In November 2012, voters approved Amendment 64, legalizing marijuana for adults over age 21. Establishing regulations for marijuana use across Colorado has often been about trial and error, such as the number of plants people can grow on their property.|
As of Jan. 1, 2018, in a home grow operation, the amount of plants allowed is up to six plants per Colorado resident over 21 years old and a maximum of 12 plants per residence.
It is illegal to sell marijuana or marijuana products obtained from those grow operations.
While not officially defined by the Colorado Revised Statutes, the black market marijuana industry is described as unlicensed marijuana cultivation or distribution operations conducted in violation of the state law.
According to the Marijuana Policy Group’s website, “The marijuana industry generates more local output and employment per dollar spent than almost any other Colorado sector.”
Every dollar spent on marijuana retail, marijuana manufacturing and marijuana cultivation equates to $2.40, $2.34 and $2.13, respectively, back into the Colorado economy, the website states. With such a profitable industry, there is the risk of illegal black market operations that seek to infiltrate the industry and make their own profits, without the constraints placed on legal grow operations.
Jacqueline Kirby, media relations manager with the El Paso County sheriff’s office, said the department has conducted raids on 61 illegal marijuana grow operations in the county, including the city of Colorado Springs, since Jan. 1. She said another 600 illegal operations have yet to be raided.
Steve Schleiker, EPC assessor, wrote in an email to “The New Falcon Herald:” “I have seen a range of properties that are located either in rural and/or metro El Paso County used as illegal grows, and many of these properties are rentals.”
Given the possibility that a rental property might eventually be used for an illegal marijuana grow operation, concern turns to the potential responsibility and liability of the property’s owner and/or the landlord.
A homeowner or landlord would not be held criminally liable for any criminal activity conducted on their property, unless it was the landlord or homeowner conducting the criminal activity, Kirby said. That includes illegally growing marijuana, she said.
However, a homeowner or a property manager is required by Colorado law to disclose any known adverse material facts about a home, including mold and other problems that can be the result of growing marijuana, Schleiker wrote.
Among Schleiker’s list of damages incurred on properties used for illegal grow operations: rigged circuit boxes to illegally tap into outside electrical lines to power lights for indoor grows, without alerting the local power company; punched holes in ceiling and roofs to install ventilation; mold under rugs and behind drywall, sometimes running up the drywall from floor to ceiling and mold that has grown into the floor joists. In some cases, major fire hazards exist like electrical cords sitting in standing water; sometimes, the home is beyond repair.
In many instances, the “Cost to Cure” –- the amount of money necessary to remedy a situation that is depressing the value of real property –- adds up to thousands of dollars, Schleiker wrote.
While all criminal activity cannot be foreseen and avoided, there are some ways landlords and property owners can attempt to protect themselves from having their home turned into an illegal grow operation. According to the Robinson & Henry, P.C. (attorneys) website, a landlord or homeowner can include crime and drug-free clauses into the lease.
The use of hydroponics –- a method of growing plants without soil, frequently used for growing marijuana –- can result in mold growth and vast consumption of electricity, the website states. “The process to kill the toxic mold is expensive and likely a cost that a tenant will attempt to force onto the landlord.”
The Robinson & Henry website states that a written provision can be added to a lease to prohibit criminal activity in or on the rental’s premises. “Also, a provision prohibiting hydroponic cultivation or any cultivation of marijuana plants makes growing marijuana plants a lease violation and thus allows a landlord to evict for such a violation.”
Violations of a lease should be handled by a private attorney, which could be the only way a landlord or homeowner can recover the costs of any damage done to the property as a result of the illegal grow operations, the website states.
“It is my opinion that an illegal marijuana grow will definitely affect a buyers pool (potential renters) on that particular property,” Schleiker wrote.
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The Friends of the Black Forest Preservation Plan, El Paso County and the developers who sought approval of the Retreat at TimberRidge subdivision in eastern EPC remain in litigation.|
According to the June issue of “The New Falcon Herald,” the FoBFPP filed an appeal April 24 on a decision made by the EPC Board of County Commissioners that approved a planned unit development rezoning for a 262.92-acre parcel north of the proposed Stapleton Road/Briargate Boulevard extension, which is bisected by Vollmer Road.
On March 6, the EPC planning commission denied the rezoning proposal in a 7-0 vote; however, on March 27, the BOCC, in a 3-2 vote, with commissioners Darryl Glenn and Longinos Gonzalez opposed, approved the request.
The approved plan rezoned the property from residential rural 5, which mandated lot sizes of 5 acres or larger -– to planned unit development. According to the NFH article, the approval of the PUD could allow the developers to create lots much smaller than those of the surrounding neighborhood. The approved new plan includes 212 lots of about 1/3 acre, 1 acre, 2.5 acres and 5 acres, with about 72 percent of the lots planned for the smallest size.
Leif Garrison, an attorney with Gould, Whitley & Marshall in Colorado Springs and spokesman for the FoBFPP, said the developers have responded and have filed counterclaims against the individual plaintiffs in the original lawsuit.
“Instead of responding to an attempt by concerned citizens to seek judicial review of a land use decision by the Board of County Commissioners, Arroyo Investments LLC, Robert Scott Contractors Inc. and Jacob Decoto have filed counterclaims seeking damages against the citizen group and its individual leaders,” Garrison said. “Their counterclaim is what is known as a SLAPP suit, which stands for strategic lawsuit against public participation, and essentially amounts to intimidation.”
The developers’ counterclaim, filed June 12, accuses the FoBFPP of abuse of process, fraudulent misrepresentation, fraudulent concealment and civil conspiracy, according to the counterclaim’s documents.
Garrison said the counterclaim is “ill-founded” for a few reasons, including that the PUD, which calls for urban type density, does not generally conform to the EPC Master Plan, which includes all small-area plans such as the Black Forest Preservation Plan.
According to the BFPP, which was first developed in 1974 and updated in 1985, one goal for the growth and land use in the area is to “preserve and enhance the sensitive natural environment and unique community character of the Black Forest Planning Area.” The plan also lists proposed actions for the BOCC when considering development proposals and states, “Zone changes or variances resulting in densities which are inconsistent with the adopted Plan should be disapproved.”
“The plaintiffs and their group, the Friends of the Black Forest Preservation Plan, are seeking only to defend and enforce the long-standing land use plan that was adopted and revised by El Paso County and has existed for decades,” Garrison said.
Although the complaint listed the developers as defendants, it only made claims about the county and its decisions, he said. No claims were made against the developers and the counterclaim filed against the FoBFPP is an apparent attempt to “silence their voices with intimidation,” Garrison said.
On July 10, Garrison filed a reply to the developers’ counterclaim. As of the printing of this article, no ruling has been made on either the original complaint or the counterclaim, he said.
“When the judge rules on the suits, he or she is going to rule either that the county did the right thing and voted correctly, or the county voted wrong,” Garrison said. “That is all it is.”