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Marijuana dispensary approved by Cortez City Council

After lawsuit, second hearing, NuVue Pharma can set up shop in Cortez

Nearly two years after denying a retail marijuana license for NuVue Pharma LLC, the Cortez City Council on Tuesday approved the store’s request to open.

The approval came after months of litigation, a local judge’s order that remanded the matter to the City Council and a lengthy discussion Tuesday night about whether the proposed dispensary met distance requirements set by the city and state. Ultimately, the council determined NuVue met the necessary conditions and should be able to open.

The approval was 6-0. Councilor Sue Betts recused herself because of a connection to a NuVue attorney.

NuVue Pharma LLC, based in Pueblo, applied to open a marijuana dispensary in Cortez in summer 2018, looking to set up shop at 503 Patton St., across U.S. Highway 160 near Denny Lake.

Initially, the city determined that the dispensary met distance requirements set by the city and state, and the company’s owner, Dr. Malik Hasan, passed a background check. By law, marijuana shops must be at least 1,500 feet from a school, day care center or dispensary.

Several residents opposed the dispensary in letters to the city and at a public hearing on Sept. 11, 2018. Some said Cortez already had too many marijuana shops.

At that hearing, the council unanimously voted to deny the license, later saying their rationale for denial had to do with neighborhood concerns, and that most other marijuana dispensaries are in more commercial areas of town.

In November 2018, NuVue Pharma filed a complaint for judicial review, alleging that the council exercised “arbitrary and capricious abuse of discretion” in its denial. NuVue also claimed that opponents of the motion didn’t live close enough to the proposed location to be directly affected and that the concerns were ungrounded.

And after about a year of litigation, the court agreed with the marijuana company, ruling Nov. 7, 2019, that the council’s denial was a “misapplication” of the Cortez Retail Marijuana Code, adopted in 2014. The council was directed to grant NuVue a new hearing.

In the reversal order, Judge Todd Plewe concluded that the city erred in allowing people from outside the “neighborhood under consideration” to speak at the public hearing, and that the city’s Retail Marijuana Code did not define “neighborhood under consideration.”

Since then, the city has amended the code to meet the judge’s order: The “neighborhood” is now defined as the city of Cortez.

The rescheduled hearing was initially set for February but was delayed since a City Council quorum was not present. It was pushed once again because of the COVID-19 pandemic.

In February and March, though, Cortez Police Lt. Andy Brock was directed to reevaluate the safest route from GOAL Academy to the proposed marijuana shop location. Previously, the city had measured the distance as beginning at GOAL Academy (2531 E. Main St., adjacent to the Hunan Chinese restaurant), traveling west up to the intersection of Colorado Highway 145 and U.S. Highway 160, crossing 160 via the crosswalk on the westernmost side of the intersection, and then heading east to 503 Patton St. Colorado 145 does not have a crosswalk at that intersection.

This measured distance would be 1,680 feet.

But Brock stated in his evaluation that the safest route was walking directly across U.S. Highway 160 from Lakeside Drive. If this was the case, the distance would be 865 feet — meaning the shop wouldn’t be in compliance with the state’s distance requirement of 1,500 feet away from a school.

Although this alternative requires crossing without a crosswalk, jaywalking is not illegal by city or state law, Brock said, and it would avoid the traffic of the intersection at Colorado 145 and U.S. 160.

“In summary, and in my opinion, it would be safer to cross at Lakeside St.,” Brock wrote in his report. “I say this because of the congestion and the difficulty crossing between the two islands at the Main/Hwy. 160 intersection.”

According to the city code: “Said distance shall be computed by direct measurement from the nearest property line of the land used for nonlicensee purposes to the main entry of the building in which medical marijuana business occurs, using a route of direct pedestrian access measured as a person would walk safely and properly without trespassing, with right angles at crossings with the observance of traffic regulations and lights.”

To meet Plewe’s order, the city had to conduct the hearing in a “quasi-judicial” manner, which was redefined by City Attorney Mike Green at the council’s Feb. 25 meeting. It operated similarly to a court hearing, with witnesses sworn in by the city clerk, before giving testimony and answering questions from the attorneys from both sides.

The hearing focused on the distance regulations and on whether or not GOAL Academy constituted a school.

“It is NuVue’s position that the testimony of any interested person must be focused on distance,” NuVue attorney Greg Whitehair said at the hearing’s onset. “It can be talking about the school, whether it’s a school, it can talk about the distance from the school, and the safety of the paths.” Testimony could not focus on whether or not cannabis was a good idea, or if there were too many dispensaries in Cortez, he said.

Witnesses from both the city and NuVue testified. The city presented evidence that the road crossing at Lakeside Drive was safest, citing reports showing fewer accidents there.

“You’ve got cars coming in every direction, and if you’re crossing from west to east, you’ve got cars that are coming in behind you that you have to watch for,” Brock said of the 145-160 intersection, while being questioned by City Attorney Mike Green.

However, Whitehair argued that the crosswalk at the intersection of Colorado 145 and U.S. 160 was the safest route, with various road and traffic experts testifying this was the case.

“Safe transportation systems function on order and established rules and practices,” Jim Horn, an engineer with SEH Inc., wrote in a report. “Driver expectation is that pedestrians cross at safe and well-marked intersections. A signal-controlled intersection such as US 160/SH 145 is the preferred location for pedestrians to cross, as vehicles are stopped for the pedestrian.”

Another issue arose over whether GOAL Academy was technically a school. While GOAL Academy serves as an alternative, online high school, enrolled students do show up periodically for tutoring and support.

The city held that GOAL Academy is a school, presenting a statement from a school accreditor, along with a few local news articles. Cortez Associate Planner Neva Connolly testified that it was a “public charter school” under the city’s land use code.

“The land use code defines school as ‘school means the use of a site for instructional purposes on an elementary or secondary level approved under the regulations of the state,’” Connolly said.

Whitehair, though, questioned the timing of the permit’s issuance, which came after the lawsuit was filed, and added that defining GOAL as a “school” could open the city up to future issues with other online institutions.

“The idea of a school being a physical place and space for students really has to be what’s intended,” Whitehair said.

Two community members participated in the public hearing: One man asked staff for clarification regarding student activity at GOAL Academy and on the distance measurements, and another opposed the shop’s opening, agreeing that the Lakeside crossing was safest and adding that there are already several other marijuana stores in Cortez, and that marijuana cultivation drains water resources. Whitehair, though, asked that the latter testimony be stricken from the record since it was unrelated to distance.

A few councilors asked some questions of witnesses while testimony was being given, but other than that, there wasn’t much council discussion on the licensing.

Near the conclusion of the four-hour hearing, Green asked councilors a series of questions regarding whether or not NuVue met the licensing requirements set by the city’s Retail Marijuana Code. The councilors assented to all the points, and then unanimously approved the license.