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Land Use: Do You Use?

How do you define the “use” for legal marijuana operations? Like the subject of our last real estate now on a blog, definitions run land use. That includes zoning.

Land-use laws are tools for urban planning, ideally fostering healthy and vibrant communities. Land-use laws are intended to encourage businesses to come, or go, from certain areas, as well as regulating how those businesses operate, for the health, safety, and welfare of the general public.

Regulating “use” is a type of zoning commonly referred to as “Euclidian Zoning”. For example, an area zoned for single family residential use would not permit a machine shop. This segregation is practical for the benefit of residential users.

There's a political aspect. Adult entertainment and liquor establishments are highly restricted uses. They often require special approvals and have to be located certain distances from other uses such as schools. General is widely permitted but you will not find it in the middle of a new subdivision.

So where does the emerging legal marijuana industry fit? What’s its use? In the original 1950’s zoning code of the City and County of Denver, the word “marijuana” did not exist. When an all-new Denver Zoning Code was adopted in June 2010, “marijuana” appeared 10 times. “Marijuana” appears approximately 50 times in the latest revision (November 2015).

What happened? Marijuana was 100% illegal. Zoning typically does not authorize illegal use (I say “typically” because under federal law this use is still illegal). Then legal marijuana was authorized in Colorado and the laws began to adapt. The now well established industry further evolved and the local governments had to act. In some areas the train had already left the station and legal marijuana businesses exist today as “legal non-conforming” uses in locations where the government, community, or both would rather they not.

At first even government officials were not even certain they wouldn’t be breaking the law to authorize a legal use of marijuana. Some are still unsure and many local governments banned the use altogether. As recently as 2014, the Colorado Supreme Court adopted a change to the rules governing attorney conduct to reconcile the state legality and ethical illegality, since it is against the rules of ethics to advise a client in violating the law.

A good understating of what local land use and zoning says or does not say about a marijuana operation is critical to successful operations.

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