Proposed retail marijuana store in Keystone appeals denial |

Proposed retail marijuana store in Keystone appeals denial

The owner of proposed recreational marijuana shop Higher Function in Keystone is appealing the Summit County Planning Department's ruling denying a retail business license. The Board of County Commissioners will now hold a public hearing for review on Tuesday, April 26.
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The owner of a proposed retail marijuana outlet in Keystone submitted paperwork to the county to appeal a recent decision not to award the business a license.

Higher Function, owned by longtime Keystone resident Kelly McMurray, filed the necessary documents ahead of last week’s deadline in order to have the Board of County Commissioners hold a brand-new hearing on the requested license after one was denied on Friday, Feb. 26. County Commissioners Thomas Davidson, Karn Stiegelmeier and Dan Gibbs have remained quiet on the matter, so they could sit as a quasi-judicial panel on the matter if an appeal was made.

Now that that plea has been formally registered with the county, notice of the appeal will be mailed out to affected neighbors and posted at the proposed location of the retail store, in the Quicksilver Commercial Site at U.S. Highway 6 and Tennis Club Road, as well as posted on the county website on Friday, March 11. Legal notice of a hearing will follow on Friday, April 8, and the public hearing will held on Tuesday, April 26.

“I suspect a good number of people,” said county manager Gary Martinez. “With other, less controversial hearings, there’s been a decision right away, and they may do that in this case. It may also be worth taking time to consider it further.”

McMurray filed the appeal on the grounds that the Planning Department interpreted several state statutes incorrectly. She feels the decision is not in accordance with the rules established to regulate retail marijuana businesses and does not represent the will of the county’s citizens.

“Seventy percent of Summit County registered voters approved retail marijuana,” McMurray said in a written statement submitted to the Summit Daily, referencing the county-specific results from Amendment 64 that legalized recreational marijuana in 2012. “Having a legal product with no legal means to obtain it creates a black market.”

protracted process

Higher Function’s original petition for a retail license — the first of its kind to the county because Keystone is an unincorporated area — was tendered on Sept. 21, 2015. The county returned the application for the 500-square-foot space because the business did not first obtain a conditional retail license from the state, which McMurray argues is not consistent with current codes or practices of other municipalities. Once that step was finalized through Colorado’s Marijuana Enforcement Division the day before Christmas of last year, however, the application was resubmitted on Jan. 4.

Since September 2013, Summit County’s Planning Department has been the agency tasked with processing such applications. Planning manager Lindsay Hirsh led the efforts of the review and sent out public notice of the requested license to property owners in the affected area on Thursday, Feb. 11 to begin a 15-day comment period that then concluded on Friday, Feb. 26.

The Planning Department received 478 forms of correspondence in that time via email, letter, phone call and fax. Of that significant total, 326 were in opposition of a retail store in the location, while 148 favored the proposal and four were neutral.

“While there may be some people against this application,” McMurray wrote in the appeal, “I do not feel as you mentioned, we are wholly incompatible with the needs and desires of the adult inhabitants of the neighborhood. I disagree that my application is not in harmony with surrounding land uses, but several bars, grocery store, liquor store, gas station … are in harmony.”

Some of the most consistent complaints in those critical comments included, were the store to be licensed, that it would result in increased public consumption and traffic congestion in the area, that the business would not fit the character of a family-friendly resort community and that it would decrease the property values of nearby residences.

“Are Steamboat, Breckenridge and Crested Butte not family-friendly?” asked McMurray of locations that also offer retail marijuana shops. “Have skier visits or property values declined? Absolutely not!”

weed war

One letter submitted in support of the store came from Keystone resident and member of the Keystone Citizens League John Snook, who spoke on his own behalf.

“I’ve heard suggestions that a retail marijuana store will somehow diminish community tranquility,” he wrote in the statement. “How is this retail location going to change the community character by occupying a vacancy in an existing retail building that is already occupied by a liquor store? Ultimately, I do not believe it fair to legislate that one legal business (liquor) is acceptable, but another legal business (marijuana) is not.”

Hirsh wrote in his Letter of Decision that all zoning requirements had been met. For example, the proposed location must be at least 50 feet from a residence and no fewer than 1,000 feet from any public or private elementary, middle or high school, as well as college or university. At 21801 U.S. Highway 6, which is the retail site McMurray signed a lease for on Aug. 11, 2015, Higher Function meets these necessary zoning regulations.

The county’s retail marijuana resolution lists seven other components that are considered criteria for approval of an application, which Hirsh called licensing requirements. Those include such items as public opinion and the possibility of adverse effects on existing neighborhoods.

“The decision is based on a balance between both of those,” Hirsh previously told the Summit Daily. “The licensing lends itself to the denial.”

One point of contention, among several others, between Higher Function and the Planning Department is how far away notice must be sent. A section of the resolution cornering regulation of retail marijuana in the county states property owners within 300 feet of the proposed location have to be informed. That would include two developments, Cabins in the Pines and the Quicksilver Condos, but notice, for which the applicant is responsible for all costs, was also sent to the Lakeside Village Condominiums about a half-mile away.

Hirsh acknowledges mailing notices out to Keystone residents outside of the required 300-foot proximity required, but that the resolution also provides him the authority to do so. McMurray disagreed, and now the argument will go before the commissioners.

“I’ve rendered my decision, and we’ll see what the BOCC does on appeal,” said Hirsh.

McMurray has stated she would seek to partner with the community to meet mutual goals if she is licensed for Higher Function, which would be open seven days a week, 8 a.m. to 7 p.m. She has already volunteered not to sell edible marijuana, nor market, advertise or post signage for the business.

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