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Would-be medical marijuana grower hits zoning roadblock in the city of Aspen

The city of Aspen has told a man looking to start a commercial medical marijuana growing operation that he can’t open his business, citing a zoning roadblock.

The city’s Community Development Department has determined commercial pot production to be an agricultural use that does not conform with zoning regulations in the service/commercial/industrial zone district, where the business is proposed. The would-be entrepreneur, Kent Kleppinger of Aspen, disagrees, arguing that his operation would be a pharmaceutical manufacturing endeavor, and therefore light manufacturing, which is encouraged in the SCI. He is appealing the planning office’s ruling to City Council, which will hear his appeal at Monday’s meeting.

Kleppinger is hoping to grow up to 100 or more marijuana plants to supply the growing number of medical marijuana dispensaries with a reliable and locally produced supply of marijuana. Colorado allows those suffering from certain ailments from AIDS to chronic pain to legally obtain marijuana with a doctors’ recommendation.

“I think a lot of customers in town would like to know how (medical marijuana) is grown and where it’s grown,” said Kleppinger, who is already a caregiver for a handful of patients. A caregiver is a person designated by a medical marijuana patient as their official grower. A caregiver can grow up to six plants per patient.

Kleppinger was looking at leasing spaces in the SCI to house his operation. The zone is home to businesses such as a consignment sporting goods store, a laundromat and a dog grooming business — businesses that probably wouldn’t exist in the higher rent districts of downtown Aspen proper. The zone looks to provide a home to locally serving, primarily non-retail businesses, according to the land use code.

Kleppinger believes his business to be the perfect fit, as indoor hydroponic pot growing does have a light industrial feel to it, with all of its high-powered lights, water pumps and fans. Moreover, medical marijuana is a pharmaceutical, and its production needs to be treated as such, Kleppinger said. Medical marijuana needs the proper environment and controls that go into drug making, and its production shouldn’t be seen simply as a farming, he said.

But the city’s Community Development Department saw Kleppinger’s proposed business as an agricultural use, which the city’s land use code does not allow in the SCI.

“It is staff’s interpretation that the commercial growing of any agricultural product, including medical marijuana, is an agricultural use,” according to a memo from the Community Development Department. “Whether hydroponically grown tomatoes or medical marijuana, both are a form of crop production.”

Kleppinger has appealed Community Development’s ruling to City Council, which at Monday’s meeting will decide whether the department abused its discretion, violated Kleppinger’s due process or exceeded its jurisdiction in making its ruling. The nature of the appeal does not allow City Council to reverse the planning department’s decision simply because council members feel city staff was incorrect.

Agricultural uses are allowed in the city of Aspen in areas zoned “conservation” and “rural residential.” Agricultural uses are allowed with Planning and Zoning Commission approval in moderate and low density residential neighborhoods.

And in case you were wondering, the city has determined that medical marijuana dispensaries are retail/pharmacy uses, which are allowed in most of Aspen’s commercial districts, but not the SCI.

Deciding what can and can’t go in the SCI has always been tricky, as the lower rent nature of the commercial space there has always made it attractive to people looking to start up new businesses.

Two years ago, the Aspen Brewing Company, which is in the SCI, found itself in a similar predicament with the city’s planning office. City planners felt that the brewery’s taproom, where patrons are served beer made on site, was essentially a bar, and therefore not allowed in the SCI. Council eventually decided that the brewery could have a taproom, so long as it kept limited hours and did not serve customers more than three beers.

Deputy Planning Director Jennifer Phelan said the land use code doesn’t anticipate every new business that will crop up, but that the planning office considers these new proposals on a case-by-case basis. The planning office can only go by existing rules to try to determine what should be allowed in certain zone districts, Phelan said.

“New uses need to meet the intent of zone districts,” she said, reiterating that the planning office feels the commercial medical marijuana operation is agricultural and therefore not allowed in the SCI. She also said the fact that Kleppinger would be in the marijuana business had nothing to do with the department’s ruling.

Kleppinger said he does not have the means to buy a ranch in the upper valley to house his business. He is hoping that City Council will see his proposed business as a good fit for the SCI and find a way to work something out.

“If it’s going to be allowed, it should be there,” he said.

By Curtis Wackerle