Grower Steve Jenkins feeds marijuana plants at BotanaCare in Northglenn on Dec. 31, 2013. (Denver Post file)

Colorado Supreme Court sides with city on local controls for marijuana licensing

Case stemmed from dispensary chain Rocky Mountain High's unsuccessful attempt to enter the Northglenn market three years ago

Northglenn City Council had the right to deny a medical marijuana license because the new dispensary was deemed superfluous, the Colorado Supreme Court ruled Monday.

The state’s highest court ruled that Northglenn’s code language listing criteria such as “number, type, and availability” of existing medical marijuana centers when considering new applications were not “unconstitutionally vague.”

The decision, which reverses a district court ruling, serves as an affirmation for local control — for the discretion granted to cities to craft locally appropriate ordinances for licensing and regulating marijuana centers and related facilities, said Kevin Bommer, deputy director of the Colorado Municipal League, which filed an amicus brief in support of Northglenn.

Northglenn’s “number, type, and availability” code language for dispensary licensing was copied directly from the state statute and is a standard used by municipalities such as Breckenridge and Englewood, Bommer said in an email to The Cannabist.

“The whole premise behind the legislation in 2010 was keeping local control local on this issue. … While I cannot affirm how many municipalities adopted verbatim the ‘number, type, and availability’ standard into their codes, (I) would not be surprised to see the language in many — if not most municipalities that have authorized medical marijuana,” Bommer said.

The case before the Colorado Supreme Court stemmed from dispensary chain Rocky Mountain High’s unsuccessful attempt to enter the Northglenn market three years ago.

In November 2013, Rocky Mountain Retail Management LLC sought to open a location at 11455 Washington St. in Northglenn.

When the matter went before the city council in January 2014 — the same month sales of recreational marijuana first started in Colorado — Rocky Mountain High’s owners were asked to address whether there was a need for the shop, given that The Green Solution operated a medical dispensary a little more than a block away. Northglenn had three medical marijuana dispensaries operating at the time.

Representatives for Rocky Mountain High, which then-operated eight medical cannabis dispensaries in Colorado and another in New Jersey, stated their business would offer unique strains of marijuana, sell a superior product and serve as another option for consumers allegedly facing long wait times at neighboring dispensaries, according to council minutes and court records.

Council members voted 4-2 to deny the application. Colorado Supreme Court Justice Monica Marquez wrote in the opinion:

Specifically, the city council found that Rocky Mountain’s testimony regarding the uniqueness of its products, when weighed against contradictory testimony from representatives of existing marijuana businesses in the city, was insufficient to show that the number, type, and availability of medical marijuana outlets was not meeting Northglenn’s needs. It reasoned that evidence regarding what occurred at another facility within the first few months of selling both recreational and medical marijuana was not dispositive of need, nor did it establish that the number, type, and availability of medical marijuana outlets was insufficient.

Rocky Mountain High brought the matter before the Adams County District Court, which ruled that the city council applied an improper legal standard, the denial was arbitrary and not based on substantial evidence, and the code was “unconstitutionally vague.” After the city challenged that ruling, the appeals court referred the matter to the Colorado Supreme Court.

Corey Hoffman, Northglenn’s city attorney, said the city was “certainly pleased” with the supreme court’s ruling.

Officials for Rocky Mountain High could not be reached for comment.