The Otero County Planning Commission held a Use by Review hearing Monday regarding a request by Keith Wiggins for a special permit to grow hemp in a field along County Road LL5 in Fowler.
A special permit is required because the land is located in an industrial zone.
Wiggins owns the field and currently dries hemp in an adjacent warehouse, but some Fowler residents in attendance at the hearing said they are against hemp being planted in the field. Their primary concern is the smell generated from the plant."
Public Works official Hanna Fasick said that in 2017 a family had received a permit to grow hemp in greenhouses on the same lot, but their special permit was revoked after one year because they failed to meet certain stipulations. Fasick did not provide details of those stipulations.
Nichols said the Colorado Department of Agriculture is the regulatory agency for hemp, and the county must honor hemp as an agriculture product because of state statute. Nichols stressed that Otero County does not have the power to regulate hemp.
Wiggins said he currently uses - and would continue to use - his warehouse to dry hemp "12 months out of the year," and contended that preventing hemp from being grown in the field would not alleviate the smell of his drying hemp because the plants produce different odors when they are growing versus when they are drying or dried.
Fowler residents Susan Morris and Kevin Hardy attended the land use meeting to protest Wiggins' request.
Morris presented a letter from her attorney to Nichols at the meeting for the record, although Nichols did not read it aloud because Morris was in attendance. Nichols gave Morris the floor to speak for herself.
Morris lives directly next to the lot in question, and about 80 percent of the buildings in that area are homes. Because of that, Morris said she views it as a residential neighborhood.
"I drove all around Rocky Ford tonight," said Morris. "I didn't see a single hemp field next to the houses. I didn't. There's not one."
Morris said that tomatoes hadn't been grown in the lot since the 90s. She questioned how the property could still be applicable to a non-conforming use and said if that's the case, she and others living in the area essentially have no rights as residents.
Nichols explained that non-conforming use allows for a piece of land to be used for a purpose otherwise barred in a specific zone, such as an industrial zone, if that piece of land was used for that purpose before the current land code was adopted.
"Let's say that somebody's putting a waste dump across the street from my house. ... I can call the State of Colorado and they would come and regulate the odors coming from that," said Morris.
"But because this is ag, they consider that you're doing it out in an agricultural zone, therefore you don't need an air permit.
"I have no recourse for anything. I think it's really important that when you guys look at this. ... We had an attorney look at it, who said that if the county does elect to move forward with this, they're putting themselves at risk of lawsuits."
Morris added that she'd offered to purchase the lot from Wiggins.
"Would you object if I grew tomatoes there?" Wiggins asked Morris.
"No," replied Morris.
"But if it's hemp?" asked Wiggins.
"Because of the odor" replied Morris. "It's so strong. ... It gives us headaches, it makes us sick."
The Town of Fowler has an ordinance that requires hemp processors and storage facilities to use carbon filtration to eliminate the plant's odor, said Morris.
"We're bordering Fowler with this, and you guys are not honoring their regulations. I think that also creates another issue that's worthwhile to think about," she said.
"It's just going to be offensive," added Fowler resident Kevin Hardy. "It's going to be very difficult to enjoy property, to be able to spend time outside, simply because it's there.
"I realize that that may be a cosmetic issue, but for us who live there, it's a very real issue. It will dramatically and negatively affect our ability to be able to live at our property."
Hardy also said there are statutory aspects to consider if the hemp odor is a nuisance.
"I believe that these people may have the drying of the hemp confused with what it's going to smell like when it's growing," Wiggins said.
"Like I said, the plants will be there for four months out of the year, and probably the last week of the harvest is when they'll be the driest. But we're going to be using the warehouse for drying anyhow, so I don't know what difference it makes."
Wiggins currently grows hemp plants in the basement of his home, he told the county planning commission. He said he uses a regular air conditioning system and has had no problems with an offensive odor from the plants.
The County Planning Commission ultimately voted to recommend that the Otero County Board of Commissioners - which will make the final decision - deny Wiggins' request for a special use permit to grow hemp in an industrial zone.
The BOCC is currently scheduled to rule on Wiggins' request at their meeting Monday, scheduled for 1:30 p.m. The meeting is open to the public.