{"id":91425,"date":"2019-12-05T20:38:07","date_gmt":"2019-12-05T20:38:07","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/judge-reverses-cortezs-denial-of-marijuana-dispensary\/"},"modified":"2019-12-05T20:38:07","modified_gmt":"2019-12-05T20:38:07","slug":"judge-reverses-cortezs-denial-of-marijuana-dispensary","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/judge-reverses-cortezs-denial-of-marijuana-dispensary\/","title":{"rendered":"Judge reverses Cortez\u2019s denial of marijuana dispensary"},"content":{"rendered":"\n

\"After
After a year of litigation, the NuVue Pharma matter has been remanded to the Cortez City Council.<\/span>The Journal file<\/span><\/figcaption><\/figure>\n<\/p>

The 22nd District Court has reversed the Cortez City Council\u2019s denial of a marijuana retailer, meaning it will be granted another public hearing and a chance to open its doors.<\/p>\n

NuVue Pharma LLC<\/a> approached the council in 2018 for permission to open a shop on the east side of Cortez, but its application was denied. NuVue Pharma sued the city, alleging the denial was \u201carbitrary\u201d and \u201ccapricious,\u201d and after about 12 months of litigation proceedings, Judge Todd Plewe remanded the decision to the council in November.<\/p>\n

\u201cIt is hereby ordered that this matter is remanded to Defendant \u2013 City Council in and for the City of Cortez with directions to vacate the \u2018Findings and Decision Regarding the Application of NuVue Pharma LLC for a Retail Marijuana Store at 503 Patton Street\u2019 and to grant Plaintiff a new hearing to be held in accordance with applicable law as directed in this Order,\u201d Plewe wrote in the ruling.<\/p>\n

NuVue Pharma LLC is a Pueblo-based company that applied to open a marijuana dispensary in Cortez in the summer of 2018, looking to set up shop at 503 Patton St., across U.S. Highway 160 from Denny Park.<\/p>\n

The dispensary met distance requirements set by the city and state, and the company\u2019s owner, Dr. Malik Hasan, passed a background check, according to the Sept. 11 meeting minutes. By law, marijuana shops must be located at least 1,500 feet from a school, day care center or other dispensary.<\/p>\n

But several community members opposed the dispensary, voicing concerns in letters to the city and at a public hearing on Sept. 11, 2018. Some opponents to the dispensary said Cortez already had too many marijuana shops.<\/p>\n

At that September public hearing, the City Council unanimously voted to deny NuVue\u2019s proposed retail marijuana license.<\/p>\n

And at a subsequent meeting on Oct. 9, 2018, the council again denied the license, with a clarification to the motion to explain the rationale for the denial. Councilor Jill Carlson moved to include the three factors the council was allowed to consider as part of the public hearing testimony: reasonable requirements of the neighborhood, desires of the adult inhabitants and the character of the applicant.<\/p>\n

Councilors said that their primary reasons for denial had to do with neighborhood concerns. Mayor Karen Sheek noted that most other marijuana dispensaries are in more commercial areas of town.<\/p>\n

On Nov. 8, 2018, NuVue Pharma filed a complaint<\/a> for judicial review, alleging that the council exercised \u201carbitrary and capricious abuse of discretion\u201d in its denial, that the residents opposing the motion didn\u2019t live close enough to the proposed location to be directly affected, and that the concerns were ungrounded.<\/p>\n

The Cortez City Council and each individual councilor were named as defendants.<\/p>\n

After about a year of litigation proceedings, the court ruled on Nov. 7 that the council\u2019s denial was a \u201cmisapplication\u201d of the Cortez Retail Marijuana Code, adopted in 2014.<\/p>\n

In his court order conclusion, Plewe found issue with the three-pronged rationale for the decision. He wrote that denying the application based on he \u201ccharacter of the applicant\u201d was an \u201cabuse of discretion\u201d and \u201cunsupported,\u201d and that the other two factors (\u201creasonable requirements of the neighborhood\u201d and \u201cdesires of the adult inhabitants\u201d) shouldn\u2019t be a consideration when looking at approving or denying an application \u2013 at least not under the city\u2019s current retail marijuana code.<\/p>\n

And by allowing people to speak at the public hearing who were not residents or business owners of the \u201cneighborhood under consideration,\u201d the council did not correctly interpret the code, Plewe wrote.<\/p>\n

The code prohibits retail marijuana establishments in residentially zoned areas and sets strict limits on their proximity to schools and other dispensaries, to avoid a \u201ccluster of retail marijuana businesses,\u201d according to the court order. It does not, however, set a limit on the number of dispensaries in areas of Cortez zoned as \u201cCentral Business District\u201d or \u201cCommercial Highway District.\u201d<\/p>\n

Since the Retail Marijuana Code doesn\u2019t specify what a \u201cneighborhood under consideration\u201d is, Plewe added that the city should determine what that means for each retail marijuana application before proceeding.<\/p>\n

J. Greg Whitehair, one of NuVue\u2019s attorneys, said the corporation is in talks with the city and expects the issue will return to the council in February, when the council next has an opening on its agenda.<\/p>\n

Whitehair has requested some clarification from the court, though, because of his concerns that the council may seek to change its Retail Marijuana Code before NuVue has a chance to bring its application back for approval.<\/p>\n

\u201cThere\u2019s strong case law that says cities can\u2019t just change the laws in the middle,\u201d he said.<\/p>\n

ealvero@the-journal.com<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

remands NuVue Pharma issue to City Council<\/p>\n","protected":false},"author":1,"featured_media":91426,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[],"tags":[21,28,445,1610,500],"naviga_topic":[],"class_list":["post-91425","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-cortez","tag-headlines","tag-newsletter-lead","tag-recreational-marijuana","tag-retail"],"acf":[],"author_name":"dh_admin","_links":{"self":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/91425","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/comments?post=91425"}],"version-history":[{"count":0,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/91425\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media\/91426"}],"wp:attachment":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media?parent=91425"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/categories?post=91425"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/tags?post=91425"},{"taxonomy":"naviga_topic","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/naviga_topic?post=91425"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}