Would-be Aspen marijuana grower’s plan up in smoke
City Council won’t allow wholesale medicinal marijuana plant
January 13, 2010
Aspen — The Aspen City Council on Monday denied an Aspen man's request to establish a medicinal marijuana manufacturing facility at Obermeyer Place in Aspen.
Kent Kleppinger appealed a land-use code interpretation made by Aspen Community Development Director Chris Bendon, which states that growing pot is an agricultural use and is not allowed in the Service Commercial Industrial zone.
Kleppinger appealed that interpretation to the council, which unanimously upheld Bendon's decision.
Kleppinger argued that manufacturing medicinal marijuana fits within the SCI zone because it was meant for light industrial uses without a retail element. His intention was to grow marijuana as a pharmaceutical product and sell it wholesale to local dispensaries.
He argued that growing marijuana for the purpose for providing a wide array of medicine to people with all types of ailments is not agricultural but rather is the manufacturing of pharmaceuticals.
But as an appeal to a code interpretation, Kleppinger had the burden to prove that the community development department abused its discretion, denied him due process or exceeded its jurisdiction in making its ruling.
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Mayor Mick Ireland said Kleppinger failed to prove that the council must interpret the land-use code differently than Bendon.
Ireland added that perhaps the council should change the land-use code in the future to allow such a use, but said it would be prudent to wait to see how the Colorado Legislature this session addresses the concerns raised in response to the growing medical marijuana industry.
"There may be a reason, or a regulatory scheme, or the craziness they come up with that allows us to change the code," Ireland said.
Kleppinger said the intent of the SCI zone was to allow uses that don't fit within the other commercial districts.
Indeed, several businesses in the district — which includes Obermeyer Place and the North Mill Street building — have been grandfathered in over the years.
Agricultural use is defined in the city's land-use code as "the use of land and buildings for the production of crops." Under "agricultural use," the words "crop, nursery and orchard" are used.
"All of these words are associated with flora that is grown or planted," Deputy Planning Director Jennifer Phelan wrote in a memo to the council. "The commercial production (or growing) of medical marijuana is crop production and … is not a permitted use in the SCI zone district."
Ireland said it's arguable that marijuana isn't a crop or an agricultural product but that is what it has been classified as for many years.