Title
Incorporated County Of Los Alamos Code Ordinance No. 02-321, An Ordinance Amending the text of Chapter 16, Article I Section 9, and Article VII Section 288 and adding a new Section 289, to adopt local regulations for cannabis retail sales and amending the text of Article VII Section 277 regarding home occupations.
Recommended Action
I introduce, without prejudice, Incorporated County of Los Alamos Code Ordinance No. 02-321 and ask the staff to assure that it is published as provided in the County Charter.
I further move that the public Hearing for this Ordinance be set for December 7, 2021.
County Manager's Recommendation
The County Manager recommends that Council introduce this Code Ordinance.
Board, Commission or Committee Recommendation
The Planning and Zoning Commission at its October 27, 2021 meeting made the motion to recommend approval of Planning and Zoning Case No. ZCA-2021-0011 to County Council for a text amendment to Los Alamos County Municipal Code, Chapter 16, Article I Section 9, and Article VII Section 288 and adding new Section 289, to adopt local regulations for cannabis retail sales and amending the text of Article VII Section 277 regarding home occupations, through the adoption of Ordinance 02-321 as amended during the public hearing.
Body
The proposed text amendments and associated draft ordinance address cannabis retail sales within Los Alamos County (“the County”) and cannabis uses as defined by County Code as they pertain to home occupations. The proposed text amendments are submitted for consideration in response to the State of New Mexico enacting the Cannabis Regulation Act (“the Act”) legalizing the production, manufacturing, sale, and adult-consumption of cannabis throughout the State of New Mexico.
Los Alamos County is taking steps to address this statewide change. Ordinance No. 02-318 was adopted by the County Council on September 28th, approving text amendments to address cannabis cultivation and manufacturing within the County.
By September 1, 2021, the State Cannabis Control Division ("the Division") will start accepting applications for producers, micro-business producers, and from medical cannabis businesses. By January 1, 2022, the Division will accept applications for all other license types, including for cannabis retail operations, cannabis education and training programs. Legal sales begin on a date set by the Division, which can be no later than April 1, 2022.
The Act expressly defines and limits the amount of local control a municipality or county can impose on the adult-use cannabis industry through its power to regulate land use within their territorial limits. The Act allows municipalities and counties to adopt time, place, and manner rules and regulations that do not conflict with the Act or the Dee Johnson Clean Indoor Air Act, including rules that reasonably limit density of licenses and operating times consistent with neighborhood uses as well as establishing rules and regulations for the smoking, vaporizing and ingesting of cannabis products within an indoor or outdoor cannabis consumption area.
However, the Act prohibits a municipality or county from:
• completely prohibiting the operation of licensed adult-use cannabis operations within its boundaries;
• preventing the transportation cannabis products on public roads when such transport is in compliance with the Act;
• prohibiting or limiting signage attached to or located on licensed premises that identifies the premises as a cannabis establishment;
• requiring a licensed premises or a cannabis consumption area to relocate more than three hundred feet from a school or daycare center that was in existence at the time the cannabis establishment was licensed; and
• requiring an existing licensee to relocate, or prohibit a person from producing homegrown cannabis as provided for in the Act.
By September 1, 2021, the State Cannabis Control Division ("the Division") started accepting applications for producers, micro-business producers, and from medical cannabis businesses. By January 1, 2022, the Division will accept applications for all other license types, including for cannabis education and training programs. Legal sales begin on a date set by the Division, which can be no later than April 1, 2022.
Although the County’s Chapter 16 Development Code is currently undergoing an update process, the County is attempting to incorporate State law changes into County Code in order to have local regulations in place by January 1, 2022, or as soon as possible.
If the Planning and Zoning Commission recommended Ordinance No. 02-321, or some modification of this ordinance, is not adopted and staff is directed to introduce a new ordinance regarding cannabis retail sales and home occupations related to cannabis use categories in the County, the County may lose the ability to provide local regulations for retail licenses granted by the state until a local ordinance is passed. This is because in the absence of a local ordinance, license applications submitted to the division after September 1, 2021, and prior to the passage of a local ordinance, will be reviewed on the basis of current State requirements.
Using State law as a guideline, staff has submitted proposed changes to County Code that address cannabis and cannabis retail sales. If approved, the proposed text amendments would be implemented through the adoption of Ordinance 02-321. The proposed text amendments only address land use issues and do not address personal or individual cannabis use.
The proposed additions to County Code include definitions within the code for cannabis and cannabis retail as a use category and local regulations for cannabis retail establishments. Proposed additions also include amending the Use Index Table by adding cannabis retail as a use category, then identifying within which zoning districts of the County this use may be permitted as an allowable (i.e. permitted) or accessory use.
Cannabis Retail Regulations
Proposed local regulations within the ordinance for the defined cannabis retail use include:
(a) This use must comply with all applicable local and State regulations and licensing.
(b) No cannabis retail establishment shall be licensed if located within 300 feet of a school or daycare center.
(c) No cannabis retail establishment shall be licensed if within 300 feet of another cannabis retail establishment.
(d) It shall be unlawful for any cannabis retail establishment licensed pursuant to this development code to remain open to the public at any time other than between the hours of 7:00 a.m. and 12:00 a.m. daily.
(e) Cannabis retail establishments shall not be permitted to have indoor or outdoor designated vaping or smoking areas as defined in Sec. 18-31.
The Act allows local governments to establish buffer zones from schools or daycare centers. The proposed buffer zone of 300 feet has been proposed and has been adopted by other New Mexico cities and counties.
The Act allows local governments to consider applying density restrictions between cannabis retail establishments. The proposed buffer zone of 300 feet has been proposed based as a basis to reasonably limit density of such establishments in the commercial, downtown, and mixed-used zones. It is also comparable to how other cities and counties have addressed this issue when applying a density limit to cannabis retail operations within their jurisdictions. Attachment C of the Planning & Zoning Commission staff report provides an illustration of a 300 feet density limit within areas where cannabis retail use would be allowed as a permitted or accessory use within the County.
The Act allows local governments the ability to establish hours of operation for cannabis retail operators. The proposed time period matches existing hours of operation limits for liquor stores as currently regulated by the State.
The Act allows local governments the ability to allow or prohibit cannabis retail stores having on-site consumption areas. The proposed restrictions to smoking or vaping consumption areas attached to retail operators have been recommended by the Planning & Zoning Commission.
Use Index Table
Cannabis retail use is proposed to be an allowable use as permitted or accessory use generally where retail use is allowed as permitted or accessory in the County’s commercial, manufacturing, downtown, and mixed-use districts.
It is proposed that cannabis retail be allowed in the County’s Commercial zoning districts (C1, C2, and C3) as a permitted use, just as existing retail use is permitted within these zones. Staff has proposed cannabis retail use be allowed as an accessory use within the County’s Manufacturing zoning districts (M1 and M2), just as existing retail use is allowed as an accessory use within these zones. It is proposed that cannabis retail be allowed in the Downtown zoning districts (DT-TC, DT-NC, and DT-NG) as a permitted use, just as existing retail use is permitted within these zones. It is proposed that cannabis retail be an accessory use, and not a primary use, within the Mixed-Use district, due to the fact that the Mixed-Use zone allows for residential uses as well. Attachment D to the Planning & Zoning Commission staff report displays proposed zoning districts for cannabis retail as a permitted or accessory use.
It is proposed that cannabis retail use not be an allowable use as an accessory use within any residential zone district. It is proposed that cannabis retail not be an accessory use within the Research and Development (R&D) zoning district as the County’s existing zoning map includes an area of Los Alamos National Laboratory (LANL) identified as R&D which the County does not have jurisdiction over, and a small parcel on North Mesa which is located within a primarily residential area. It is proposed that cannabis retail not be allowed as an accessory use within the Professional Office (PO) district as the intent of the zone district to only allow retail uses if they are subsidiary to professional services is not perceived as compatible with cannabis retail use. And lastly, it is proposed that cannabis retail not be an accessory use in the specific Downtown zoning district of DT-CPO as this area contains Fuller Lodge, Ashley Pond, the library and other amenities which are not perceived as being compatible with allowing cannabis retail as an accessory use.
Recommendations are based on where existing permitted retail uses are allowed as permitted or accessory uses with the County, and on expertise in interpreting the intent of zoning district standards.
Home Occupations Regulations
The proposed ordinance also includes text amendments to Article VII, Section 277 and 278.
Section 277 would be amended to identify that within the Residential/Agricultural (R-A) district, cannabis manufacturing, cannabis retail and cannabis cultivation, except as authorized by the State as licensed producer pursuant to the Lynn and Erin Compassionate Use Act (i.e. medical marijuana), are not allowed as home occupation uses.
Section 278 would be amended to identify that within all other residential zone districts, cannabis manufacturing, cannabis retail and cannabis cultivation, except as authorized by the State as licensed producer pursuant to the Lynn and Erin Compassionate Use Act (i.e. medical marijuana), are not allowed as home occupation uses.
Proposed Public Hearing Schedule:
Staff is suggesting a public hearing date of December 7, 2021 so that the ordinance can be effective as close to January 1, 2022 as possible.
Alternatives
Council may choose not to introduce this ordinance, or may request staff to return with changes.
Attachments
A - Ordinance 02-321
B - Planning and Zoning Commission Staff Report
C - Planning and Zoning Commission Final Order