REGULAR MEETING OF THE BOARD OF COUNTY COMMISSIONERS

Tuesday March 7, 2023

 

          ALL PRESENT:  Commissioner Ostlund, Chair; Commissioners Morse and Jones; Board Clerk Teri Reitz; Clerk and Recorder Jeff Martin.

          PLEDGE: MOMENT OF SILENCE, Held.

          Commissioner Morse made a MOTION to table item 5 on the Consent Agenda, Commissioner Jones seconded.  Passed Unanimous.

          BID OPENING – Bid Opening for the Pre-Demolition Asbestos Abatement of the Former Sheriff’s Building.

                                                Bid Bond                    Base Bid

Shroeder Contracting, Inc.              Yes                        $54,400.00

Environmental Contractors, LLC       No                         $63,636.00

Safetech, Inc.                              Yes                        $46,900.00

Commissioner Morse made a MOTION to refer the bids to staff for recommendation, Commissioner Jones seconded.  Passed Unanimous

          9:30 a.m. PUBLIC HEARING – Second Public Hearing for Resolution 23-14 to Adopt Ordinance to Limit Traffic on Elk River Road to Local Traffic.  Commissioner Ostlund opened the Public Hearing.  Two people spoke in opposition of the proposed ordinance.  Hearing no other comments Commissioner Ostlund closed the Public Hearing.  Commissioner Morse made a MOTION to deny Resolution 23-14, Commissioner Jones seconded.  Passed Unanimous.

          PUBLIC COMMENTS ON REGULAR, CONSENT AND FILED AGENDA ITEMS – Hearing no comment Commissioner Ostlund continued the Board Meeting.

          BIG SKY ECONOMIC DEVELOPMENT AUTHORITY – Notice of the First Public Hearing for Community Development Block Grant (CDBG) Funds – Public Hearing Set for Tuesday March 21, 2023 @ 9:30 a.m. in Room 3108.  Commissioner Jones made a MOTION to approve the Notice of First Public Hearing, Commissioner Morse seconded.  Passed Unanimous. 

          PLANNING DEPARTMENT – Resolution 23-25 Clarifying Nonconforming Marijuana Business.  Ms. Monica Plecker, Planning Division Manager stated this is a resolution that is seeking clarification on the intent related to nonconforming and illegal marijuana businesses.  There can businesses that are nonconforming or illegal because they can’t make the separation distances that are a part of the interim regulations, or they are in a district that doesn’t allow that type of use.  Administration of these regulations in 2022 proved to be challenging as the county was part of the complaint, which resulted in a temporary legal injunction that prevented us from being able to enforce the regulations.  The county’s response to the TRO stated that the Board of County Commissioners did not intend to prevent existing businesses who were licensed by the state from selling legally allowable products.  During the time in which the TRO existed the County Attorney’s office began the practice of issuing compliance letters to nonconforming and illegal marijuana businesses.  These letters grant special permissions that are contrary to the county’s interim regulations.  The case has since been dismissed and there was no action that permanently enjoined the county from enforcing the regulations.  The case associated with the TRO was not formally dismissed until September 15, 2022.  The Planning Division is responsible for administering the zoning regulations and is actively responding to requests from business owners for zoning clarification letters.  Specifically, these letters are needed by these businesses to provide to the state for their annual renewals.  The Planning Division is issuing letters that reflect the adopted interim regulations.  This has created challenges for these business owners who have previously been granted special permissions from the County Attorney’s office.  Therefore, we are in a situation where we need clarification.  The resolution that is before you today would accomplish the four following things.  It would give the Board of County Commissioners the opportunity to state what their intentions are as it relates to these affected businesses.  Two it would give staff direction of how to proceed when issuing these zoning compliance letters.  Three it would give staff direction on solutions for the permanent regulations which must be considered by the Board prior to September 1, 2023.  Four it would give business owners direction and predictability.  Specifically positive action on this resolution would clarify what the Boards intention was originally as written in the interim regulations.  However, it will acknowledge the special permissions that were granted and give staff direction to continue providing letters to these businesses to continue their uses for the life of the interim regulations.  Lastly the Board would need to consider and provide direction to staff a on sunset period which would be proposed with the permanent regulations.  Staff would suggest to the Board of County Commissioners that you consider a time period of 12, 18 or 24 months.  The resolution does have a blank on it in which that time period would be placed.  Commissioner Jones asked if the businesses were allowed to continue during this interim period.  It is like being grandfathered in, you can’t add or do anything else with your business.  Ms. Plecker stated that this is a little more convoluted than that.  Some of these businesses, specifically there were 11 businesses in the fall of 2020 that were notified that the County adopted the interim regulations.  The letters identified how these businesses didn’t meet the regulations.  Businesses that were selling medical marijuana before, the way the regulations were written is that they couldn’t expand into the sale of recreational use, they could continue their medical, but they couldn’t expand.  The letters that were provided from the County Attorney’s office said you can expand.  The challenge is that the letters say one thing and the regulations say another.  The regulations are what is adopted.  We need clarification so that when these business owners come to the planning division we can write and say for these reasons you are allowed to continue, for these reasons you allowed to continue for a certain amount of time, for these reasons you are not in conformance with the zoning and cannot issue the letter you are seeking.  There is a case-by-case basis.  Some businesses were selling medical in zones that didn’t allow it.  Commissioner Ostlund stated that what this resolution does is allow existing exemptions for marijuana businesses to get their letters of compliance with this resolution for 12, 18 or 24 months as it relates to the sunset.  Ms. Plecker stated correct.  To state it back just differently.  If you pass this resolution the businesses that are considered nonconforming, our office will issue letters saying you are able to continue your business through the life of the interim regulations and further you are able to continue your business for a period of 12, 18 or 24 months after the permanent regulations are adopted.  Once that time expires you will have to either be in conformance or you won’t be able to receive another letter.  Commissioner Jones stated that goes back to my question as far as grandfathering them in if they were nonconforming.  A lot of times we grandfather stuff in an say it is not conforming, we can’t do anything else with it, but we can still stay in business.  That is what I am saying if you put 24 months on it, there have been some big investments made.  I am not comfortable putting in a sunset period.  I think it should be more on a grandfathered in basis.  Commissioner Ostlund stated that is concern for everyone.  This allows us 12, 18 or 24 months to review it and I would prefer 24 months and it still allows us to make them permanent if we chose going forward.  Ms. Plecker stated that you can.  I think the idea of a sunset, there were a couple different motivations for it.  If these businesses in the permanent regulations are continued to be identified as illegal or nonconforming the sunset would say: there were a series of issues that occurred that created this messy situation and we want to put you on notice that it is our intent to phase you out of these areas were the use is not allowable by zoning.  Because this is a resolution to provide guidance to staff for those permanent regulations.  When we come to you before September with a permanent set and you say we are no longer comfortable with the sunset, we would rather have language that would permanently grandfather those businesses in, we can do that.  Ms. Plecker stated she wouldn’t let this issue discourage you from voting on the resolution because we do need timely action from you, so I can get these business owners letters quickly stating that they are allowed to continue right now.  If you feel comfortable you could just strike in your motion any language related to the sunset and have the resolution state that they will be able to continue through the life of the interim regulation and any long-term solution can be handled with the permanent regulations.  Commissioner Ostlund stated that would give us 24 months to handle this.  Ms. Plecker stated that is correct.  Commissioner Morse made a MOTION to approve Resolution 23-25 with a sunset of 24 months, Commissioner Ostlund seconded.  Commissioner Jones stated he wants to strike out 24 months on the resolution.  Commissioner Jones stated he is not a fan of marijuana sales however the business has become legal and thinks the sunset needs to taken out of the resolution and addressed when the permanent regulations are written.  Commissioner Ostlund stated that he agreed with Commissioner Jones and stated that people have invested a significant amount of money into their businesses.  There is some ambiguity about the letters that went out, however there is some zoning issues that are there, 24 months gives us enough time to see how these businesses work within the zones they are in and have some better decision-making capabilities.  Commissioner Morse stated if I am understanding this correctly by putting a timeframe in there it gives the Planning Department the ability to issue the letters somewhat quickly for any businesses that need them to continue to operate.  Ms. Plecker stated that is correct I could write the letters right now.  The thing about the sunset it doesn’t give you the opportunity to evaluate how the businesses operate, the sunset would say we intend to phase you out over this period of 24 months.  If the Board is uncomfortable making that statement right now you should consider an amendment to your motion and strike that language about the sunset from the resolution.  Mr. Levi Robison, Deputy County Attorney stated that he believes this resolution is a two-part resolution.  The action today is to allow Planning to give the compliance letters to businesses to let them know that through the life of the interim regulations they are in compliance with all zoning.  The second part isn’t really action on your part, it is just a notice of intent that this is where you are thinking is that when we do the permanent regulations this is where we are headed.  You are not starting a clock on the 24 months today.  Commissioner Ostlund stated that zoning is land use protection and there are reasons to have zoning in place.  Commissioner Jones stated that the regulations can still be changed.  Ms. Plecker stated yes you can, and we must bring a permanent set of regulations to you by September 1, 2023.  It is helpful for staff to know what you are thinking so that when we bring forward the permanent regulations it aligns with what you are thinking, and we don’t have to make to many amendments to them.  MOTION passed 2-1.  Commissioner Jones voted against the motion.             

          CLAIMS – Batches 23-123, 23-124, 23-125, 23-126, 23-127 and 23-128.  Commissioner Jones made a MOTION to approve the Claims, Commissioner Morse seconded.  Passed Unanimous.

          CONSENT AGENDA – 1.  CLERK AND RECORDER – A.)  Agricultural Covenant for Tract 1B2-B and 1B2-C, Amended Tract 1B Certificate of Survey 1424, 2^nd Amendment.  B.)  Plat of Highlands Ranch Subdivision and the S.I.A.  2.  COMMISSIONERS – A.)  Board Openings – Updated List.  B.)  Agreement for Professional Duties – Kevin Gillen.  3.  COUNTY ATTORNEY – Resolution 23-23 Requesting Prosecutorial Assistance in State v. Joshua Morgan Smith.  4.  FINANCE – A.)  ARPA Projects Tracking Sheet thru 2.28.23.  B.)  Agreement with WWC Engineering for Round Building Demolition & New Parking Lot Design.  C.)  CDBG Program, Signature Certification Form.  D.)  Semi-Annual Bond Review with Travelers Insurance.  E.)  New National Opioids Settlements.  5.  METRAPARK – Advertising Agreement – Kirkness Roofing. – TABLED.  6.  PUBLIC WORKS – A.)  Contract with Donnes, Inc. for Riprap on Duck Creek Bridge.  B.)  Vehicle Title for Trade In.  7.  HUMAN RESOURCES – PERSONNEL ACTION REPORTS – Justice Court – 1 Termination; Detention Facility – 1 Salary & Other, 3 Terminations.

          FILE ITEMS – 1.  FINANCE – Local Assistance and Tribal Consistency Fund Annual Report for Activity through 12/31/22.  Commissioner Morse made a MOTION to approve the Consent Agenda and place the File Items to file, Commissioner Jones seconded.  Passed Unanimous. 

          PUBLIC COMMENTS ON COUNTY BUSINESS – Five people spoke regarding clarification of nonconforming marijuana businesses.  Hearing no other comments Commissioner Ostlund adjourned the meeting at 10:07 a.m.

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