In Colorado, It’s Still The Wild West For Home-Grown Marijuana

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Originally published on April 4, 2017 5:44 am

Neighborly disputes are nothing new. There’s the dog next door that poops on your lawn. The house that throws loud backyard parties. The guy down the block who always plows through the stop sign.

But in Colorado, the introduction of legal, home-grown marijuana has elevated tension among neighbors to a whole new level.

Because of gaps in the state constitutional amendments that legalized cultivation of the drug for recreational and medical purposes -- and in the ensuing rules that sought to regulate it further -- some rural pockets in Colorado are seeing large-scale cooperative marijuana grow operations sprout up with little oversight.

With sheriffs and local police reticent to step in because of a lack of clarity in the rules, neighbors of rogue grow sites say they’re growing unchecked. State lawmakers and local government officials are scrambling to close the loopholes and assuage the concerns of some residents who say the state’s marijuana boom is ruining their neighborhood.

“Out of sight, out of mind”

To get a good sense of this tension, head up to Rist Canyon, a series of quiet neighborhoods 45 minutes into the foothills west of Fort Collins.

It’s the type of place people move to to get away from the hustle of the Front Range. Modestly-sized homes and getaway cabins are strung along dirt and gravel roads, nearly all nestled among burned pine trees, relics of the 2012 High Park Fire, which claimed dozens of homes in the canyon and torched thousands of trees.

Since 2014, when Colorado’s legal, recreational marijuana sales began, Rist Canyon residents say they’ve seen the arrival of a handful of new neighbors. These newcomers buy a plot of land, and rather than build a house and move in, they put up greenhouses or start planting marijuana right in the ground.  

Colorado’s statewide limits on home cultivation of medical and non-medical marijuana are based on the number of plants per individual -- not per property. While some local jurisdictions have implemented limits, some haven’t.

That means growers can establish a cooperative grow operation, where multiple growers use the same land to pool resources and potentially grow hundreds of plants. To intervene, law enforcement would need to prove the marijuana is being diverted into the black market, and sheriffs say they don’t have the resources to stake out a marijuana grow to find out.

On one dusty patch of land in Rist Canyon’s Davis Ranch neighborhood, a cluster of large, homemade wooden rings, each capable of holding more than a dozen plants, are strewn out on the ground. There’s a metal machine shed and a camper van. Last summer, the land’s neighbor -- he’d only agree to being identified by his middle name, Anthony -- says more than a hundred marijuana plants were growing here.

“He has no power, he has no water. So to irrigate this marijuana they had to haul water on our roads and tear the s--- out of our roads,” Anthony says.

The land is bare now. Because the cannabis was grown outside, Anthony says it’s only operational between frosts in spring and summer months. And when it is up and running, he says it’s no different from any other large-scale marijuana grow operation, with cars and trucks coming at all hours.

That much unprotected marijuana out in the open, he says, could draw the wrong kind of people. The land’s owner declined to be interviewed for this story due to pending litigation. He’s filed a lawsuit against a neighbor to pass an electrical line through their property.

“This is set up here to be out of sight, out of mind,” Anthony says. “We don’t get sheriffs coming up here. We don’t have law enforcement to patrol our properties and make sure nothing shady is going on.”

Larimer County officials have received official complaints on at least four separate cooperative marijuana grows in Rist Canyon, some growing hundreds of plants. Elsewhere in the county, cooperative marijuana grows have been documented in Pinewood Springs, Berthoud and on the outskirts of Fort Collins and Loveland.

After airing their concerns to either law enforcement or the media, Rist Canyon residents say the neighboring marijuana growers have resorted to intimidation. They say it reached a fever pitch in the summer of 2016, with laser lights being shined in their windows, tires revving in driveways and shouting from drivers as they passed by.

“Marijuana is a big money business,” Anthony says. “I don’t care if people use it, but follow the rules.”

But the thing is, at least in Larimer County, these growers are following the rules. Or at least closely enough to avoid a crackdown by law enforcement.

Loopholes in the law

Larimer County officials are well aware of the activity and tension in Rist Canyon. An organized group of residents have brought their concerns in front of the county’s commissioners. You can also feel the frustration in a series of emails sent to commissioners about the grows.

What differentiates a cooperative cultivation from a commercial grow operation is its government oversight. Unlike a commercial grow site, cooperative grows aren’t often subject to zoning setbacks, moving them further from schools and drug addiction treatment centers. And they’ve become a big headache for local governments across Colorado.

“Because we don’t regulate them from a land use perspective there’s no kind of permitting required,” says Michael Whitley, a Larimer County land use planner who oversees code for marijuana grows.

“There’s no specific regulation that says you can’t do it that way -- that you can’t get multiple caregivers together to all cultivate on the same property.”

When marijuana was first legalized in Colorado, Whitley says lawmakers and local officials spent much of their time creating and crafting a regulatory scheme for commercial sales of retail marijuana, and paid little attention to Amendments 64 and 20’s generous allowances for home-grown plants: six plants per individual, 21 years of age and older, and up to 99 plants for each medical marijuana caregiver.

In Larimer County, where Rist Canyon is located, there’s no plant limits for a single property, meaning a grower can take care of hundreds of plants, along as each of them has an owner to claim them.

“So if [the grower] claims, ‘These six plants belong to me, and these six plants belong to to my friend Jim, and these six plants, et cetera,’ who’s to say they’re not?” Whitley says.

“Diversion is going to happen”

The inability and reticence of local law enforcement to get involved in the neighbor disputes in Rist Canyon have only fanned the flames.

After receiving resident complaints, and looking into ways to crack down on nuisance grow sites, Larimer County officials realized they’d have to change their own rules to address it. But like most bureaucratic rule-making processes, it’s not moving fast enough to assuage the concerns of residents.

“We never said we would do something about it. We said we would look into see what our options are,” wrote Larimer County commissioner Steve Johnson in a January 2017 email response to the residents’ concerns.

“We have met several times with the sheriff and it is a very difficult thing for him to enforce.”

Larimer County sheriff Justin Smith is hardly a friend of legal marijuana. He’s been a staunch critic of the marijuana legalization amendment voters passed in 2012, saying it flies in the face of federal law banning the drug. In 2015 he filed a lawsuit against the state, asking a federal judge to strike down the amendment that legalized retail sales and home growing of marijuana. Some called it a political stunt, while Smith insisted he was looking for clarity on which laws to enforce.

“It gets to be kind of difficult,” Smith says of keeping an eye on large-scale non-commercial marijuana grow sites. “We take it very seriously that we need to police and keep the community safe, but we also need to do it within the state constitution, the U.S. constitution and state laws.”

With hundreds of unchecked marijuana plants growing in Colorado’s rural pockets, Smith says it’s easy for black or gray markets to absorb it.

“We have a product grown in Colorado, easy to transport, desired in other states,” Smith says.

The home-grown product isn’t subject to the taxes commercially grown marijuana is, he adds, meaning growers could undercut the dispensaries. Or, he says, if you get the marijuana out of Colorado to a state where it’s still illegal, you might double or triple the going price.

“The laws of economics say diversion is going to happen,” Smith says.

Change has happened -- state rules now require medical marijuana caregivers to register with the state. But cooperative grows that are growing six plants per individual aren’t required to register.

Larimer County commissioners are considering changes to its land use code that would essentially legislate cooperative grows out of existence. They want to require home growers to cultivate their marijuana on the land where their primary residence is located, making it much tougher to pool plants on a single property. Their land use code tweaks could be finalized by the end of May.

New statewide plant limits

Neighbor disputes aren’t limited to Rist Canyon. Enough state lawmakers have heard gripes from constituents to make the plant limits a topic of debate at the Capitol.

Credit Bente Birkeland / KUNC
State representative Cole Wist, a Republican from Centennial, is a sponsor of the legislation to create new statewide plant limits.

Republican Rep. Cole Wist of Centennial says new limits would help law enforcement – and prevent diversion to the black market.

“Our liberal laws regarding plant count are being abused by folks that are seeking to ship marijuana outside the state,” Wist says.

House Bill 1220 -- now on its way to Gov. John Hickenlooper’s desk -- would limit all plants grown at a residence to 12, creating a per property plant limit for the entire state. Caregivers or people on the medical marijuana registry could grow double that.

The limits aren’t just about potential black market diversion. Lawmakers are also concerned about public health risks such as excessive power and electrical use that can pose a fire hazard, noxious smells, mold and water damage from unregulated grow sites.

“We had over 100 witnesses that came and testified on [the bill establishing new limits]. And I heard them loud and clear that they don’t want us to criminalize medical treatment and I completely agree with that,” Wist says.

Rep. Jonathan Singer, D-Longmont, initially opposed the bill.

“Most of our jurisdictions already have some sort of plant count limit,” Singer says. “So it’s a little confusing to me why we would want to actually draw more attention to this issue when our cities can work collaboratively with their communities to find the right plant count limit for their neighborhoods.”

Singer was always okay with limiting home grows for recreational users. But he had major concerns that new limits would prevent law-abiding medical marijuana patients from getting the medicine they need.

“If there’s a kid with a seizure disorder or cancer, they can’t be smoking it by law, which means that it has to be distilled into a liquid tincture form. That takes a lot of plants,” Singer says.

“There’s no other way to get this medicine and I don’t want to ignite a war on drugs and have kids be the collateral damage.”

But after the Senate doubled the medical limit, Singer says he’s comfortable that the bill would protect most patients.

In the end, the House and Senate both unanimously passed HB 1220. Hickenlooper has indicated that he will sign it.

“I believe that the largest amount of plants a caregiver is allowed to have anywhere in the country I think is 16, outside of Colorado. I think in most states it’s 12. We’re obviously many, many times that,” Hickenlooper says.

With new Attorney General Jeff Sessions’ stance on marijuana, the governor says it’s especially important to rein in.

“Certainly given the uncertainty we’re given in Washington, probably not a good time to make waves around this,” Hickenlooper says.

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