ALAMOSA — After the first reading on Dec. 18 Alamosa City Council meeting, there will be a public hearing and second reading at 7 tonight at City Hall on an ordinance declaring unreasonable odors to be nuisances and providing for the prohibition and abatement of them.

Council voted unanimously for the second reading during its last meeting, but Councilor Michael Carson raised concerns about the odors ordinance.

City Attorney Erich Schwiesow said while creating a section within the section with marijuana grows, Ordinance 30-2019, the city fielded a few questions that meant they could still grow hemp outdoors and the answer is, yes. But there is very little difference in the way a hemp plant looks and a hemp plant smells, as it’s the way a marijuana plant looks and a marijuana plant smells, which leads to the question: “Are people going to be growing marijuana and claiming that it is hemp?”

Schwiesow said if people grew hemp and that causes odor problems, which was like when council 

was concerned about with marijuana when it worked on a marijuana ordinance.

“We had provisions in that ordinance that address odors that might migrate off of the property and we have no similar provisions for anything else,” Schwiesow said. “And, so what this ordinance does is kind of fill that gap and it goes beyond just marijuana or hemp to talk about (not only) offensive odors but about odors in general, so you can have a dead animal in your yard or a dead skunk or something that doesn’t get taken care of that also creates odor problems.”

In fact in municipal court, a dispute relating to someone who was doing some furnisher refinishing underneath their apartment neighbor’s window and that caused all kinds of disturbances, Schwiesow said. So it’s more broad than merely the hemp/marijuana question, but there is not anything in the current code to deal with that.

This ordinance defines an offensive odor as both being “unreasonably noxious, unpleasant or strong to a person of ordinary sensibilities” and it also has to continue for a period of access of 30 minutes and continuing off the property owned by the person who is generating this odor, Schwiesow said. So, that is sort of the way the ordinance is designed to function. Exemptions are made for temporary orders relating to rodeos, stock shows, tarring operations and other kinds of things, which has been known to happen and can generate strong odors, but that’s just part of life and also does not apply in agricultural zones.

He added that the ordinance specifies in both agricultural zones and industrial zones the threshold for what might be an offensive odor is significantly higher than what it would be in a residential zone.

Carson interjected, asking who initiated this, first of all? How long ago did it get initiated? “Because I have never seen anything about this,” Carson said. “Personally, I think this is a huge overreach, and I don’t have enough information to make a good, conscience vote on this, but I can see where they’re tied, but you’d have to get pretty specific and I think personally this … I’d personally have to look at it more because there are issues where you have huge offensive odors all over town that can’t be controlled.

“I mean there are issues that, yeah, we deal with that all of the time and you can’t really shut them down because they have an offensive odor. So, I just want to know when this came about, how long it has been on the radar and I apologize for missing this. Because I really did miss this completely.”

Schwiesow said it hasn’t been on council’s radar.

“So, the initiation, as I was talking about, came from questions that staff started getting whether they can grow hemp, even outdoors, even though they couldn’t grow marijuana outdoors,” Schwiesow said. “And the concern that I had was, yeah, we can deal with marijuana odors outdoors because we had an ordinance that addressed it. Now, we don’t. Because now we don’t address growing marijuana outdoors other than to say you don’t do it. Hemp and marijuana, I haven’t seen a lot of it outdoors in Colorado or Alamosa, but people are getting creative with growing that kind of stuff, so that’s the concern.”

Carson said he would like to hear Alamosa Police Chief Kenny Anderson’s opinion about enforcing the odor ordinance.

Alamosa City Manager Heather Brooks said none of Alamosa still doesn’t have anything in its ordinances concerning a smell that is a nuisance.

“We have no way of addressing that and so that is what the issue is,” Brooks said. “It just happened to be connected from a thought process to some of that other stuff that was going on, but you can take the marijuana out, you can take the hemp out, but you can have a dead animal in someone’s backyard or they can have rubbish in their backyard or they can have something else that is creating a nuisance for their neighbors and without something like this, we have no way of addressing that.”

Anderson said he completely agreed with Brooks.

“Obviously, the calls are rare that we get, but we have an obligation to the community that we have to follow-up on, and currently we don’t have anything that we can do,” Anderson said. “So, that’s why it’s being brought to your attention.

Carson said the odor issue is valid.

“I also think that we should start looking at if we’re going to address nuisances as this, I think we need to start looking at right of ways and some of the nuisances that that’s causing — just in general,” Carson said. “I feel like this is kind of an overreach in a general sense because it’s easy to generalize stuff and this is one of those things that unless you’re pretty specific about those odors, it can be used by an angry neighbor against another angry neighbor, so let’s put it that way.

“So again, I haven’t read as much as I’d like to on it, so I just wanted to know how quickly or when this (came) up. It’s interesting.

Brooks said the other thing that she would add to that concern — and she thinks it’s a very valid concern because sometimes there are neighbors who do not agree and they like to use the police to be the go-between sometimes and sometimes it’s loud music, it’s loud noises, those types of things that could be something related to this.

Brooks said it also could be other items, weeds, those types of things, so officers have discretion in regards to how they’re going to handle those complaints. So if they don’t feel as though it’s legitimate and they feel like it’s just one neighbor trying to get at another neighbor, they’ll handle that appropriately.

“They’re not forced to write a citation just because someone is complaining,” Brooks said. “They’re going to use their judgment, they’re going to look at the language, that Erich reviewed, that they feel like this is a legitimate type of nuisance and not get caught up in neighbors going at it each other.”

Brooks asked Anderson, “Am I correct in that, Chief?”

Anderson replied: “Correct.”

Councilor Kristina Daniel said no smells are listed in council’s nuisance ordinance and that’s why there is a need for a whole new one.

Said Schwiesow in response to Daniel: “I don’t think you’re recalling that conversation correctly because when we wrote it into the new ordinance, we wrote into the one that got repealed by the citizens’ initiative, so, we had in that prior code that you could grow marijuana outdoors so long as it is an enclosed area and so long as long as it does not migrate past your property boundary.”

Brooks said it is in a separate part of the code, not in our general nuisance area, so when that part of the code went away with the election — because one just can’t grow it —that’s when it came to light that there is not anything related to an odor nuisance.

Councilor Charlie Griego then made the motion to pass on first reading Ordinance No. 30—20.19 for setting for a public hearing on Jan. 15.

Carson said: “The first reading we’re giving examples of offensive odors, but this is not binding. Said Carson to Anderson: “Have you read through this?”

The Chief replied, “Part of it, yes.”

Carson said: “I just want to know. Is this is specific or is this just examples, is this what we’re binding?”

Schwiesow said the definition of an offensive odor doesn’t incorporate those examples. The examples indicate things that generally can be offensive odors to a person of reasonable sensibility, but the definition says …

Carson interjected and said that’s my concern.

“There are people with very reasonable allergies to perfumes, to different kinds of smells, and so it is a valid concern, but it opens up a whole can of worms,” he added.

Schwiesow said that is why it is to persons of “ordinary sensibility. So, if you’re a thin-skinned person with very strong …”

Schwiesow added: “We’re getting into a place where … then you are not ordinary.”

Carson said: “You can complain, you can be offended by anything nowadays.

“And the thing is if I’m offended by (something) and you’re not calling me ordinary, then, I can be offended by your smell. And that’s the thing. …”

Brooks said, “Being offended still doesn’t meet the definition.”

Carson replied: “Well …”

Brooks said: “Being offended doesn’t mean you’re reasonably offended; I mean, it’s … so yes, anyone can be offended, anyone can actually have a thin-skin and certain things get to them, but that standard is the reasonable person.”

Schwiesow said it is the same standard that is in the noise ordinance, which is unreasonable noise to a person of ordinary sensibility.

“Now, you may be a person who hates music being played at 4 in the afternoon,” Schwiesow said. “When you call up and make a complaint to the police, they are going to come by and say, ‘It’s 4 in the afternoon and they’re having a yard party. Now, deal with it.’ A person of ordinary sensibility isn’t going to have a problem with it.”