuance of a conditional use permit, according to Section 17-4-51, must apply for a conditional use permit, pay the nonrefundable application fee, and provide the information required by the Administrative Official, on forms provided by the City, prior to operation of the use. All marijuana conditional use permits shall expire one (1) year after issuance. An application for the renewal of an existing permit shall be made to the Planning and Community Development Department not less than forty-five (45) days prior to the date of expiration. Renewal of the conditional use permit requires an inspection for compliance with the initial approval. Failure to comply with all requirements of Section 17-4-51, Chapter 15 of this Title and the initial permit shall preclude renewal of the conditional use permit.

(b)

Permit transfer. The location transfer of a permit shall not be allowed unless the original permittee approves the permit transfer and the new applicant provides the required affidavits.

(Ord. No. 8245 §5, 7-26-10; Ord. No. 8369 §7, 7-11-11; Ord. No. 9073 §6, 12-12-16; Ord. No. 9482 §8, 6-10-19)

Editor's note— Ord. No. 9482 §9, adopted June 10, 2019, repealed § 17-15-6 which pertained to locations and derived from Ord. No. 8245 §5, adopted July 26, 2010; Ord. No. 8933 §19, adopted Nov. 23, 2015; and Ord. No. 9073 §7, adopted Dec. 12, 2016.

Editor's note— Ord. No. 9482 §10, adopted June 10, 2019, repealed § 17-15-7 which pertained to medical marijuana center performance standards and derived from Ord. No. 8245 §5, adopted July 26, 2010.

Editor's note— Ord. No. 9073 §8, adopted Dec. 12, 2016, repealed § 17-15-8, which pertained to medical marijuana optional cultivation premises performance standards and derived from Ord. No. 8245 §5, adopted July 26, 2010; Ord. No. 8841 §5, adopted Feb. 23, 2015.

Editor's note— Ord. No. 9073 §9, adopted Dec. 12, 2016, repealed § 17-15-9, which pertained to medical marijuana infused product manufacturing performance standards and derived from Ord. No. 8245 §5, adopted July 26, 2010.

(1)

The structure used for home cultivation shall comply with all applicable building codes, including but not limited to the health, building, electrical, plumbing, mechanical, sign, fire, and other codes, statutes, and ordinances.

(2)

All grow operations shall be conducted in a fully enclosed and locked space inside a detached one-family residence, attached accessory structure to a detached one-family residence, or a detached accessory structure subject to the following limitations:

(a)

The total area used to grow and process marijuana inside a detached one-family residence or accessory structure attached to a detached one-family residence shall not exceed one hundred (100) contiguous square feet and ten (10) feet in height. Only a medical marijuana caregiver may seek a variance pursuant to Pueblo Municipal Code Section 17-5-34 to exceed the one hundred (100) contiguous square feet limitation; however, in no event shall a caregiver be allowed to grow marijuana in an area exceeding twenty-five percent (25%) of the gross floor area of the residence or one hundred (100) square feet, whichever is greater.

(b)

The total area used to grow and process marijuana inside a detached accessory structure shall not exceed one hundred fifty (150) contiguous feet and twelve (12) feet in height. Only a medical marijuana caregiver may seek a variance pursuant to Pueblo Municipal Code Section 17-5-34 to exceed the one hundred fifty (150) contiguous square feet; however, in no event shall a caregiver be allowed to grow marijuana in a detached accessory structure larger than necessary to allow ten (10) square feet per doctor recommended marijuana plant, or one hundred fifty (150) square feet, whichever is greater.

(c)

All detached accessory structures must comply with all other applicable zoning codes.

(3)

Any space used for grow operations pursuant to this Article II must not be available to the public or accessible to anyone under the age of twenty-one (21) years unless such person possesses a medical marijuana registration card.

(4)

All home cultivations must have a ventilation system(s) that prevents recirculation of indoor air and requires all air to be vented directly to the outdoors through a carbon filtration system sufficient to prevent particulate and odors from escaping the home cultivation. All ventilation systems must meet all applicable building codes.

(5)

Outdoor grow operations and home cultivation in greenhouse are prohibited. It shall be unlawful and a Class one municipal offense to violate this subsection. In addition, violation of this subsection shall be considered a nuisance per se subject to abatement pursuant to Pueblo Municipal Code Section 7-1-1 et seq.

(6)

Conducting a home cultivation in, or on any property zoned for any use other than one-family residential is prohibited.

(7)

Home cultivation of marijuana is only permitted by adults over twenty-one (21) years of age, unless such person possesses a valid medical marijuana registration card, who reside at, and use the property on which the home cultivation is located as their primary residence; except that medical marijuana caregivers may cultivate for up to five (5) persons who do not reside at the property on which the home cultivation is located, so long as the property on which the home cultivation is located is the caregiver's primary residence and the caregiver has been designated by the person(s) that possess the valid medical marijuana registration card(s) to be their caregiver. In no event, shall a caregiver be allowed to cultivate for more than a total of five (5) patients without obtaining a valid medical marijuana license from the City pursuant to Pueblo Municipal Code Section 11-10-301 et seq.

(8)

Anyone cultivating medical marijuana must post a copy of the registered patient's state medical marijuana registration in a conspicuous place within three (3) feet of the home cultivation.

(9)

Sale, transfer, or other distribution of any portions of the plant, product, by-product, etc. associated with home cultivation in exchange for any form of consideration is prohibited; except that transfer of one (1) ounce or less of retail marijuana without remuneration to a person who is twenty-one (21) years of age or older shall not be unlawful.

(10)

Sale, transfer (with or without remuneration), gift, or other distribution of any portions of the plant, product, by-product, etc. associated with home cultivation to persons under twenty-one (21) years of age, unless such person possesses a valid medical marijuana registration card and the person distributing the marijuana is their designated caregiver, is prohibited and unlawful, and a Class one municipal offense.

(11)

It shall be unlawful and a Class two municipal offense to cultivate marijuana using carbon dioxide at any concentration above ambient air concentration for four thousand nine hundred (4,900) feet above sea level, or to use or store any other hazardous chemicals without first obtaining the approval of the Fire Department.

(12)

If the residential property used for personal cultivation is leased, the resident of the property must have written authorization, in the form approved by the Planning and Community Development Department, from the property owner allowing the property to be used to cultivate marijuana. Owner approval forms may be obtained from the Planning and Community Development Department.

(13)

Violation of any of any subsection(s) of this Article II shall be a Class two municipal offense unless specifically designated otherwise, and may be considered a nuisance per se subject to abatement pursuant to Pueblo Municipal Code Section 7-1-1 et seq.

(Ord. No. 8841 §6, 2-23-15; Ord. No. 9469 §13, 5-28-19)

(1)

Neither the growing nor processing of medical or retail marijuana plants as part of a home cultivation shall be perceptible from the exterior of the structure in which any such activities occur, by or through any of the following means, or as a result of the general occurrence of any of the following impacts or effects:

(a)

Common visual observation (e.g., through a window) by a person of normal vision;

(b)

Light pollution, glare, or brightness that reasonably could be expected to disturb the repose of another person of normal visual sensitivities;

(c)

The smell or odor of marijuana, or unusual smells or odors generated by or connected to such growing or processing and not generally found in a residential environment, as detectable by a person with a normal sense of smell;

(d)

Undue or unusually high volumes of vehicular or pedestrian traffic, including unusually heavy or frequent parking in front of or in the immediate vicinity of the residence or residential structure; or

(e)

Noise from exhaust fans, other equipment, or other sources associated with or connected to such growing or processing in excess of any applicable permissible noise level set forth in Pueblo Municipal Code Section 11-1-607.

(2)

Receipt by the City of three (3) or more sustained complaints within a ninety-day period that a property on which a home cultivation exists has violated this Article III shall be considered a nuisance per se.

(3)

Each continuance of a nuisance for twenty-four (24) hours shall be considered a separate and distinct violation of this Chapter.

(Ord. No. 8841 §7, 2-23-15; Ord. No. 9469 §14, 5-28-19)

Any violation of this Chapter designated herein as a nuisance per se is considered a condition detrimental to the health or safety of any of the inhabitants of the City, and may be summarily abated pursuant to Pueblo Municipal Code Section 7-1-1 et seq. without right of appeal. The City may recover any and all costs incurred as a result of the abatement pursuant to Pueblo Municipal Code Section 7-1-1 et seq.

(Ord. No. 8841 §7, 2-23-15; Ord. No. 9469 §15, 5-28-19)

(1)

With regard to all violations of this Chapter not designated as a nuisance per se, it shall be unlawful and a Class two municipal offense for the owner or the occupant of any property to permit, continue or suffer the existence of any nuisance on any property under his or her ownership or control for a period of ten (10) days after service by certified mail or posting on the property notice of the nuisance. Service shall be deemed received upon the date signed on the return receipt, upon receipt of the return receipt unsigned, undeliverable or unclaimed, or ten (10) days after notice has been posted on the property.

(2)

The notice shall contain the following information:

(a)

The street address and legal description of the property sufficient for identification of the property;

(b)

A statement of the nature of the nuisance (i.e. visual, smell, noise, etc.); and

(c)

A statement that the nuisance must be removed or corrected within ten (10) days after receipt of the notice and if the nuisance is not abated, or an appeal filed within that time, the property will be declared to be a public nuisance. Thereafter, the City may enter upon the property and abate the nuisance to include removal and disposal of any marijuana plants, equipment, materials or items determined to be the cause of the nuisance.

(Ord. No. 8841 §7, 2-23-15)

(1)

In all cases except those involving a nuisance per se, a property owner or responsible party may file a written appeal with the Mayor or the designee of the Mayor within ten (10) days after receipt of the notice.

(2)

The appeal notice shall set forth the reasons why the property does not constitute a public nuisance and any defenses the property owner or responsible party may have for failure to remove the nuisance pursuant to the notice. Untimely appeals will not be considered.

(3)

The Mayor or the designee of the Mayor shall hold an appeal hearing within ten (10) days of the filing of a notice of appeal by the property owner or responsible party. At the hearing, the property owner or responsible party shall be entitled to present evidence and argue that the property does not constitute a public nuisance and any defenses the property owner or responsible party may have for failure to remove the nuisance.

(4)

The determination of the Hearing Officer after the hearing shall be final and not appealable. If, after the hearing, regardless of the attendance of the owner or the responsible party or their respective agents, the Hearing Officer determines that the property is a public nuisance, the Hearing Officer shall give a written order to the owner or responsible party at the time of the hearing, or if the owner or responsible party does not appear, by mailing a copy of the written order by U.S. mail postage pre-paid to the address provided by the owner or responsible party in the notice of appeal, that, unless the nuisance is abated within seven (7) days of the date of the written order, the City shall enter upon the property and cause the abatement of the nuisance, which may include but not be limited to removal and disposal of marijuana, marijuana plants, equipment and materials.

(Ord. No. 8841 §7, 2-23-15; Ord. No. 9296 §1, 6-11-18)

Within fourteen (14) days of completion of the abatement by the City, the City shall provide an accounting to the owner and the responsible party of the costs of such abatement. If all or any portion of the cost of such abatement remains unpaid after thirty (30) days, the amount thereof shall be charged against the owner of the property that was the subject of the abatement effort and be considered an unpaid debt owed to the City. Upon recording in the office of the County Clerk and Recorder of a statement under oath of the Mayor showing the amount of the unpaid cost of such abatement and describing the property, the unpaid cost of such abatement plus interest at the rate of ten percent (10%) per annum from the date such costs were incurred, shall be and constitute a perpetual lien on the property having priority over all other liens and encumbrances except general ad valorem tax liens, and such lien shall remain in full force and effect until paid in full. Filing of such lien shall not be an exclusive remedy. The City may pursue any other remedies provided for in law or equity by the laws of the State of Colorado, City Charter or Municipal Code for collection of a debt owed to the City.

(Ord. No. 8841 §7, 2-23-15; Ord. No. 9296 §1, 6-11-18)