Two recent cases in which proposals for new recreational marijuana stores were rebuffed by local officials have raised questions about what constitutes a government promise and whether regulations are applied consistently in the new world of legal weed.
A pair of businessmen last month took legal action against Denver and Wheat Ridge over respective decisions the cities made upending their plans to open new pot shops.
In Wheat Ridge, businessman Babak Behzadzadeh made a demand in early April for a $250,000 settlement from the city. The city denied his request, setting the stage for a possible lawsuit.
In Denver, applicant Ross Vaisman is asking a judge to vacate the denial from the Department of Excise and Licenses— just the agency’s ninth since December 2013 — so that he can move ahead with his shop, on which he had spent close to $1 million in renovations.
The city has filed a motion to dismiss, and a ruling may not come for weeks. In the meantime, Vaisman’s building has been boarded up.
In both cases, the men accuse government officials of leading them on with assurances that their plans complied with all city rules only to have the rug pulled out from under them at the last moment.
An excise and licenses inspector informed Vaisman that the site of his store, 4801 W. Colfax Ave., was safely outside of the city’s 1,000-foot buffer for schools, day care centers and drug treatment facilities. A hearing officer from the department recommended the application be approved.
But in March, the director denied approval for Vaisman’s project after much of the neighborhood objected to it.
“He played by the rules and made a large investment in the community, and the city wantonly disallowed his plan,” said Vaisman’s attorney, Brian Vicente. “He sort of sank his savings into this with the city’s blessing.”
In Wheat Ridge, Behzad zadeh said the $700,000 he put into buying and preparing a site for a shop went up in smoke when the City Council in late January passed a measure capping the number of stores in the city at five. Behzadzadeh’s store would have been the sixth.
He insists that city staff, all along, had assured him that his project was good to go. Then the neighbors rose up, forcing the council’s hand.
His attorney, Jeff Gard, said his client may sue the city on the grounds of “promissory estoppel” — that Wheat Ridge’s broken promise cost him his investment.
In both cases, city officials say no promises were ever made.
Wheat Ridge Councilman Tim Fitzgerald said earlier this year that the planning department was simply letting Behzadzadeh know what his options were with the property ahead of filing a formal application with the city, which he hadn’t yet done.
“It’s not a broken promise — he wasn’t promised anything,” said Fitzgerald, noting that political realities can interfere with a developer’s plans.
Stacie Loucks, director of the Denver Department of Excise and Licenses, said despite the assurances Vaisman had received as the process moved forward, nothing is final until her ruling.
She denied the application based on “a preponderance of the evidence” showing a pot shop in that stretch of West Colfax would “adversely impact the health, welfare or public safety” of the neighborhood, she said.
“Because so many neighbors and neighborhood businesses expressed concern, I had to look into the issues they raised,” she said.
She said that since most prime locations for pot operations have been claimed, future forays into opening shops could see significant pushback from neighbors and others. And it will be up to her to make the call, she said, using the discretion City Council gave her.
“Yes, she has discretion, but it should have a basis in fact — not wild and emotional speculation,” Vicente said. “The director acted outside the bounds of reason and law.”
There are 110 recreational pot stores operating in Denver. Statewide, there are more than 320 recreational shops.
Ephraim Bulow, a West Colfax resident and attorney who helped lead the legal battle against Vaisman’s plan, said the applicant should have done more investigation.
“I’m not sure that if I was going to sink a lot of money that I wouldn’t go to the synagogue and the battered women’s shelter and ask how they felt about it,” Bulow said. “If you are a guy with PTSD and a drug addiction, do you have to go to a bus stop that is right in front of a retail marijuana store? Why put a stumbling block in front of someone who is trying to get their life together?”
John Aguilar: 303-954-1695, jaguilar@denverpost.com or twitter.com/abuvthefold
Recreational pot shop denials in Denver
Dec. 18, 2013: Denco, 4047 Tejon St. (Too close to Smedley Elementary)
Dec. 18, 2013: The Retreat, 2420 S. Colorado Blvd. (Too close to three schools)
Dec. 18, 2013: BGOOD Ventures, 80 S. Pennsylvania St. (Too close to Byers School)
Dec. 18, 2013: Cannabis for Health, 285 S. Pearl St. (Too close to Byers School)
Feb. 21, 2014: Sense of Healing, 1005 Federal Blvd. (Too close to two schools)
March 27, 2014: Pink House Mile High, 2008 Federal Blvd. (Too close to Family Star Montessori)
March 27, 2014: Purple Dragon, 2243 Federal Blvd. (Too close to Family Star Montessori)
June 17: Sweet Leaf, 4379 Tejon St. (Too close to Smedley Elementary)
Source: Denver Department of Excise and Licenses
