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OFFICE OF THE DIRECTOR OF THE DEPARTMENT OF EXCISE AND LICENSES
CITY AND COUNTY OF DENVER, COLORADO
RECOMMENDED DECISION
IN THE MATTER OF THE APPLICATION BY COLORADO HEALTH
CONSULTANTS, LLC, DOING BUSINESS AS STARBUDS FOR RENEWAL OF ITS
RETAIL MARIJUANA CULTIVATION LICENSE FOR THE PREMISES KNOWN
AND DESIGNATED AS 4690 BRIGHTON BOULEVARD, DENVER, COLORADO
This matter came on for hearing on Monday, April 25, 2016, pursuant to an application filed by
the Applicant, Colorado Health Consultants, LLC, doing business as Starbuds, (hereinafter,
“Applicant” or “Starbuds”) for the annual renewal of its retail marijuana cultivation license for
the premises known and designated as 4690 Brighton Boulevard, in Denver, Colorado. This
location is also licensed for the retail sale of marijuana to the public.
The Applicant was represented at the hearing by attorney Jim McTurnan, Colorado attorney
registration number 40790. The Denver Department of Excise and Licenses (“the Department”)
was represented by Assistant City Attorney Colleen Morey, Colorado attorney registration
number 40252.
Representatives of two registered neighborhood organizations appeared in opposition to the
renewal application: Nola Miguel of the Cross Community Coalition, and Nancy Grandys-Jones
of Globeville Civic Partners. Other parties in interest who appeared in opposition to the renewal
application were neighborhood residents, William Andrew “Drew” Dutcher, Allison Anderson,
and Leo Branstetter (also a landlord in the designated neighborhood), and Paul Andrews,
President and CEO of the National Western Stock Show, within the designated neighborhood.
No Denver City Councilmember appeared at the hearing.
After reviewing the exhibits received into evidence, documents officially noticed, the testimony
of the witnesses, the statements of counsel, and applying existing law, the Hearing Officer enters
the following findings of fact, conclusions of law, and recommended decision:
The renewal of Starbuds cultivation license is subject to D.R.M.C. section 6-214(a)(2)
1. A threshold issue in this case is whether Starbuds’ retail marijuana cultivation license is
subject to Denver Revised Municipal Code (“D.R.M.C.”) section 6-214(a)(1), for zone
districts where plant husbandry is authorized as a permitted use under the zoning code, or
whether it is subject to D.R.M.C. section 6-214(a)(2), where plant husbandry is not a
permitted use, but is occurring as a compliant or nonconforming use under the zoning
code.
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2. For retail marijuana cultivation licenses that are subject to section 6-214(a)(2), the
Department Director is authorized, pursuant to D.R.M.C. section 6-214(a)(3), to hold a
public hearing prior to the annual renewal of the license. There are also additional
grounds for non-renewal of retail marijuana cultivation licenses that are subject to
D.R.M.C. section 6-214(a)(2) (which do not apply to renewal of licenses subject to
D.R.M.C. section 6-214(a)(1)), as discussed below.
3. At the April 25 public hearing, Starbuds first raised the issue that it was subject to
D.R.M.C. section 6-214(a)(1). After the conclusion of the April 25 public hearing,
Starbuds’ counsel, Mr. Jim McTurnan submitted a letter to the Department dated April
28, 2016, where he contended that Starbuds’ zoning permit for its premises at 4690
Brighton Boulevard authorizes plant husbandry as an accessory use, although he
concedes that plant husbandry is not permitted as a primary use under the zoning code for
Starbuds’ licensed premises. He interprets D.R.M.C. section 6-214(a)(1) to apply to all
premises where plant husbandry is authorized as an accessory use, and therefore Starbuds
contends that it is not subject to D.R.M.C. section 6-214(a)(2) and the related public
hearing provisions of D.R.M.C. section 6-214(a)(3). Therefore, Starbuds contends that
the Department is without jurisdiction to hold a public hearing on the renewal of its retail
marijuana cultivation license.
4. The Hearing Officer first addresses whether the issue raised by Starbuds is jurisdictional,
and concludes that this is not a jurisdictional issue. Subject-matter jurisdiction, as
explained in Horton v. Suthers, 43 P.3d 611, 615 (Colo. 2002), concerns:
“the court's authority to deal with the class of cases in which it renders
judgment." Closed Basin Landowners Ass'n. v. Rio Grande Water
Conservation Dist., 734 P.2d 627, 636 (Colo.1987) (quoting In re
Marriage of Stroud, 631 P.2d 168, 170 (Colo.1981)). A court has subject-
matter jurisdiction if "the case is one of the type of cases that the court has
been empowered to entertain by the sovereign from which the court
derives its authority." Paine, Webber, Jackson & Curtis, Inc. v. Adams,
718 P.2d 508, 513 (Colo.1986).
5. Applying these principles in this case, the Director of the Department has the authority
and discretion to issue and renew retail marijuana cultivation licenses, and therefore has
subject matter jurisdiction over Starbuds’ application for renewal of its cultivation
license. When the Denver Retail Marijuana Code was adopted by the Denver City
Council, the Director of the Denver Department of Excise and Licenses was designated to
act as the local licensing authority for the city in regard to retail marijuana
establishments, including retail marijuana cultivation licenses. D.R.M.C. section 6-
204(a). The issuance of local licenses for retail marijuana establishments, including retail
marijuana cultivation facilities, is a matter within the Director’s discretion. D.R.M.C.
section 6-207.
6. In this case, Starbuds failed to object in a timely fashion to the holding of a public
hearing, which should have been raised prior to the convening of the April 25 hearing.
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Starbuds’ lack of timeliness could be deemed a waiver of this issue. Nevertheless, the
Hearing Officer has considered all of the arguments contained in the April 28 letter, in
addition to the evidence and arguments presented by Starbuds at the April 25 hearing.
7. Mr. McTurnan’s April 28 letter mischaracterizes the hearing on April 25 as concerning
the renewal of “the optional premises cultivation license for Colorado Health
Consultants, LLC dba Starbuds, operating at 4690 Brighton Blvd.” The hearing on April
25 concerned a retail marijuana cultivation license only. Optional premises cultivation
licenses are issued for medical marijuana only. D.R.M.C. section 24-506(b). Secondly,
in his letter, Mr. McTurnan mistakenly asserts that there was “considerable confusion
amongst all parties and the hearing officer as to the status of the zoning.” To the
contrary, the record at the hearing does not reflect any confusion on the part of the
hearing officer, but rather a recognition of the issue regarding the zoning status.
Zoning status of 4690 Brighton Boulevard
8. It is undisputed that Starbuds’ licensed premises at 4690 Brighton Boulevard is on a lot
zoned as I-MX-3. The Denver Zoning Code is found on the City of Denver’s official
government website at this link:
https://www.denvergov.org/content/dam/denvergov/Portals/646/documents/Zoning/DZC/
Complete_Denver_Zoning_Code.pdf
9. As defined by Section 9.1.2.1 of the Denver Zoning Code, I-MX is an abbreviation for
Industrial Mixed Use Districts, which “accommodate a variety of industrial, commercial,
civic and residential uses.” I-MX-3 “applies to industrially-dominated areas served
primarily by local or collector streets with a maximum building height of 3 stories.” Id.
10. Prior to commencing its marijuana cultivation operations, Starbuds submitted an
application for a zoning permit on February 26, 2013, and the zoning permit was
approved on March 19, 2013. (Starbuds’ letter dated April 28, 2016). The Hearing
Officer takes official notice of the Zoning Permit submitted to the Department on
February 17, 2016, which is part of Starbuds’ License Renewal Application. The Zoning
Permit also notes that it was issued pursuant to the authority of “Ordinance Section
#9.1.4.5,” which is a reference to the 2010 Denver Zoning Code.
11. Section 9.1.4.5 of the Denver Zoning Code is entitled “District Specific Standards” and
has a table which presents three types of uses: first all primary uses, then all accessory
uses, and finally all temporary uses (Section 9.1.4.2). The table has four columns: “Use
Category,” “Specific Use Type,” a third column that is subdivided with five Industrial
zone districts: I-MX-3 (at issue here), I-MX-5, I-MX-8, I-A, and I-B, and a fourth
column labeled “Applicable Use Limitations.”
12. The table in Section 9.1.4.5 is displayed on pages 9.1-26 to 9.1-34 of the Zoning Code.
At the top of each page of the table, there is a key which explains each of the
abbreviations used in the table. The critical abbreviation relevant to this case is “NP”
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which means “Not Permitted Use.” This abbreviation is also explained in Section 9.1.4.3
entitled “Explanation of Table Abbreviations” which states in paragraph B.3. entitled
“Uses Not Permitted (“NP”)” that “’NP’ in a table cell indicates that the use is not
permitted in the specific Zone District.”
13. The table on page 9.1-32 shows the Agriculture Primary Use Classification and it clearly
shows that plant husbandry has the abbreviation of “NP” for zone lots with the
designation of I-MX-3, which means that it is not permitted as a primary use in the I-
MX-3 zone district. In contrast, the same table shows that plant husbandry has the
abbreviation of “L-ZP” for zone districts I-A and I-B. The abbreviations of “L” and “ZP”
are also explained in Section 9.1.4.3. The abbreviation “L” means that plant husbandry is
permitted as a primary use in the I-A and I-B zone districts subject to compliance with
the use limitations referenced in the last column of the table (“Applicable Use
Limitations”). The abbreviation “ZP” means that plant husbandry is permitted as a
primary use in the I-A and I-B zone districts only if reviewed and approved according to
certain requirements elsewhere in the Zoning Code.
14. Starbuds contends in its April 28 letter that “plant husbandry is PERMITTED as an
ACCESSORY use, though not a primary use, on our zone lot, subject to limitations and
approval by the zoning department. Plant husbandry falls under ‘Unlisted Accessory
Uses’ for I-MX-3 lots.” (All capital letters are original.) Starbuds also contends that
Section 13.3 of the Zoning Code defines “Use, Permitted” to include an accessory use.
15. The Hearing Officer concludes that plant husbandry is not authorized as a primary
permitted use in I-MX-3 zone districts under the Denver Zoning Code.
16. The Hearing Officer interprets D.R.M.C. section 6-214(a)(1) to apply only to locations
where plant husbandry is a primary permitted use under the Zoning Code. The Hearing
Officer concludes that locations with approval of an accessory use of retail marijuana
cultivation, as here, are subject to the provisions of D.R.M.C. section 6-214(a)(2), and the
related public hearing requirement of D.R.M.C. section 6-214(a)(3).
Grounds for non-renewal of a retail marijuana cultivation license under D.R.M.C. section 6-
214(a)(2)
17. For locations that fall under D.R.M.C. 6-214(a)(2), i.e., where plant husbandry is not a
permitted zoning use, a retail marijuana cultivation license may be renewed only if the
applicant meets three conditions:
a. A zoning permit for plant husbandry was applied for upon the same
zone lot on or before July 1, 2010;
b. The applicant can show that an optional premises cultivation license
upon the same zone lot was applied for with the state medical
marijuana licensing authority on or before August 1, 2010, in
accordance with § 12-43.3-103(1)(b), 32 C.R.S; and
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c. The applicant can produce to the satisfaction of the director
documentary or other empirical evidence that the cultivation of medical
marijuana had commenced on the zone lot prior to January 1, 2011.
Grounds for non-renewal of a retail marijuana license under D.R.M.C. section 6-214(a)(3)
18. D.R.M.C. section 6-214(a)(3) provides the following five grounds for non-renewal of
Starbuds’ retail marijuana cultivation license:
a. The existence of the retail marijuana cultivation facility on the licensed
premises has frustrated the implementation of the city's comprehensive
plan and any adopted neighborhood plan applicable to the subject
property;
b. The existence of the retail marijuana cultivation facility on the licensed
premises has negatively affected nearby properties or the neighborhood
in general, including by way of example any adverse effects caused by
excessive noise, odors, vehicular traffic, or any negative effects on
nearby property values;
c. The existence of the retail marijuana cultivation facility has caused
crime rates to increase in the surrounding neighborhood;
d. The continued existence of a licensed retail marijuana cultivation
facility in the subject location will have a deleterious impact on public
health, safety and the general welfare of the neighborhood or the city;
or
e. The applicant or any person from whom the applicant acquired a retail
marijuana business failed to meet one (1) or more of the requirements
specified in paragraph (2) of this subsection (a). (Note: These
requirements are quoted in paragraph 17 above of this Recommended
Decision.)
Summary of the evidence
19. The following exhibits were admitted into evidence:
Applicant’s Exhibit A-1, the Hearing Posting Affidavit, affirming that the
premises were properly posted for a minimum of ten consecutive days, from April
8, 2016, through the date of the hearing, April 25, 2016;
Applicant’s Exhibit A-2, three pre-filed petitions in support of the application for
renewal of the retail marijuana cultivation license;
City’s Exhibit C-1, the Notice and compliance check by a Department inspector
regarding proper posting of the premises;
City’s Exhibit C-2, the Notice of Publication, showing that the notice of the
hearing was duly published, and notifying all interested parties of their right to
appear at a hearing on the license application;
City’s Exhibit C-3, a report generated by the Department entitled “Retail
Marijuana Store Licenses Report” showing four retail marijuana stores within the
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designated neighborhood, including Starbuds, and also listing the names and
contact information for twelve registered neighborhood organizations;
City’s Exhibit C-4, a map of the designated neighborhood around the licensed
premises, as determined by the Department, from which adult residents or
business owners or managers may present evidence at the public hearing, and
exercise the rights of a party in interest pursuant to the Denver Retail Marijuana
Code and the Department’s Policies and Procedures Pertaining to Retail
Marijuana Licensing;
Opponent’s Exhibit O-1, a Recommended Decision dated February 24, 2015,
regarding the previous annual renewal of Starbud’s retail marijuana cultivation
license at 4690 Brighton Boulevard;
Opponent’s Exhibit O-2, a three page letter dated March 23, 2016, signed by Nola
Miguel, on behalf of two non-profit organizations: Globeville Elyria Swansea
LiveWell and Focus Points Family Resource Center, which expresses opposition
to renewal of the retail marijuana cultivation license; and
Opponent’s Exhibit O-3, a two page exhibit of excerpts from the 2015 Elyria and
Swansea Neighborhoods Plan (hereinafter referred to as “the Neighborhood
Plan”).
20. During the course of the hearing, the Hearing Officer also took official notice of two
documents maintained by the City of Denver, after identifying the documents to all
parties, and with no objection. Savage v. State Dept. of Revenue, 704 P.2d 328, 329
(Colo. App. 1985) (cf. C.R.E. 201, regarding judicial notice). These documents are a
letter dated April 5, 2016, from Stacie Loucks, Department Director, to Starbuds in this
renewal matter, and the 2015 Elyria and Swansea Neighborhoods Plan, found on the City
of Denver’s official government website:
https://www.denvergov.org/content/dam/denvergov/Portals/646/documents/planning/Plan
s/Elyria_Swansea_Neighborhood_Plan.pdf
21. Mr. Brian Ruden, the Managing Member and the owner of Starbuds, testified in support
of the renewal application. The premises at 4690 Brighton Boulevard is a two-story
building, with the retail marijuana store on the first floor, and a marijuana cultivation
facility on the second floor, with 240 plants.
22. Mr. Ruden testified that the Applicant’s lease of the premises began in March 2013, when
the Applicant began the cultivation of medical marijuana. In January 2014, the Applicant
added the cultivation of retail marijuana. Mr. Ruden testified that the building had been
vacant for many years prior to the Applicant’s lease of the premises.
23. Mr. T.J. Joudeh also testified in support of the renewal application. Mr. Joudeh is the
owner of the building at 4690 Brighton Boulevard, which he leases to Starbuds. He
purchased the property in early 2013, and he confirmed that the building had been vacant
for many years prior to his purchase. Mr. Joudeh testified that the last time that the
building had been occupied was by the Brooklyn Deli, which was seven or eight years
before he purchased the building in early 2013.
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Starbuds does not meet the requirements of D.R.M.C. section 6-214(a)(2)
24. The Hearing Officer concludes that Starbuds’ retail marijuana cultivation license is not
eligible for renewal pursuant to paragraph e. above of D.R.M.C. section 6-214(a)(3),
because it fails to meet one or more of the requirements of D.R.M.C. section 6-214(a)(2),
and in this case, it fails to meet all three requirements of section 6-214(a)(2). In his
testimony, Mr. Ruden claimed that October 1, 2013, was the key date for
“grandfathering” of his licenses. However, this assertion is incorrect, and the key
relevant dates which are fixed by the Denver Retail Marijuana Code are identified in the
following paragraphs.
25. The evidence is undisputed that Starbuds did not apply for its zoning permit for plant
husbandry on the same zone lot, at 4690 Brighton Boulevard, on or before July 1, 2010.
Prior to commencing its marijuana cultivation operations, Starbuds submitted an
application for a zoning permit on February 26, 2013 and the zoning permit was
approved on March 19, 2013. (Starbuds’ letter dated April 28, 2016). Therefore,
Starbuds fails to meet the requirement of D.R.M.C. section 6-214(a)(2)a.
26. The evidence is also undisputed that an optional premises cultivation license upon the
same zone lot, at 4690 Brighton Boulevard, was not applied for with the state medical
marijuana licensing authority on or before August 1, 2010. The evidence shows that the
building at 4690 Brighton Boulevard was vacant for many years prior to Starbuds’ lease
of the premises in March 2013. Therefore, Starbuds fails to meet the requirement of
D.R.M.C. section 6-214(a)(2)b.
27. The evidence is also undisputed that cultivation of medical marijuana had not
commenced on the zone lot at 4690 Brighton Boulevard, prior to January 1, 2011. Mr.
Ruden testified that medical marijuana cultivation began in March 2013. Therefore,
Starbuds fails to meet the requirement of D.R.M.C. section 6-214(a)(2)c.
Starbuds’ retail marijuana cultivation facility frustrates the neighborhood plan
28. The Elyria and Swansea Neighborhoods Plan, of which the Hearing Officer takes official
notice, was adopted unanimously by the Denver City Council on February 23, 2015.
According to the cover letter for the Neighborhood Plan, written by former Denver City
Councilwoman Judy Montero, the Neighborhood Plan “gives a new and active vision and
a foundation for future regulations to: make Elyria and Swansea a healthier place for
people, control safe and responsible development, protect the character of the
neighborhood and help stabilize the community….This plan is meant to empower you
and the Elyria Swansea community moving forward.”
29. Starbuds is located in the Elyria neighborhood which is bounded by 52nd Avenue and
Riverside Cemetery on the north, York Street to the east, 38th and 40th Avenues on the
south, and the South Platte River on the west. I-70 bisects the neighborhood. The
residential population is 84 percent Latino, with many immigrants who are Spanish
speaking. Over 94 percent of the children receive free school lunches (compared to 73
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percent in Denver Public Schools). The median household income is $38,400, which is
43 percent less than the Denver average, and the average home sale price is $149,000,
which is about half of the Denver average. More than 60% of adults over the age of 25
have less than a 12th grade education. (Plan, pp. 15 and 16).
30. The Neighborhood Plan notes that there is an incompatibility between high intensity
industrial and low density residential areas. “The result is a harsh relationship and edge
between established industrial and established residential areas” with an extent and scale
that is unprecedented in other Denver neighborhoods. “This results in undesired impacts
on residential areas including noise, truck traffic, safety odors and reduced visual
quality.” (Plan, p. 24).
31. Ms. Nola Miguel, a member of the Cross Community Coalition, a registered
neighborhood organization (“RNO”) testified in opposition to the renewal of the license.
Ms. Miguel was authorized by Ms. Candy CdeBaca, the President of the Cross
Community Coalition, to speak on behalf of the RNO at the hearing. Ms. Miguel is the
Director of Globeville Elyria Swansea Right to Live Well, a non-profit organization that
serves residents of the designated neighborhood. Ms. Miguel wrote the letter admitted
into evidence as Exhibit O-2, on behalf of Globeville Elyria Swansea LiveWell and
Focus Points Family Resource Center, which expresses opposition to renewal of the retail
marijuana cultivation license.
32. Ms. Miguel was a member of the steering committee which developed the 2015 Elyria
and Swansea Neighborhoods Plan. The role of the steering committee is referenced on p.
2 of the Neighborhood Plan. Ms. Miguel testified that the process to develop the
Neighborhood Plan was initiated by the Denver Department of Community Planning and
Development. She participated in steering committee meetings once or twice a month for
two years as the Neighborhood Plan was being developed. Ms. Miguel testified that the
existence of Starbuds’ retail marijuana cultivation facility at 4690 Brighton Boulevard
frustrates the implementation of the Neighborhood Plan. Ms. Miguel also included some
excerpts from this Neighborhood Plan in Exhibit O-3, which she testified are frustrated
by the renewal of this cultivation license.
33. Ms. Miguel testified that the Neighborhood Plan identifies “transformative projects”
including (i) having a buffer between industrial and residential properties, and (ii) the
National Western Center Development, which are both frustrated by marijuana
cultivation at the Starbuds location. “Transformative” projects are defined as meaning
that their “implementation is essential to achieving the Plan Vision over the next 20
years.” (Plan, p. 7).
34. Section E.3 of the Neighborhood Plan, as documented in Exhibit O-3, states that: “Light
industrial transitions along neighborhood edges should be encouraged to provide visual
and noise buffers between residential and industrial areas.” Section E.3 explains different
ways that the buffer can be achieved, including transitioning industrial uses embedded in
residential areas (as the case here) to a mixed use zone district.
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35. Ms. Miguel explained how the location of Starbuds is an “area of change” established by
the Neighborhood Plan, as depicted in Exhibit O-3, which although currently zoned as I-
MX (industrial mixed use), would transition to a mixed use zone district. (Plan, pp. 25-
28). Thus, Ms. Miguel testified that marijuana cultivation would be even more
incompatible with the mixed use zone district than it is with the current I-MX zone
district. Exhibit O-3 also shows that there are many single family homes in a residential
zone, which is immediately adjacent to Starbuds, with some residences having a backyard
that adjoins the Starbuds property.
36. Ms. Miguel testified that another aspect of the Neighborhood Plan which is frustrated by
the cultivation facility concerns the problem with odor impacts from marijuana grow
facilities. Exhibit O-3 references paragraph D30 of the Neighborhood Plan which
specifically addresses mitigating odor impacts associated with marijuana grow facilities.
This is one of many references in the Neighborhood Plan to mitigating odors in the
neighborhood that are associated with marijuana grow facilities. The section of the
Neighborhood Plan entitled “Neighborhood Input” documents that environmental
contamination and pollution concerns expressed by residents include undesirable smells
from marijuana grow facilities. (Plan, p. 8). The Section of the Neighborhood Plan
entitled “Healthy Issues and Opportunities” also documents that the marijuana industry is
an additional source of environmental impacts including odor. (Plan, p. 76).
Recommendation D5 of the Plan concerns improving environmental quality by mitigating
odors and emissions from marijuana grow facilities on residential neighborhoods through
methods such as land use designation, siting, buffering, etc. (Plan, p. 77).
37. Mr. William Andrew “Drew” Dutcher testified in opposition to the renewal application.
Mr. Dutcher is a resident of the designated neighborhood, and has owned his home in the
4600 block of High Street since 2007. He is also the President of the Elyria and Swansea
Neighborhood Association. However, Mr. Dutcher testified that the RNO has not taken a
position on this application, and his testimony is offered in his capacity as a resident of
the designated neighborhood.
38. Mr. Dutcher testified that he was also a member of the steering committee that developed
the Neighborhood Plan, in a joint effort with the Denver Department of Community
Planning and Development, and the Denver Department of Public Works. Mr. Dutcher
testified that he began his involvement with the steering committee in 2013, and
participated in monthly meetings. He testified that the Neighborhood Plan was subject to
reviews by the Denver Planning Board, and then by a committee of City Council, and
then was approved by the entire City Council in 2015.
39. Mr. Dutcher testified that the renewal of this cultivation license frustrates the
Neighborhood Plan for the reasons stated by Ms. Miguel. Mr. Dutcher also cited Section
E.3 of the Plan, which was referred to by Ms. Miguel (paragraph 32 supra) concerning
the buffer that is needed between industrial and residential uses. Mr. Dutcher testified
that the Neighborhood Plan addresses mitigating odor from marijuana grow facilities, and
that the renewal of this cultivation license frustrates this aspect of the Neighborhood Plan.
Mr. Dutcher also cited a map on page 91 of the Plan, which is labelled “Traditional
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Residential Areas; Future Concept Land Uses and Areas of Change Map – Traditional
Residential Areas.” This is the same map that is included in Ms. Miguel’s Exhibit O-3.
This map clearly shows that the east side of the 4600 block of Brighton Boulevard (where
Starbuds is located) and the 4700 block of Brighton Boulevard are in an “area of change”
that should transition to mixed use, which would result in the needed buffer between
industrial and residential zone districts. Mr. Dutcher testified that marijuana cultivation
is completely inconsistent with a mixed use zone district.
40. Mr. Dutcher also testified about the Health Impact Assessment (“HIA”) that was part of
the neighborhood planning process. Mr. Dutcher believes that the renewal of this
cultivation license also frustrates the HIA. The Neighborhood Plan states that “An HIA
is a process to incorporate health considerations into a plan, project or policy….The
recommendations in the HIA were designed to inform and strengthen the
recommendations of the [Elyria and Swansea] neighborhood plans by adding community
health as a consideration for the future vision, design and development of the
neighborhoods.” (Plan, p. 75). The Neighborhood Plan also states that the HIA
recommendations have been integrated directly into the Plan (Plan, p. 2). The HIA
Strategies specifically include addressing the odor impacts from marijuana grow facilities
in Recommendation D5 of the Neighborhood Plan (paragraph 34 supra). The
Neighborhood Plan states: “nuisance odors do not necessarily cause direct toxic effects
but may affect wellbeing by reducing the desire to go outdoors and by causing stress.”
(Plan, p. 76). Mr. Dutcher also quoted from the Executive Summary of the HIA which
recognizes that nuisance odors can cause short term health effects such as watering eyes
and throat irritation, as well as longer term negative health effects where residents have a
limited ability to exercise outdoors.
41. Ms. Nancy Grandys-Jones, the Vice President of Globeville Civic Partners, an RNO, also
testified in opposition to the renewal application as a representative of the RNO. Ms.
Grandys-Jones testified that the boundaries of the RNO include part of the designated
neighborhood. She testified that Globeville and the Elyria-Swansea neighborhoods are
contiguous neighborhoods and that they worked together on the HIA. Ms. Grandys-Jones
testified that these neighborhood plans are designed to uplift the neighborhoods and that
it is important that businesses within the neighborhoods are aware of the neighborhood
plans, and operate consistently with the neighborhood plans, and adhere to the
recommendations of the neighborhood plans.
42. Mr. Paul Andrews testified in opposition to the renewal application. Mr. Andrews is the
President and CEO of the National Western Stock Show and Complex, which is located
within the designated neighborhood. Mr. Andrews testified that the renewal of the
cultivation license frustrates the Elyria and Swansea Neighborhood Plans for the reasons
stated by the previous witnesses. He described the goal of the Neighborhood Plan to
transform the neighborhood into a vibrant area with an eye toward the future. Mr.
Andrews cited four elements of the vision articulated in the Neighborhood Plan which are
frustrated by the renewal of this cultivation license. These elements of the vision include:
(i) showcase the history of Elyria and Swansea; (ii) cultivate Elyria and Swansea’s
identity; (iii) embrace Elyria and Swansea’s culture; and (iv) establish a balanced land
P a g e | 11
use strategy. (Plan, p. 10). Mr. Andrews testified that the cultivation facility interferes
with the neighborhood’s ability to achieve the vision in the Neighborhood Plan of
creating a unique and strong neighborhood.
43. On rebuttal, the Applicant presented testimony from Mr. Ruden who suggested that
Starbuds’ cultivation facility does not frustrate the neighborhood plan because
construction for the new National Western Center in the designated neighborhood will
not begin for another three to four years, and therefore, the new construction will not be
affected by a 12-month renewal of Starbuds’ retail marijuana cultivation license. Mr. T.J.
Joudeh, the building owner, testified that because the Applicant is complying with the I-
MX zoning code, it is not frustrating the neighborhood plan. The Applicant’s evidence is
not adequate to rebut all of the evidence presented by the opponents concerning the
frustration of the Neighborhood Plan by the continued existence of the retail marijuana
cultivation facility.
44. The Hearing Officer concludes that the opponents have established by a preponderance of
the evidence that the existence of the Starbuds retail marijuana cultivation facility
frustrates the implementation of the adopted Elyria and Swansea Neighborhood Plan in
all of the respects identified by the witnesses whose testimony is summarized above, and
therefore there is grounds to deny this renewal pursuant to paragraph a. of D.R.M.C.
section 6-214(a)(3).
Starbuds’ retail marijuana cultivation facility has negatively affected nearby properties and the
neighborhood in general
45. D.R.M.C. section 6-214(a)(3) provides another ground for non-renewal of a retail
marijuana cultivation license, as follows:
b. The existence of the retail marijuana cultivation facility on the licensed
premises has negatively affected nearby properties or the neighborhood in
general, including by way of example any adverse effects caused by
excessive noise, odors, vehicular traffic, or any negative effects on nearby
property values;
46. Ms. Miguel’s letter dated March 23, 2016, (Exhibit O-2), states that:
The odor coming from the facility is constant and pungent; this is
unacceptable for being adjacent to residential homes where people are not
comfortable opening their windows or going outside on their porches. The
smell is irritating to many neighbors that feel they may be allergic…
47. In addition, Ms. Miguel testified at the hearing that neighbors have complained that the
odor from Starbuds causes headaches, burning throat, and discourages nearby residents
from exercising outdoors. Ms. Miguel’s letter and her testimony also describe two busy
bus stops at the corner of 47th Avenue and Brighton Boulevard, with the Starbuds
location at this corner, and she testified that there have been many complaints from bus
P a g e | 12
riders about the odor. Ms. Miguel testified that she has personally smelled marijuana at
the Starbuds location and that it can usually be smelled within one block of the facility.
Ms. Miguel testified that the biggest impact of the odor has been on the residents on
Williams Street, some of whom have a backyard adjoining Starbuds. The zoning maps in
Exhibit O-3 and p. 91 of the Neighborhood Plan show single family and duplex
residences in the 4600 and 4700 blocks of Williams Street, which is directly east of
Starbuds, with some families having a backyard that adjoins the Starbuds property.
These zoning maps also show that the five blocks east of Starbuds, including Williams,
High, Race, Vine and Gaylord Streets, are entirely single family and duplex residences.
48. Mr. Dutcher also testified that he has personally smelled the odor from Starbuds, which is
excessive. Mr. Dutcher described the immediate area where Starbuds is located as a very
central area of the neighborhood, with busy pedestrian traffic and the two busy bus stops
on the corner where Starbuds is located. Thus, the odor is impacting many residents of
the neighborhood.
49. Mr. Leo Branstetter also testified in opposition to the renewal of the license. Mr.
Branstetter owns and resides in property at 4700 Brighton Boulevard, which is directly
across the street from Starbuds. Mr. Branstetter’s primary reason for opposing the
renewal of this license is based upon the Applicant’s lack of compliance with the
grandfathering provisions of D.R.M.C. section 6-214(a)(2). He also testified that all of
the problems that he described at the 2015 renewal hearing have continued or become
worse. At the previous hearing, Mr. Branstetter had testified that he experienced daily
problems with odors from Starbuds. He reiterated at this hearing that the problems with
odors are continuing.
50. Ms. Allison Anderson testified in opposition to the renewal of the license. Ms. Anderson
is a resident of the designated neighborhood, and she has owned her home since
December 2011. Ms. Anderson described the neighborhood as socially and economically
disadvantaged, with many residents who are low-income and immigrants. Ms. Anderson
testified that she walks by the Starbuds premises on a daily basis, and nearly every time
she smells the odor of marijuana, which she described as pungent. She testified that at
times the odor permeates beyond the Starbuds premises down the street.
51. On rebuttal, Mr. Ruden testified that he was not aware of any neighborhood complaints
regarding odor until he heard the witnesses at the April 25 hearing. This assertion is
contradicted by the finding in the February 2015 Recommended Decision that Mr.
Branstetter testified at the previous renewal hearing about daily problems with odor
coming from Starbuds. Further, Mr. Ruden testified that he is willing to install odor
mitigation measures, including carbon filtration, such as what he uses at his Boulder
cultivation facility. He also testified that he would be willing to enter into a Good
Neighbor Agreement to address odors. Mr. T.M. Joudeh, the building owner testified
that he visits the building periodically, and he has not noticed an “extreme pungent” odor.
52. Starbuds’ counsel has argued that the grounds for the non-renewal of this license only
involve the retail marijuana cultivation facility, and do not involve the retail marijuana
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store at the same location. Starbuds’ counsel also elicited testimony from Ms. Miguel,
Mr. Dutcher, and Ms. Anderson that they are unsure if the marijuana odor that is emitted
from 4690 Brighton Boulevard is caused by the retail marijuana store or by the retail
marijuana cultivation.
53. The Hearing Officer agrees that the negative effects on nearby properties or the
neighborhood which are contemplated by paragraph b. of D.R.M.C. section 6-214(a)(3)
are those which are attributable to the retail marijuana cultivation facility, rather than
strictly attributable to the retail marijuana store. Nevertheless, the Hearing Officer draws
the inference that the pungent and nuisance odor, which has been described by four
witnesses, comes from the marijuana cultivation facility rather than exclusively from the
retail marijuana store at 4690 Brighton Boulevard. In drawing this inference, the Hearing
Officer notes that the Neighborhood Plan has many references to the problem of nuisance
odors from marijuana cultivation facilities, but does not mention any problem regarding
nuisance odors from retail marijuana stores. Further, the Hearing Officer notes Mr.
Ruden’s testimony that he uses odor mitigation measures at his Boulder marijuana
cultivation facility.
54. Thus, the Hearing Officer concludes that the opponents have established by a
preponderance of the evidence that the existence of the Starbuds retail marijuana
cultivation facility has negatively affected nearby properties or the neighborhood in
general, including adverse effects caused by excessive odors, and therefore there is
grounds to deny this renewal pursuant to paragraph b. of D.R.M.C. section 6-214(a)(3).
55. The opposition witnesses also testified about parking problems occurring in the
neighborhood, which they attributed to the Starbuds’ premises at 4690 Brighton
Boulevard.
56. On rebuttal, Mr. Ruden testified that the cultivation facility is not open to the public, and
the Applicant does not offer any public tours of the cultivation facility. The Applicant
has one employee who has dual assignments of staffing the retail marijuana store and
then tending the marijuana plants when he is not otherwise busy at the store. Mr. Ruden
testified that once a month, additional employees are needed at the cultivation facility to
harvest plants. However, these employees carpool from another of the Applicant’s
warehouses to 4690 Brighton Boulevard in a single car.
57. With respect to the parking issue, the Hearing Officer concludes that any parking
problems observed by the opposition witnesses may, in fact, be attributable to the retail
marijuana store, but they have not been shown by a preponderance of the evidence to be
attributable to the cultivation facility, and therefore the grounds for denial under
paragraph b. of D.R.M.C. section 6-214(a)(3) do not involve parking or traffic problems.
58. There was also some reference by opposition witnesses to a negative impact on nearby
property values, but the Hearing Officer finds that there is not sufficient evidence about
this issue, and therefore the grounds for denial under paragraph b. of D.R.M.C. section 6-
214(a)(3) do not involve a negative effect on nearby property values.
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59. There was also some reference by opposition witnesses to an increase in crime rates
caused by the cultivation facility, which is a ground for denial under paragraph c. of
D.R.M.C. section 6-214(a)(3). Ms. Anderson testified that she had data showing 11 calls
to the Denver Police for the location of 4690 Brighton Boulevard between January 2015
and April 2016. However, this data does not show an increase in crime in the
surrounding neighborhood, nor was there any explanation of the circumstances for these
calls, either from the Denver Police Department or otherwise. Therefore, the Hearing
Officer finds that there is not sufficient evidence to show the grounds for denial under
paragraph c. of D.R.M.C. section 6-214(a)(3).
The continued existence of the retail marijuana cultivation facility will have a deleterious impact
on public health and the general welfare of the neighborhood
60. D.R.M.C. section 6-214(a)(3) provides another ground for non-renewal of a retail
marijuana cultivation license, as follows:
d. The continued existence of a licensed retail marijuana cultivation
facility in the subject location will have a deleterious impact on public
health, safety and the general welfare of the neighborhood or the city;
61. The Neighborhood Plan explains how nuisance odors can negatively impact the public
health and the general welfare of the neighborhood. The findings made in paragraphs 40,
46 and 47 above are also relevant to this ground for denial.
62. Mr. Andrews testified that the continued existence of the retail marijuana cultivation
facility has a negative impact on the general welfare of the neighborhood. He testified
that for the past 3 ½ years, the National Western Stock Show has worked with neighbors
and the City of Denver to develop the National Western Master Plan, which has been
approved by the City. Denver voters approved funding for the development of the
National Western Center through a ballot measure in November 2015. Mr. Andrews
testified that the National Western Center will be a world-class facility where local
neighbors and businesses work together to welcome local, national, and international
visitors. Mr. Andrews believes that the cultivation facility does not contribute to the
general welfare of the neighborhood, the National Western Center and its visitors, and
does not contribute to the goal of creating a neighborhood with an abundance and variety
of local businesses, which provides an environment where visitors and neighbors feel
safe and welcome. Mr. Andrews testified that the Stock Show is currently in Phase I of
the Master Plan which involves land acquisition, and that no new construction will occur
during the next 12 months. He also testified that there are 240 events scheduled in the
existing facility each year, and that the National Western Center has 1.3 million visitors
each year who are impacted by the continued existence of Starbuds’ retail marijuana
cultivation facility.
63. On rebuttal, Mr. Ruden testified that the Starbuds cultivation facility has no negative
impact on the public health, safety, or general welfare. Mr. Ruden testified that there are
P a g e | 15
home grows in the neighborhood that are bigger than the Starbuds cultivation facility.
However, Mr. Ruden also testified that Starbuds maintains 240 plants, which compares to
the authorized number of 6 plants per person or 12 plants per household in Denver for
home grows. Mr. Ruden also testified that he has made improvements to the property at
4690 Brighton Boulevard, which have benefitted the neighborhood, rather than having a
negative impact. Mr. T.J. Joudeh, the building owner also testified that he and Starbuds
have made improvements to the property which have benefitted the neighborhood.
64. The Applicant’s testimony is not sufficient to rebut the evidence presented by the
opposition concerning the negative impact of the retail marijuana cultivation facility on
the public health and general welfare of the neighborhood.
65. The Neighborhood Plan documents the significant challenges that have historically
affected the Elyria neighborhood, concerning environmental, health, economic, and
social issues. In response to these challenges, neighborhood stakeholders and City
representatives devoted considerable efforts to developing the Neighborhood Plan, with
the goal of having a vibrant future for the neighborhood. Neighborhood witnesses were
adamant in their opposition to the renewal of this license, and the Hearing Officer
concludes that the continued existence of this retail marijuana cultivation facility has a
negative impact on the general welfare of the neighborhood.
66. The Applicant also offered the testimony of Matt Hill, who is the Business Development
Manager for Quantum Concentrates which manufactures marijuana-infused products, and
is located at 4800 Brighton Boulevard in Denver. The Hearing Officer declines to
consider Mr. Hill’s testimony because he is not a business owner or manager of the entire
business, and therefore he does not meet the definition of a “party in interest” as set forth
in Section I.B.3.a.(3) of the Department’s Policies and Procedures Pertaining to Retail
Marijuana Licensing.
67. The Applicant also submitted Exhibit A-2, a packet of three pre-filed petitions in support
of the application for renewal of the retail marijuana cultivation license. Mr. Branstetter
reviewed each of the signatures in Exhibit A-2, and he identified 28 signatures which are
not valid because the persons signing the petition did not live in the designated
neighborhood, or they did not indicate that they were at least 21 years of age. The
Hearing Officer has done a similar review of the petitions, and sustains the objections to
28 signatures for these reasons. There are 23 remaining signatures in support of the
application, which is less than half of all of the signatures gathered. It is troubling that
Chris Yeager, an employee of the Applicant who obtained the signatures on two pages of
petitions, signed an affidavit under oath stating that every individual who signed the
petition is either a resident or the owner or manager of a business within the designated
neighborhood, when in fact this is clearly false. The Hearing Officer finds that the
remaining 23 signatures are entitled to little weight to rebut any of the evidence presented
by the opposition witnesses.
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Conclusions
68. The Hearing Officer concludes that Starbuds’ retail marijuana cultivation license is not
eligible for renewal pursuant to paragraph e. above of D.R.M.C. section 6-214(a)(3),
because it fails to meet one or more of the requirements of D.R.M.C. section 6-214(a)(2),
and in this case, there is a preponderance of evidence to show that Starbuds fails to meet
all three requirements of section 6-214(a)(2).
69. The Hearing Officer concludes that the opponents have established by a preponderance of
the evidence that the existence of the Starbuds retail marijuana cultivation facility
frustrates the implementation of the adopted Elyria and Swansea Neighborhood Plan, and
therefore there is grounds to deny this renewal pursuant to paragraph a. of D.R.M.C.
section 6-214(a)(3).
70. The Hearing Officer concludes that the opponents have established by a preponderance of
the evidence that the existence of the Starbuds retail marijuana cultivation facility has
negatively affected nearby properties or the neighborhood in general, including adverse
effects caused by excessive odors, and therefore there is grounds to deny this renewal
pursuant to paragraph b. of D.R.M.C. section 6-214(a)(3).
71. The Hearing Officer concludes that the opponents have established by a preponderance of
the evidence that the existence of the Starbuds retail marijuana cultivation facility will
have a deleterious impact on the public health and the general welfare of the
neighborhood or the city, and therefore there is grounds to deny this renewal pursuant to
paragraph d. of D.R.M.C. section 6-214(a)(3).
72. This Hearing Officer notes that a different conclusion was reached on these grounds for
denial by a different Hearing Officer in the Recommended Decision issued on February
24, 2015, concerning the previous annual renewal of Starbuds’ retail marijuana
cultivation license. (Exhibit O-1). However, the evidentiary record in the current
renewal hearing is very different than the evidence cited in the Recommended Decision
from February 2015. All but one of the witnesses whose testimony is summarized above
did not testify in the February 19, 2015, hearing, and the Neighborhood Plan (which did
not receive final approval until February 23, 2015) was not part of the evidentiary record
at the 2015 hearing, as it is in the current renewal hearing. Thus the 2015 Recommended
Decision does not affect the findings and conclusions in the current case.
ACCORDINGLY, having considered the evidence in its entirety, it is concluded by the weight
thereof that the Retail Marijuana Cultivation license issued to Colorado Health Consultants, LLC
doing business as Starbuds, for the premises known and designated as 4690 Brighton Boulevard,
Denver, Colorado, is not eligible for renewal in the current location. Therefore, it is
recommended that the license renewal be denied.
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RECOMMENDED this 10th day of May , 2016.
/s/ Suzanne A. Fasing
Suzanne A. Fasing
Hearing Officer
Any party in interest may file objections to the foregoing Recommended Decision within ten
(10) calendar days from the date above. All filings shall be made by email to the Records
Manager for the Department at [email protected] and
[email protected], copying the Assistant City Attorney,
[email protected] and any additional parties listed below.
If a party in interest does not have access to email, objections shall be submitted in writing to the
Director, Dept. of Excise and Licenses, 201 W. Colfax Ave., Dept. 206, Denver, CO 80202.
The Director of the Department of Excise and Licenses will issue a FINAL DECISION in this
matter following review and consideration of the Recommended Decision, and if applicable, any
objections.
CERTIFICATE OF SERVICE
The undersigned hereby states and certifies that one true copy of the foregoing Recommended
Decision was sent via email, on the date above, to the following:
Jim McTurnan, attorney for Starbuds
Colleen Morey, Assistant City Attorney
Records Manager, Dept. of Excise and Licenses
/s/ Suzanne A. Fasing
Suzanne A. Fasing
Hearing Officer
