Local Licensing Authority Agenda and Packet 2014 09 22

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Neither the LMC nor the applicable state statutes provide a specific rule as to the point in time the school exists such that the separation requirements apply. LMC Chapter 5.11 provides some guidance. Section 5.11.080.D addresses how the separation requirements are to be calculated. It states: "The distances ... shall be computed by direct measurement in a straight line from the nearest property line of the land used for the [school] purposes ... to the nearest portion of the building or unit in which the retail marijuana establishment is located." (Emphasis added). Per this section, the land must be being "used" for a school. Merriam - Webster defines "use" to include "to put into action or service" and "the legal enjoyment of property that consists in its employment, occupation, or exercise." In accordance with this definition, the Authority Attorney's opinion is that the school user must take substantial actions or steps to put the land to a school use before the land is being "used" for purposes of the separation requirements. This action requires more than receipt of an approved PUD or SRU allowing for the school use. An approved PUD or SRU for a school site does not necessarily mean the school will be built. This interpretation is supported by the definition of public or private elementary, middle, junior high school in LMC Section 5.11.020 to include "public or private elementary, middle, junior high, or high school sites designated as a use permitted by right on a planned community general development plan that has been granted approval by the City Council on or before the date an application for a retail marijuana establishment license is received by the City." The definition does not extend to preschool sites designated on approved PUD or SRU plans. As to what constitutes a substantial action or step in converting the site to a school use, the closest analogy in law is that of common law vested property rights. Under Colorado law, a landowner does not obtain a constitutionally vested right by the mere issuance of a building permit; rather, the landowner must take substantial steps to exercise its rights in reliance on the permit. Cline v. City of Boulder, 168 Colo. 112 (Colo. 1969). Substantial steps include expending substantial sums in reliance on the permit. Gramiger v. County of Pitkin, 794 P.2d 1045, 1048 (Colo. App. 1989). While not directly on point, the State's Liquor Rules also provide guidance. Regulation 47 -326 provides that the separation requirements (500 feet) between schools and liquor establishments do not apply to "any liquor license in effect and actively doing business before any principal campus has been constructed within the prohibited area." (Emphasis added). Therefore, as to liquor establishments, the school must actually be constructed before the separation requirements apply. With respect to CPM's application, as of September 17, no building permit has been issued to the Goddard School and there is no evidence that Goddard has expended sums in reliance on a building permit. As such, it is our opinion that CPM's change in location application should not be denied on the basis of the school separation requirements. RECOMMENDATION: Authority review the application and approve the change of location. centers) includes the same separation requirements for public and private preschools as Section 5.11.080. In addition, the relocation provisions are similar.