FRUITA CITY COUNCIL REGULAR MEETING MAY 17, … · Tipton. Mr. Whalen stated ... AND I SCREAM, YOU...

Fruita City Council Minutes 1 May 17, 2011

FRUITA CITY COUNCIL

REGULAR MEETING MAY 17, 2011

1. INVOCATION AND PLEDGE OF ALLEGIANCE

The invocation was given and the Pledge of Allegiance was recited. 2. CALL TO ORDER AND ROLL CALL

Mayor Henry called the regular meeting of the Fruita City Council to order at 7:00 p.m. Council members present were Bruce Bonar, Mel Mulder, Lori Buck, Terry Moss and Bob Fuller. Councilor Stacey Mascarenas was excused absent.

3. AGENDA – ADOPT/AMEND

• COUNCILOR BUCK MOVED TO ADOPT THE AGENDA AS PRESENTED. COUNCILOR FULLER SECONDED THE MOTION. THERE WERE 5 YES VOTES.

4. PROCLAMATIONS AND PRESENTATIONS

A. PROCLAMATION – MAY 15 – 21, 2011 AS “POLICE WEEK” IN THE CITY OF

FRUITA (TO BE ACCEPTED BY FRUITA POLICE CHIEF MARK ANGELO)

Fruita Police Chief Mark Angelo introduced members of Mesa County law enforcement that were in attendance: Sergeant Bob Dalley from the Palisade Police Department, Undersheriff Rebecca Spiess from the Mesa County Sheriff’s Office, Captain Ed Clark from the Colorado State Patrol, and Commander Tim Grimsby from the Grand Junction Police Department.

Henry read the Proclamation that recognizes May 15 – 21, 2011 as “Police Week 2011” in the City of Fruita and to honor the service and sacrifice of those law enforcement officers killed in the line of duty while protecting their communities and safeguarding American democracy. Each of the law enforcement members present at the meeting received a copy of the Proclamation and was thanked by the City Council members. On behalf of the City of Fruita and the Fruita Police Department, Chief Mark Angelo presented the Dalley Family with a special plaque: a rubbing of the name of Daniel C. Dalley from the National Law Enforcement Officers’ Memorial in Washington, D.C. Daniel C. Dalley was the Acting Police Chief of the Fruita Police Department who died on June 3, 2001 in a tragic motorcycle accident. Chief Angelo thanked the City Council for taking the time to recognize National Police Week. Mayor Henry stated that it was the City Council’s honor to do so.


B. PROCLAMATION – SATURDAY JUNE 4 – 11, 2011 AS “NATIONAL NEIGHBOR

WORKS WEEK” AND THE MONTH OF JUNE 2011 AS “NATIONAL HOME OWNERSHIP MONTH”

Councilor Bob Fuller read the Proclamation, which was accepted by Dan Whalen, Executive Director of Housing Resources of Western Colorado. Mr. Whalen stated that Housing Resources has built over 350 self-help homes in Mesa County since 1996. 67 of those homes were built in Fruita. The Proclamation urged all citizens to participate in park cleanup activities, open house tours, and a cookout planned by Housing Resources of Western Colorado at Riverbend Park in Palisade on June 4, 2011 at 9:30 a.m. The Mayor of Palisade and Patty Snidell from USDA Rural Development will speak at the event, and Senators Udall and Bennett have been invited, as well as Congressman Tipton. Mr. Whalen stated that there are about 33 self-help homes in one subdivision planned for Fruita in the future. He said that Housing Resources will hopefully be able to begin the projects in approximately six months. He said that things could change as time goes on, however.

5. PUBLIC PARTICIPATION

Mayor Henry asked if there was anyone in the audience who cared to address the Council on any items not appearing on the agenda. Hearing no comments from the public, Mayor Henry closed the Public Participation section of the agenda. 6. CONSENT AGENDA

A. MINUTES – A REQUEST FOR APPROVAL OF THE MINUTES FROM THE MAY

3, 2011 CITY COUNCIL MEETING

B. LIQUOR LICENSE RENEWAL – JACKALOPE LIQUORS – A REQUEST TO APPROVE THE RENEWAL OF A RETAIL LIQUOR STORE LICENSE - MALT, VINOUS, AND SPIRITUOUS FOR DEE AND BEE, INC. DBA JACKALOPE LIQUORS LOCATED AT 404 JURASSIC AVE., #B

C. SPECIAL EVENT LIQUOR PERMIT APPLICATION – A REQUEST TO

APPROVE THE APPLICATION FOR A SPECIAL EVENT LIQUOR PERMIT FOR THE COLORADO RIVERFRONT FOUNDATION TO SELL MALT, VINOUS AND SPIRITUOUS LIQUOR AT THE JAMES M. ROBB – COLORADO RIVER STATE PARK 2011 SUMMER CONCERTS SERIES TO BE HELD ON JULY 20, AUGUST 3, AND AUGUST 4, 2011 FROM 5:30 P.M. TO 10:30 P.M. WITH BEER TAPS BEING SHUT OFF AT 9:30 P.M. FOR ALL THREE DAYS


D. ORDINANCE 2011-10 – SECOND READING – A REQUEST TO APPROVE AN

ORDINANCE ACCEPTING A RIGHT-OF-WAY FOR GREENWAY DRIVE LOCATED EAST OF COULSON STREET AND SOUTH OF HIGHWAY 6 & 50 AND EXTENDING WEST OF THE LITTLE SALT WASH

E. RESOLUTION 2011-12 – A REQUEST TO APPROVE A RESOLUTION SETTING

A HEARING DATE TO DETERMINE THE ELIGIBILITY OF 8.59 ACRES OF PROPERTY LOCATED ON I ½ ROAD BETWEEN SOUTH MESA STREET AND SOUTH MAPLE STREET TO BE ANNEXED TO THE CITY OF FRUITA AND TO CONSIDER INITIATION OF ANNEXATION PROCEDURES (FITCH ANNEXATION)

F. 2011 ENTERTAINMENT GRANT PROGRAM – A REQUEST FOR APPROVEAL

OF THREE ENTERTAINMENT GRANT APPLICATIONS FROM THE FEEDLOT RESTAURANT & BAR, PABLO’S PIZZA, AND I SCREAM, YOU SCREAM ICE CREAM SHOP

Mayor Henry asked if anyone in the audience wanted any item from the Consent Agenda removed for further discussion. Hearing no comments, he referred to the City Council. Councilor Bonar requested that Consent Item F. (2011 Entertainment Grant Program) be removed from the Consent Agenda for further discussion. Mayor Henry noted that it would be moved to Item 7(D) under Public Hearings. Councilor Moss asked if Consent Agenda Item E. was an annexation for a subdivision. City Manager Clint Kinney confirmed that it was.

• COUNCILOR BUCK MOVED TO APPROVE THE CONSENT AGENDA AS AMENDED. COUNCILOR MOSS SECONDED THE MOTION. THERE WERE 5 YES VOTES.

Mayor Henry noted that a representative from the Colorado Riverfront Foundation was present in the audience and asked him to provide a few more details about the Summer Concert Series at the James M. Robb – Colorado River State Park (the special events liquor permit was approved on the consent agenda). Mr. Paul Nelson, former Chairman and current member of the Riverfront Foundation, stated that he thinks this will be the best concert series the foundation has ever had. Otis Taylor, nationally known blues artist, will be performing on July 20, 2011. On August 3rd, the March Fourth Marching Band will put on a great family show, and on August 4, the Los Lonely Boys will perform. Tickets (free) for the Summer Concert Series will be available the second Saturday in June at Over the Edge Sports or Gene Taylor’s Sporting Goods in Grand Junction. If anyone wants to donate a few hundred dollars to the Riverfront Foundation, they will receive tickets to all three concerts without having to stand in line.


7. PUBLIC HEARINGS

A. ORDINANCE 2011-07 - SECOND READING – A REQUEST TO APPROVE AN

ORDINANCE PROHIBITING MEDICAL MARIJUANA BUSINESSES IN THE CITY OF FRUITA

B. ORDINANCE 2011-08 – SECOND READING – A REQUEST TO APPROVE AN ORDINANCE AMENDING THE FRUITA LAND USE CODE, CONTAINED IN TITLE 17 OF THE FRUITA MUNICIPAL CODE, CONCERNING THE CITY’S ZONING REGULATIONS GOVERNING THE CULTIVATION OF MEDICAL MARIJUANA BY PATIENTS AND CAREGIVERS IN RESIDENTIAL AND NON-RESIDENTIAL ZONE DISTRICTS AND CONCERNING THE REGULATION OF MEDICAL MARIJUANA BUSINESSES

C. ORDINANCE 2011-09 – SECOND READING – A REQUEST TO APPROVE AN

ORDINANCE OF THE CITY OF FRUITA, COLORADO, REPEALING AND REENACTING CHAPTER 5.15 OF THE FRUITA MUNICIPAL CODE CONCERNING THE LICENSING AND REGULATION OF MEDICAL MARIJUANA BUSINESSES

Community Development Dahna Raugh recalled how the Fruita City Council has discussed medical marijuana at several public meetings. She explained that there were three Ordinances on the current agenda concerning the matter; the first one being a proposed ban on medical marijuana business. Mrs. Raugh stated that the ban is not necessary at this time because staff recognizes that the City Council intends to take the issue to a vote of the people at the April 2012 Municipal Election. Additionally, the State of Colorado has continued their moratorium on medical marijuana businesses until July 1, 2012. Mrs. Raugh continued that there were two other Ordinances on the agenda concerning medical marijuana for the Council’s consideration. The first one (Ordinance 2011-08) deals with changes to the Land Use Code and mainly regulates patients and caregivers with some limited regulations on medical marijuana businesses. The other Ordinance (Ordinance 2011-09) is a change to Title 5 of the Fruita Municipal Code regarding business licenses and specifically, business licenses for medical marijuana. Mrs. Raugh stated that although there is a state-wide moratorium for new medical marijuana businesses and even though the Council is considering a ban, staff strongly recommends that both Ordinances 2011-08 and 2011-09 be adopted in one form or another just in case the City permits medical marijuana businesses in the future; either through an action by the City Council or if the voters decide to allow medical marijuana businesses. Mrs. Raugh stated that the activities of patients and caregivers regarding medical marijuana would not be affected by a moratorium or ban because state law does allow patients to have access to medical marijuana and also allows caregivers to provide that medical marijuana to


their patients; although there are some very limited parameters in the Ordinances before the Council. These Ordinances follow state law as closely as possible, but staff and the Council have discussed the changes that are necessary so that the City’s regulations work for the City of Fruita. City Attorney Ed Sands updated the City Council on the new legislation of House Bill 1043. It has passed the General Assembly, but has not yet been signed by Governor Hickenlooper, although it is expected that he will sign it. The bill does a few things of note; the existing law that cultivation operations were to remain private and confidential was repealed, and it also sets up two new classifications of licenses. The law now provides for a “Primary Caregiver Cultivation” license. Mr. Sands stated that generally, the City does not have the authority to license primary caregivers who cultivate medical marijuana for up to five patients. The new license was created in the event a primary caregiver receives a waiver from the state to serve more than five patients or who grows more than 30 plants at a time. These caregivers will have to get a state license and Mr. Sands recommended that the City of Fruita would also want to license and regulate them to commercial or industrial areas. Mr. Sands continued that the bill also sets up what’s called an “Infused Products Manufacturing Facility” license. The state is now saying that a number of different infused products manufacturers can band together, rent one facility and grow everything in that one facility. Mr. Sands recalled that the City Council had said previously that they wanted to ban regular infused products manufacturers in the City, so he was assuming the Council wouldn’t want to allow one of these big manufacturing facilities licenses either. He explained that the Ordinance does not currently address that, but he recommended that there be an amendment to cover that new classification of license. Mr. Sands reiterated Mrs. Raugh’s statement that the state has imposed another moratorium on new medical marijuana licenses until July 1, 2012. He added that if somebody has an existing license (which no one does in Fruita), they can get renewals through the state. Mr. Sands commented that practically speaking, he didn’t see a reason for banning medical marijuana businesses when there is already a moratorium in place until July 1, 2012. The new House Bill 1043 also now addresses clones (baby plants); a dispensary can now sell up to six immature plants in addition to the six regular plants to a patient. A clone is defined as a non-flowering medical marijuana plant that is no taller than 8 inches, no wider than 8 inches, is produced from a cutting, clipping or seedling, and is in a growing container no larger than 2 inches wide, 2 inches tall, and is sealed on the sides and bottom. Mr. Sands stated that the House Bill also limits what law enforcement officers can learn regarding the location of primary caregivers. It is now on a “need-to-know” basis. He said that there is nothing the City of Fruita can do about it and it makes Police Chief Mark Angelo’s job a little tougher.


Mr. Sands noted that these were the major provisions of the new bill except that infused products manufacturers can grow no more than 500 plants, but that it didn’t really matter to Fruita because the Council wasn’t going to allow infused products manufacturers anyway. He stated that mainly, the bill does not allow grow operations to stay a secret and that new licenses are postponed for another year.

Mayor Henry pointed out that the Council made the recommendation of banning medical marijuana businesses before they knew what the outcome of House Bill 1043 would be. He commented that because of the state’s ban, it would be somewhat redundant to adopt Ordinance 2011-07. Mayor Henry asked if there was any indication that Governor Hickenlooper would not sign House Bill 1043 and City Attorney Ed Sands responded that hasn’t heard any implications that he would not sign it. Mayor Henry opened the public hearing on the first Ordinance, Ordinance 2011-07, which prohibits the operation of medical marijuana businesses in the City of Fruita. Hearing no public comments, Mayor Henry closed the public hearing and referred to the City Council. Councilor Buck stated that she wanted to go with staff’s recommendation of not acting on the Ordinance but instead directing staff to prepare a Referred Measure to be considered at the April 2012 election. Councilors Mulder and Bonar agreed with Councilor Buck. Councilor Fuller stated that he didn’t agree; he thought it was appropriate for the City Council to make a statement that they do not want retail sales of an illegal narcotic to be allowed in the City of Fruita, period. He said that he did not agree with staff’s recommendation. Councilor Moss asked for confirmation that the Council would put the Referred Measure on the ballot for the April for the voters to decide. Mayor Henry said he believed that was the intent of the Council. Councilor Buck agreed with Mayor Henry that it was. Mr. Sands recommended that the City get the information out to the press regarding the moratorium because the Council would not want to have to pay for a special election due to someone filing a petition immediately. Councilor Moss asked when the ban would go into effect if approved by the voters. City Manager Clint Kinney responded that it would go into effect 30 days after the election. Councilor Moss asked if the Council would re-address the issue immediately in the event that Governor Hickenlooper doesn’t sign House Bill 1043. Mr. Sands advised that the Council has Emergency Ordinance provisions in the City Charter and they could enact it very quickly in one reading. Mayor Henry noted that the Governor has ten days to sign the bill. Councilor Moss commented that he has heard that there is a big push to legalize marijuana in Colorado.


Mr. Sands stated that the law says that existing facilities can be banned by municipalities without having to pay some sort of damages. There were at least three different District Court cases on the Front Range that have upheld the ban of existing facilities. Mr. Sands said he was sure the cases would go to the Court of Appeals or Supreme Court eventually, but so far, it is looking pretty good for municipalities who are being sued. Mayor Henry asked if the Colorado Legislature responded to the US Attorney’s cautions. Mr. Sands said he has read all of those materials and they were a little scary because there were cautions about facilities having 500 plants and funding mechanisms being put into place for medical marijuana businesses because they are having trouble utilizing bank facilities. He added that if the letters from the Colorado US Attorney and other US Attorneys from around the country were read literally, in theory, they could arrest everybody in the Legislature, the Legislative staff, the Governor, everybody in the Health Department, the State Medical Marijuana Authority, attorneys who write the Ordinances for medical marijuana, etc. Mr. Sands said that the Colorado Legislature kind of ignored it because it was very impractical. Mr. Sands commented that the federal government is trying to walk a very fine line; they don’t want to go after the patients who need it medically, but they don’t want it to get too big. Councilor Moss asked how the Legislature was going to address the banking issue. Mr. Sands responded that there is nothing in the legislation; they did away with those provisions. He continued that it was his understanding that many medical marijuana businesses are using credit unions because they are state-chartered, not federally-chartered. Mayor Henry asked if the Council wanted to continue with any further discussion.

• COUNCILOR BONAR MOVED THAT THE COUNCIL NOT ACT ON ORDINANCE 2011-07 AT THIS TIME AND THAT THE COUNCIL DIRECT CITY STAFF TO PREPARE A REFERRED MEASURE PROHIBITING THE OPERATION OF MEDICAL MARIJUANA BUSINESSES TO BE CONSIDERED AT THE APRIL 2012 ELECTION. COUNCILOR MULDER SECONDED THE MOTION. THERE WERE 4 YES VOTES AND ONE NO VOTE. THE MOTION PASSED 4 TO 1.

Councilor Fuller stated that he voted no as per his previously stated comments.

B. ORDINANCE 2011-08 – SECOND READING – A REQUEST TO APPROVE AN ORDINANCE AMENDING THE FRUITA LAND USE CODE, CONTAINED IN TITLE 17 OF THE FRUITA MUNICIPAL CODE, CONCERNING THE CITY’S ZONING REGULATIONS GOVERNING THE CULTIVATION OF MEDICAL MARIJUANA BY PATIENTS AND CAREGIVERS IN RESIDENTIAL AND NON-RESIDENTIAL ZONE DISTRICTS AND CONCERNING THE REGULATION OF MEDICAL MARIJUANA BUSINESSES

City Manager Clint Kinney gave a quick summary of Ordinance 2011-08, which would allow the City of Fruita to have the strictest regulations possible governing caregivers. Basically, the


regulations would allow for a maximum of twelve plants in residential areas. Mr. Sands corrected Mr. Kinney by pointing out that Palisade is limiting plants to six plants instead of twelve. He conceded that Fruita’s regulations; however, would be one of the strictest in the valley. Mr. Sands continued that the Ordinance was very critical because no matter what the voters do with the medical marijuana businesses, this is totally separate and constitutional because it deals with caregivers. He said the one good thing in the new legislation that he didn’t mention earlier is that for the first time, municipalities have the authority to regulate the location of caregivers. Mr. Sands said that what the Ordinance does is say that caregivers can cultivate in a residential area if no more than twelve plants are grown and there has to be a safety inspection to make sure the building is vented properly, electrical facilities are adequate, and that the operation prohibits any sort of glaring disturbance to neighbors. The Ordinance also regulates the square footage of a cultivation operation and requires it to be sealed off from children and other people in the household. If a caregiver can’t meet those requirements, they would have to locate in a commercial or industrial area. Councilor Buck asked why the Ordinance addresses medical marijuana businesses if the Ordinance is about regulating caregivers. Mr. Sands responded that the Ordinance amends the Land Use Code and the first two parts of it are not concerning businesses, but caregivers or patients who are growing for themselves. He continued that the third part limits where businesses can be through zoning. Councilor Buck stated that she didn’t see the reason to have Section 4, subsection 3 titled “Medical Marijuana Businesses” in the Ordinance. Mr. Kinney responded that Ordinances 2011-08 and 2011-09 are essentially safety nets just in case something happens that the City can’t predict, such as something happening to the Governor and he doesn’t end up signing the legislation or future Councils overturn elections of the public. He said staff felt it was safer to have regulations in place just in case. Mr. Sands commented that nobody knows at this point what the Court of Appeals or the Supreme Court is ultimately going to do. He continued that the State Legislature General Assembly has taken the position that dispensaries or retail centers are not protected by the State Constitution. This is being challenged however, by the marijuana industry. Mr. Sands said that in theory, at any point, a court could just toss out all the legislation that says that municipalities have the right to regulate or ban, so his advice is to make sure the City has a fall-back that tells businesses where they can locate through the Land Use Code. Councilor Buck asked if the Ordinances couldn’t just be put “on the shelf” and ready for implementation the minute that centers are legal again. She said she hated the idea that the City was putting the businesses in the Ordinance “just in case” because to her, that is sending a message.


Mr. Kinney responded that the logic was that the current Council has discussed the issue for over a year now and there are a lot of intricacies involved. He said it would take a long time to get new members of a Council up to speed and staff’s concern would be that if the Ordinances were “put on the shelf” and not adopted, staff wouldn’t know how long the next Council could adopt them. He said there really is no harm in having the regulations on the books because all they do is make things stricter for any applicant than would be otherwise. Councilor Buck responded that theoretically, the Council wouldn’t change it because after the April vote, it shouldn’t be an issue. Councilor Moss asked if the Council really needed to vote on the Ordinances now or if they could wait until there was a full Council (Councilor Mascarenas was absent) and have more discussion on it. Councilor Buck stated that caregivers are so important because they are legal and still able to operate. Mr. Sands said that by not taking a position on the businesses, it still doesn’t affect the cultivation of caregivers and patients. He strongly suggested that the Council get the regulations on the books as soon as possible to have some sort of control and regulation because right now, a person can move into a residential neighborhood where a neighbor is growing 30, 60, or more plants in the basement or garage and this could potentially affect his or her health and safety (the new person moving in). Councilor Fuller stated that he still didn’t get an answer to why Section 4, subsection 3 (about medical marijuana businesses) is in Ordinance 2011-08 when Ordinance 2011-09 deals with business licensing. Mr. Kinney answered that one addresses Title 17 (Land Use Code) of the Fruita Municipal Code and the other addresses Title 5 (Business Licenses and Regulations) of the Fruita Municipal Code. Councilor Moss asked what the state says about the allowed number of plants. Mr. Sands responded that a caregiver can have five patients and grow six plants per patient, so that is automatically 30, but there are exceptions now in the new legislation that if a caregiver is in a rural location where there are no retail centers, then the state can authorize caregivers to grow more than 30 plants. This could result in even larger facilities. Mr. Sands continued that if there are two caregivers living together, the number of allowed plants doubles. If four caregivers live together in a house, then up to 120 plants would be allowed. Mr. Sands made the statement that under state law, there are essentially no limits and that’s why he thinks it’s very important at a local level to put limits at least in the residential areas. He said that the City would not be negating state law, but if a caregiver wanted more than the City’s allowed number of plants (twelve), they would have to move to a commercial or industrial area and rent warehouse space.


Mayor Henry asked if the section referring to Medical Marijuana Businesses could be removed from the Ordinance that amends the Land Use Code and have it added to the Ordinance that repeals and reenacts the section of the Code that deals with business licensing and regulations. Mr. Sands responded that it could be done. Councilor Fuller said that it seemed to him that the Council might want to consider an Ordinance which would say that only one or two caregivers would be allowed on a residential block. He said the Ordinance amending the Land Use Code did not address the location of caregivers at all. Mr. Sands offered Councilor Fuller the exact wording of the State Legislation which reads, “the location of a cultivation operation (meaning a caregiver) shall comply will all applicable local laws, rules or regulations.” He said that Councilor Fuller’s suggestion could be done, although he doesn’t know of any other municipalities that have done it. Councilor Bonar said he thought he understood the logic of having Ordinance 2011-09 deal with the business licensing section of the municipal code, and he could also understand the rationale for the first part of Ordinance 2011-08 that deals with the caregivers, but he also had questions about Section 4, subsection 3 of Ordinance 2011-08. He asked how the zoning requirements for medical marijuana businesses in that section differ from what the City currently has in the Land Use Code. Councilor Bonar stated that the Council covered it pretty specifically when the original Ordinance amending the Land Use Code was adopted. Mr. Sands responded that the differences were the addition of distance requirements for preschools and places of worship, which are not in the existing Code. Councilor Bonar asked if a buffer distance from a place of worship is included in the state law. Mr. Sands answered that it is not. He said how the City measures the distance is not addressed at all in the existing Code, but the new Ordinance includes more clarity as to how the 1,000 feet will be measured. Councilor Moss asked if the state law includes any buffering requirements. Mr. Sands responded that state law provides for 1,000 feet from childcare centers, drug treatment centers, and schools (including colleges and private schools). The state gives a very specific means of measuring the 1,000 feet, which the Community Development Director (Dahna Raugh) felt was rather impractical from a planner’s perspective of administering it because it is based on pedestrian access as opposed to “how the crow flies.” Mrs. Raugh felt there could be lots of arguments for challenges using the state method of measuring. Mr. Sands continued that the state law goes on to say that municipalities can lower that 1,000 distance requirement, or abolish it entirely; that it is a matter of local control.


Mayor Henry suggested that Ordinance 2011-08 could be amended to eliminate Section 4, subsection 3 and then it could be added to Ordinance 2011-09. Mr. Sands replied that the Council could do a separate Ordinance for that Section and begin with the First Reading of it. He said that businesses are not as time-critical because Fruita does not have any medical marijuana businesses and the state is not going to allow any new ones unless the courts change that. Mr. Sands said he didn’t believe any appellate court would be making any decisions within the next year. Mayor Henry asked if there were any comments from the public. Hearing none, he closed the public hearing. Councilor Mulder said he wanted to follow up on what Councilor Bonar indicated. He said he would ask that Section 4, subsection 3 (c) (iii) regarding distance requirements for any religious institution or place of worship be removed from the 250 foot buffer strip requirement. Councilor Bonar said that the only observation that he would have on the removal of Section 4, subsection 3 and putting it on Ordinance 2011-09 is that while it doesn’t actually refer to zoning (except in the header where it talks about the zones); the rest of it is all basically about location. He said it is basically a Land Use Code issue, whereas Ordinance 2011-09 deals with business licensing. Councilor Bonar said he could see the logic of leaving it in Ordinance 2011-08, which is dealing with where people can do things, not how they can be done. Councilor Bonar concluded that he didn’t think it really makes a whole lot of difference whether Section 4, subsection 3 is placed in either Ordinance, but he could see the wisdom of leaving it in the Ordinance that deals with the Land Use Code because it involves location. Mayor Henry pointed out that businesses are not protected by the State Constitution, whereas caregivers are. Councilor Bonar said he could accept that argument. Councilor Buck stated that she was prepared to flat-out ban medical marijuana businesses, but since the moratorium had just come into effect, she wasn’t prepared to deal with any type of business Ordinances or issues just because she doesn’t want to condone it. Mayor Henry asked about the caregivers and Councilor Buck conceded they are something the Council has to deal with because they aren’t going away. Mr. Sands noted that if the Council was going to take Section 4, subsection 3 out of Ordinance 2011-08, any motion needs to be careful to also change the title of the Ordinance because it does mention regulation of medical marijuana businesses. He said he believes one of the “Whereas” clauses also mentions them. Councilor Fuller asked that if Section 4, subsection 3 was removed from Ordinance 2011-08, does the Council have an issue with regard to those caregivers who want to set up a larger operation, or does that fall under the business licensing Ordinance (2011-09)? Mr. Sands stated that the Section would fully cover one of those large caregiver operations; they would have to move into a non-residential area.


Councilor Fuller asked if either of the Ordinances would lose any force by moving Section 4, subsection 3 from one to the other. Mr. Sands confirmed that they wouldn’t. Councilor Moss stated that he had been approached by seven pastors and ministers throughout the last week about the whole medical marijuana issue and Councilor Moss asked them to write letters, but they hadn’t sent any in yet. He said they were concerned about places such as the Boy Scouts, Girl Scouts, Cub Scouts and those activities that go on at church buildings throughout the community. Mayor Henry asked staff to modify the title of the Ordinance 2011-08 to reflect only Sections 1 and 2. Councilor Bonar suggested that concerning the title of Ordinance 2011-08, if the language “and

concerning the regulation of medical marijuana businesses” could be stricken, that would correct the title according to the Council’s wishes. Mr. Sands agreed that was correct. Councilor Bonar also stated that he read through all the “whereas” clauses and couldn’t find a specific one that needs to be modified. Mr. Kinney noted that staff was proposing extra regulations just in case, so he wasn’t sure what the Council was trying to achieve. Mr. Sands stated that his position was that the City should still keep the regulations on the books somewhere just in case a court says in a month from now that medical marijuana businesses are legal and municipalities don’t have a right to ban them. He said the City should at least have some zoning that says where the businesses can and can’t be. Councilor Fuller said that if the City Attorney thinks that the courts could do something like that in a month, then the Council should put the prohibition Ordinance in place right away. Mr. Kinney stated that he was very confident that the regulations need to be in place, but if the Council was more comfortable with having the regulations in place in addition to a ban on medical marijuana businesses, then he would recommend that the Council go back and reconsider the first Ordinance (Ordinance 2011-07). He stressed that it was critical to have the regulations in place just in case because staff can’t predict what is going to happen and if the Land Use regulations are not in place, the City would have no control. Mr. Kinney added that there would be no drawback to having the regulations on the books. City Attorney Ed Sands said he completely agreed with Mr. Kinney. He added that he was probably exaggerating when he was talking about a court making a decision in a month; but that in six months to a year, there could be a court decision that municipalities can’t ban medical marijuana businesses. He said he it wouldn’t matter then if the Ordinance to ban would be in place or not. Mr. Sands continued that there is so much in the law in regards to land use that says that cities get to regulate through land use, whether it’s adult businesses or any other sort of use that may be constitutionally protected. Mr. Sands said he felt most comfortable relying on the land use authority to at least give the City some regulations through zoning.


Mr. Kinney pointed out that if the Council were to pass both of the Ordinances, they get codified and placed into the Fruita Municipal Code, so if Section 4, subsection 3 were to be removed from 2011-08 and placed into 2011-09, it really wouldn’t matter under which Ordinance the Council adopted it because it would be part of the Code regardless of which Title it was adopted under. Mr. Sands added that it wasn’t just about Section 4, subsection 3; Section 2 has the table in the Land Use Code which refers to businesses and primary caregivers, so if the Council wanted to take anything related to businesses out of Ordinance 2011-08, staff would have to go back and adjust Section 2 so that the table is amended concerning primary caregivers only. He said this is why staff convinced him that it was most logical to put it all together in one Ordinance amending the Land Use Code. Mayor Henry stated that although he appreciated that, Fruita is a very conservative community and he thought that the Council was trying to recognize not only the constitutional rights, but the business aspect of it as well. Councilor Bonar stated that the City of Fruita already has a pretty comprehensive and restrictive set of zoning regulations in the Land Use Code for medical marijuana businesses. He continued that if the Council did not include Section 4, number 3 in Ordinance 2011-08, which deals with the medical marijuana business changes, it doesn’t change the fact that the City already has a significantly restrictive set of zoning regulations and sections 1, 2, and 3 of Ordinance 2011-08 make the changes necessary to accommodate the changes in the state law, such as the definition of “dispensaries” versus “centers.” Councilor Bonar continued that if the Council passed Ordinance 2011-08 with Sections 1, 2, 3, and 4, parts 1 and 2, and move Section 4, subsection 3 to Ordinance 2011-09, they have covered all the pieces that need to be addressed to protect the citizens and constitutional rights. Mr. Kinney said he understood that the Council wanted to be as conservative as possible, so staff and the City Attorney put as conservative as possible regulations together on top of a ban. He said if the Council chooses not to have regulations, then that’s a Council decision. Councilor Moss asked if the Ordinances could be postponed for a future meeting and more discussion could be held about it then. He said he didn’t think there was any rush because the state already has a moratorium in place. Mayor Henry asked what the consequences of delaying the Ordinance concerning caregivers would be. Mr. Kinney responded that they would not be regulated. Mr. Sands agreed and added and that if somebody establishes a large caregiver operation in a residential area, the Community Development Director nor the Chief of Police are going to be able to do anything about it. He continued that if the Council puts in the regulations after the establishment of said operation, they could claim grandfather rights in court. Mr. Sands said he believes that would be the danger.


Mayor Henry asked that if the City has people growing medical marijuana now, would they be grandfathered in regardless of what decision the Council made that evening. Mr. Kinney responded that there are not a number of regulations on caregivers, so they could get grandfathered. Councilor Buck said she understood staff’s point that the City does want restrictions, but her question was, if things do change and the state decides bans are not legal, would there be a period of time after that change to allow communities to react? Mr. Sands responded that the odds are, it would be effective the date that the court decision comes down. He said there is usually not a grace period for a local government to kind of “get its act together.” Mayor Henry asked Mr. Sands if he was aware of any such litigation occurring right now. Mr. Sands answered yes; there’s significant litigation at the District Court level in Westminster, another community south of Denver, and a third one in Eagle. Mr. Sands represents the Town of Eagle and stated that he had put in a claim with the insurance company CIRSA. He continued that CIRSA has written a rather impressive legal memo outlining all the possible claims, pending litigation, and legal arguments. Mr. Sands stated that the litigations will slowly move up the ladder to the Appellate Courts. He said most of the litigations have been filed as temporary injunctions and then they will want full trials and hundreds of thousands of dollars in damages because of loss profits, etc. Mr. Sands continued that the District Courts have pretty much gotten through the injunction stages and the courts have denied the temporary injunctions. The litigations are now moving into the trial stage where the District Courts will issue a full decision on whether a town should be permanently enjoined from enforcing a ban and whether damages should be awarded to a plaintiff medical marijuana center owner. He said the trials could take some time. Mayor Henry stated that he was trying to make the point that the Council has the time to address the business aspect of medical marijuana into June. Mr. Sands confirmed this was true. Mayor Henry asked if the decisions in the other District Courts would impact the District Court in Mesa County. Mr. Sands answered that no; none of those decisions are binding on Mesa County District Courts. They are only binding in the judicial district where they are issued. Only when it gets to a Court of Appeals level or Supreme Court level, would they be binding on all areas of the state. Mayor Henry asked Mr. Sands if he thought the cases would go all the way to the Supreme Court. Mr. Sands said it was most likely. The Court of Appeals has to take appeals, but after the Court of Appeals, it is discretionary with the Supreme Court; they can either take an appeal or not take an appeal. He said because the issue has such wide ramifications across the state, he would be very surprised if the Supreme Court didn’t agree to take the appeal.


Mayor Henry asked if postponing Ordinance 2011-09 until June would put the City at much risk. Mr. Sands said he believed that it wouldn’t, but stated that staff certainly thinks it needs to be addressed sometime fairly soon.

• COUNCILOR BONAR MOVED TO AMEND ORDINANCE 2011-08 IN THE FOLLOWING MANNER: 1) TO AMEND THE TITLE BY REMOVING THE WORDS “AND CONCERNING

THE REGULATIONS OF MEDICAL MARIJUANA BUSINESSES”

2) THAT SECTION 2 BE AMENDED TO REMOVE THE WORDS “MEDICAL

MARIJUANA BUSINESSES AND” FROM THE CENTER OF THAT DEFINITION

3) THAT SECTION 4, SUBSECTION X, SUBSECTION 3 BE STRICKEN FROM

THE ORDINANCE TITLED “MEDICAL MARIJUANA BUSINESSES.” COUNCILOR BONAR FURTHER MOVED THAT THE COUNCIL APPROVE THE AMENDED ORDINANCE. COUNCILOR FULLER SECONDED THE MOTION. THERE WERE 5 YES VOTES.

C. ORDINANCE 2011-09 – SECOND READING – A REQUEST TO APPROVE AN

ORDINANCE OF THE CITY OF FRUITA, COLORADO, REPEALING AND REENACTING CHAPTER 5.15 OF THE FRUITA MUNICIPAL CODE CONCERNING THE LICENSING AND REGULATION OF MEDICAL MARIJUANA BUSINESSES

Mr. Kinney stated that this Ordinance was a further regulation of medical marijuana businesses that was just discussed. Mayor Henry opened the public hearing on Ordinance 2011-09. Hearing no comments, he closed the public hearing and referred to the Council for discussion.

• COUNCILOR BONAR MOVED TO CONTINUE ORDINANCE 2011-09 UNTIL THE JUNE 21, 2011 CITY COUNCIL MEETING FOR FURTHER DISCUSSION. COUNCILOR MULDER SECONDED THE MOTION. THERE WERE 5 YES VOTES.

Mr. Sands asked if Council was directing staff to move the Section regarding medical marijuana businesses from Ordinance 2011-08 to Ordinance 2011-09. There was a consensus that this was the Council’s direction to staff.

D. 2011 ENTERTAINMENT GRANT PROGRAM – A REQUEST FOR APPROVAL OF THREE ENTERTAINMENT GRANT APPLICATIONS FROM THE FEEDLOT RESTAURANT & BAR, PABLO’S PIZZA, AND I SCREAM, YOU


SCREAM ICE CREAM SHOP (REMOVED FROM THE CONSENT AGENDA BY COUNCILOR BONAR)

Mr. Kinney stated that staff had received three applications that were before the Council and staff’s recommendation was that the entertainment grant funds be split between the three applicants. Councilor Moss stated that the Dinosaur Journey Museum would be having the new T-Rex exhibit coming and they were hoping they could have gotten in on some of the entertainment grant funds. He said the Council may have to consider allocating some additional entertainment grant funds if that request were to come through. Councilor Moss stated that museum staff was expecting a huge influx of people. Mayor Henry asked Councilor Bonar for his reason for pulling the item from the Consent Agenda. Councilor Bonar stated that his first question was the math. He said he didn’t understand why it was placed on the Consent Agenda because the three applicants had all asked for $1,000 each when the remaining budget for the grants was at $1,065. Mr. Kinney said staff decided to recommend that the Council split the remaining $1,065 between the three applicants that was left in the budget, but if Council had further direction, staff would be happy to take it. Councilor Bonar also questioned the fact that two of the applicants were funding the same event and in the past, he thought the idea was the City was funding individual events. Councilor Buck said she encourages businesses to join together if they can do something together as a bigger event. Councilor Bonar apologized for not seeing staff’s recommendation that the remaining entertainment funds be split between the three applicants. Mayor Henry opened the public hearing on the issue. Hearing none, he closed the public hearing and asked for a motion.

• COUNCILOR BUCK MOVED TO ALLOCATE THE REMAINING ENTERTAINMENT GRANT FUNDS TO BE SPLIT EQUALLY AMONG THE THREE REQUESTORS, WITH EACH RECEIVING A $355 AWARD. COUNCILOR MULDER SECONDED THE MOTION. THERE WERE 5 YES VOTES.

8. ADMINISTRATIVE AGENDA

A. CITY CLERK/FINANCE DIRECTOR MARGARET STEELMAN


1. APRIL 2011 FINANCIAL REPORTS – A REQUEST FOR APPROVAL OF THE

APRIL 2011 FINANCIAL REPORTS

City Clerk/Finance Director Margaret Steelman reviewed the April 2011 Financial Reports. Highlights included: City sales tax revenues for March sales in 2011 are down 1% for the month and up 0.25% year to date. The 2011 Budget includes a 1% decrease from the actual revenue. County sales tax revenues for March 2011 are up 6% for the month and up 7% for the year. This compares favorably to the budgeted decrease of 1% from 2010 actual revenues. Use tax on motor vehicles is down 4% for April 2011 and up 17% for the year. The 2011 Budget includes a 4.5% decrease over actual revenues. Use tax on building materials is down 72% for April 2011 and down 9% for the year. The 2011 Budget includes a 49% reduction over actual 2010 revenues. There were 3 new housing starts in April 2011 compared to 19 in April 2010 (for a year to date total of 25 for 2011 compared to 36 in 2010). Mrs. Steelman asked the Council if they had any questions on further details in the budget; otherwise, she said it was staff’s recommendation that the April 2011 Financial Reports be approved. Mayor Henry asked that when the Finance Director uses the terminology “expense” versus “investment” (in regards to investing in Capital Projects), if that was just her personal preference or if it was subject to general accounting principles. Mrs. Steelman answered that it is a general accounting principle; it is an investment, but it is an expense as well. Mayor Henry asked Mrs. Steelman if she had any overall concerns. Mrs. Steelman stated that she feels the revenues are tracking fairly well with the budget, but she couldn’t get really excited about seeing some of the increases because she didn’t know how the rest of the year was going to pan out. Councilor Fuller commented that in the real estate market, the first three months of the year were quite slow, but April, May and June seem to be quite active and prices are continuing to drop 30%. He said he thought there should be some positive reflections from that segment of the market. Mrs. Steelman pointed out that the City had 3 new housing starts in April 2011 compared to 19 last year, although there were more in March. Mayor Henry said he hoped some of the legislation now pending in Congress to require 20% - 25% down doesn’t pass.


Councilor Moss asked how fuel costs are affecting the City’s budget. Mrs. Steelman responded that staff did not estimate a $4.00 per gallon fuel cost, so she anticipated that could cause some issues. She said that next year, the City’s contract with Waste Management allows them to increase their fuel tax for providing their services. Councilor Moss asked if irrigation costs went up at all in 2011 and Mrs. Steelman answered that they stayed the same this year.

• COUNCILOR BUCK MOVED TO APPROVE THE APRIL 2011 FINANCIAL REPORTS AS PRESENTED. COUNCILOR MOSS SECONDED THE MOTION. THERE WERE 5 YES VOTES.

B. PARKS AND RECREATION DIRECTOR TURE NYCUM

1. FRUITA COMMUNITY CENTER OPERATION UPDATE (IN RESPONSE TO

RESOLUTION 2011-09 - A RESOLUTION CLARIFYING AND FORMALIZING DIRECTION TO THE CITY MANAGER REGARDING FRUITA COMMUNITY CENTER OPERATIONS)

Parks and Recreation Director Ture Nycum presented the Council with a PowerPoint presentation regarding the operations and construction update at the Fruita Community Center (FCC). The actual total project costs in May of 2011 were at approximately $12.4 million. Project income is slightly over $13 million. Mr. Nycum stated that the City is looking at potentially being under budget by about $600,000 on the project. The project was finished on schedule as well. Mr. Nycum reviewed the FCC’s operations budget. Highlights include: 1. Annual pass sales are at about 50% of projections for the entire year 2. Punch and 3-month passes are at about 60% of the budget for the year 3. Daily admission passes are at about 140% of the budget for the year Mr. Nycum reviewed expenses for the FCC. The operating expenses are at approximately 38% of the budget for the year.

With revenues and operating expenses, the FCC is operating at about 100% cost recovery. Mr. Nycum said he wanted to temper that with the fact that revenues are tracking really high right now but he does anticipate those to go down. Mr. Nycum went further into detail in regards to the different types of passes and revenues collected. The FCC has collected $183,000 year to date.


Mr. Nycum pointed out that staff budgeted $62,000 in 2011 for people paying for a daily admission pass, but so far, the FCC has brought in about $90,000 already for those types of passes. Councilor Fuller asked why Mr. Nycum’s presentation showed that there were no annual passes sold for adult couples that are non-residents of Fruita. Mr. Nycum responded that it is difficult for staff to split out residents and non-residents in their system, so he was putting everything in the resident column. He noted that the FCC does charge a little bit more for non-residents. Councilor Fuller asked if staff has the capability to track residents versus non-residents and Mr. Nycum said staff does has the capability, but it is very time consuming. Other aspects of Mr. Nycum’s presentation included that other operating revenues include fitness programs, pro-shop sales, facility rentals, child care, and miscellaneous. He said those are tracking pretty well. He pointed out that swim lessons, tots tumbling classes and a few other programs were not included in his report. Mr. Nycum estimated that the FCC likely brought in over $15,000 in swim lessons. 200 kids have already registered for swim lessons for the summer months. Mr. Nycum reviewed the FCC’s operating expenses in further detail. Expenses were budgeted at $967,890.00 and as of May 14, 2011, operating expenses totaled $363,947.65. Mayor Henry asked Mr. Nycum what the “entertainment” line item entailed in his report. Mr. Nycum responded that it was for senior programs such as when they hire a band for their dances and things like that. He added that there is also an entertainment line item in the General Fund for the Thursday Night Concert Series and the Mike the Headless Chicken Festival. Other details in Mr. Nycum’s report included the information that there were 58,991 paid visits so far since the Grand Opening of the facility. He stated that for the most part, the FCC is serving locals in the Fruita community, but that there are also quite a few people coming from outside the Fruita area as well. Mr. Nycum stated that the amount of visits to the Fruita Branch Library has doubled since their move from the Civic Center. They are probably averaging about 300 visits per day. Councilor Moss asked if there was any information from the library about the adjustment of their hours. Mr. Nycum said he had not talked to them specifically about that. Future Plans and Activities for the FCC include the opening of the outdoor pool on May 21 and 22, and then the facility will be closed until May 28th, when it will remain open until September 5, 2011. There will be a maintenance week September 6 – 11, 2011 to refinish wood floors, clean rafters and vents, repaint where needed, deck drains, and general deep cleaning. In addition, staff will be responding to any customer issues and requests that come up, considering potential changes to hours of operation, looking at facility rentals, and most importantly, focusing on the FCC’s programs. Staff will be evaluating all the existing programs


and talking about new programs. Mr. Nycum stated that the programs are the lifeblood of the FCC; it is what brings people into the facility and gets them interested in activities. Some of the new activities that will be evaluated include youth classes and programs such as summer day camp, after school programs, Night at the FCC, master swim classes, seasonal fitness, and senior classes/programs such as 55 Alive driving classes and Tax Aide programs. Mayor Henry remarked that 99% of the comments that he hears are extremely complimentary to the Parks and Recreation Director, facility, and staff. He also stated that the last time he visited the FCC, he was told that the swim aerobics classes are extremely successful and popular. Mayor Henry stated that the Lions Club from Grand Junction, the Colorado National Monument Association, and the Riverfront Commission and Foundation have all recently visited the FCC and they were very complimentary as well, although they all asked if they would be allowed to use the facility even though they don’t live in Fruita. He suggested that at some point, staff might want to expand their marketing to let people in Grand Junction and other areas know that you don’t have to live in Fruita to use the FCC. Councilor Buck asked if the FCC would be getting some patio furniture on the back patio. Mr. Nycum answered that there are still a few items that staff is looking for and he would be happy to discuss it with her at the Senior Task Force meeting. Mr. Nycum said that when he was ordering furniture, he was a little hesitant to put furniture out there because it would either need to be easily portable or it will need to be secured to the concrete. He said his initial thought was to see how it goes and if someone wants to use furniture outside, they can take out the tables and chairs that are in the rooms. Councilor Mulder said he very much enjoyed Mr. Nycum’s presentation. Councilor Moss asked how many people would be allowed in the outdoor pool at one time and how it would be regulated. Mr. Nycum responded that the capacity is 253 people for the outdoor pool, but the indoor pool has a capacity of 460, although with 460 people in the indoor pool, people would be standing shoulder-to-shoulder. He said that his staff uses a ratio of one life guard per 20 bathers in the pool, and that this was another one of those things where staff would just have to see how it goes. Councilor Moss asked if the hours for the outdoor pool would be the same as those for the indoor pool. Mr. Nycum said that information is available in the Parks and Recreation Department’s Activity Guide and he couldn’t really recall the hours, but he knew that there would be swim lessons in the outdoor pool in the mornings Monday through Thursday or Friday and then the pool will open at noon until both pools are closed in the evening. Councilor Moss asked what the temperature of the outdoor pool would be. Mr. Nycum responded that it will probably be at about 86 degrees. Councilor Moss noted that the Parks and Recreation Board unanimously recommended that the FCC not make any adjustments at this time. They also said that if the public asks for something, to give it to them because of the significant usage of the facility.


Mayor Henry commended Mr. Nycum for doing a great job. Councilor Moss stated that the Fruita Area Chamber of Commerce mentioned that they would like to use the FCC for their annual banquet and possibly Family Health West as well. He asked if those discussions were taking place. Mr. Nycum stated that he and his staff were very open to having those functions in the FCC’s meeting rooms. He said he would work with both the Chamber and Family Health West on the reservations. Mayor Henry noted that the FCC certainly is the pride of Fruita. COUNCIL REPORTS AND ACTIONS

COUNCILOR MOSS

Councilor Moss reported that the Fruita Area Chamber of Commerce met and LeAnne Ingwersen is pretty energetic and is already making a lot of great contacts. The Chamber’s legislative update will be combined with Grand Junction’s. Councilor Moss said that the Chamber wants to attend a City Council workshop meeting for 10-15 minutes to give and update and would be arranging it with the City Manager. Councilor Moss stated that he went to the bike park near Red Cliffs Subdivision and it was just amazing how many kids and all types of people are using it. He continued that the disc golf course seems to be coming along very well and added that he was anxious to see the single track trail get developed. Councilor Bonar stated that the trail would be built in the fall because the Colorado Plateau Mountain Bike Association (COPMOBA) currently decided to focus their efforts on the north desert. Councilor Moss also reported that the Business Expo would be held on June 2, 2011 at the Civic Center from 4:00 to 7:00 p.m. before the first Thursday Night Concert.

COUNCILOR BUCK Councilor Buck said she had nothing to report but that she wanted to ask that at the next workshop meeting, the Council take a formal stance on dogs being allowed at the Thursday Night Concerts. She said she needed to follow up with the people who asked her about it.

COUNCILOR MULDER Councilor Mulder said that he thought that the lower half of the disc golf course would be under water by the end of the May. He added that he could also foresee the water coming into the gravel pit behind Arno Arcuby’s property.


9. ADJOURN

With no further business before the Council, the meeting was adjourned at 9:37 p.m.

Respectively submitted,

Debra Woods Deputy City Clerk City of Fruita

FRUITA CITY COUNCIL REGULAR MEETING MAY 17, … · Tipton. Mr. Whalen stated ... AND I SCREAM, YOU...

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