June 11, 2015
Medford Room, City Hall
411 W. 8th Street, Medford
1. Time, Place, Manner Regulations – Medical Marijuana Facilities
June 11, 2015
Medford Room, City Hall
411 W. 8th
The Medford City Council Study Session was called to order at 6:00 p.m. in the Medford Room of the Medford City Hall on the above date with the following members and staff present.
Mayor Gary Wheeler; Councilmembers Clay Bearnson, Daniel Bunn, Chris Corcoran, Dick Gordon, Tim Jackle, Eli Matthews, Kevin Stine and Michael Zarosinski
City Manager Pro Tem Bill Hoke; City Attorney Lori Cooper; Deputy City Attorney Kevin McConnell; Lieutenant Kevin Walruff; City Recorder Glenda Wilson
Time, Place and Manner Regulations – Medical Marijuana Facilities
Mayor Wheeler opened the meeting and noted that Deputy City Attorney Kevin McConnell would begin discussing the evening’s topic.
Mr. McConnell spoke regarding two pending ordinances regarding marijuana. One is the nuisance odor ordinance and the other requires enclosures for marijuana grows. He requested Council direction regarding whether to proceed with the proposed ordinances.
Mr. McConnell believes that cities will ultimately have the ability to impose reasonable time, place and manner regulations on all medical and retail marijuana licensees. He recommended the Planning Commission create a proposed zone text amendment for Council’s review by fall or winter. If the moratorium were lifted, the zone text amendment would ensure the Council’s preferred time, place and manner regulations.
Councilmember Bunn questioned whether this would apply to state licensees and OMMP cardholders; Mr. McConnell responded his understanding was that state law would enable cities to impose reasonable restrictions for both medical and retail marijuana. It also appeared the state was going to regulate laboratory, safety, and testing in addition to requiring licenses for marijuana handlers. The big issue was the ability for cities to ban licensed establishments for medical and retail marijuana.
House Bill 3400 (HB 3400) became a global marijuana bill to streamline the marijuana process. HB 3400 has two relevant amendments – HB 3400-9 and HB 3400-10. There is also House Bill 2041-2, which creates a 17% tax at the point of sale and removes the $35 tax on plants. Mr. McConnell stated the 17% tax should be easier to implement.
Mr. McConnell stated that cities continue to have the ability to regulate medical and retail marijuana licensees, and expected this requirement would be included in any finalized laws. He verified this fact today with Rob Bovett, an attorney with the Association of Oregon Counties.
HB 3400-9, the retail marijuana amendment, allows cities to control retail licensees. One exception may include the adoption of the time, place and manner regarding retailers and spacing them more than 1000 feet apart. Mr. McConnell believed the state was concerned with cities zoning retailers out of city limits by requiring a large space between retailers. The Oregon Liquor Control Commission (OLCC) will not issue a marijuana license without a valid land-use compatibility statement (LUCS) stating that the proposed location meets the city’s comprehensive plan and land development code. Very importantly, HB 3400-9 states this LUCS will not be a land‑use decision, so it could not be appealed to the Land Use Board of Appeals (LUBA) and most likely appeals would be heard by Circuit Court.
HB 3400-10, the medical marijuana amendment, permits cities to adopt time, place and manner restrictions regarding all medical marijuana licensees. Mr. McConnell noted that licensed processors are also included in this bill. Processors can take marijuana to create something else whether through extraction or concentration methods.
At this point, it appears the city has the ability to impose time, place and manner restrictions on all marijuana businesses. However, there is no consensus regarding cities’ ability to ban licensees. The current provision indicates that if a county voted no on Measure 91 by 55% or more, a city would be able to opt out. Mr. McConnell was not sure of the percentage for Jackson County. However, if the County didn’t meet that requirement, an election was necessary to completely ban marijuana licensees. If marijuana remains a Schedule 1 drug under the Federal Controlled Substances Act, Medford can keep the moratorium.
Mr. McConnell requested Council direction regarding the Measure 91 approved home grows which would be legal as of July 1. He recommended passing the proposed marijuana odor ordinance prohibiting the unlawful release of marijuana odor and not passing the enclosure requirement. He believed the odor ordinance would solve 75-80% complaints.
Councilmember Corcoran questioned whether the city could ban outdoor grows. Mr. McConnell responded that Council could ban all outdoor grows if they wished. Councilmember Bearnson noted that indoor grows still need to “exhaust the smell.” Mr. McConnell stated the proposed marijuana odor ordinance states that growers shall not cause marijuana odor to emanate to any other property regardless of outdoors or indoors.
Councilmember Gordon asked how to determine whether an odor was a nuisance and how was it an odor defined and measured. Mr. McConnell responded that the odor would be handled as other nuisances, through the Code Enforcement Department.
Councilmember Corcoran questioned how people would mitigate the odor and would they lose their plants or be fined; Mr. McConnell responded the city would try to abate it through any means. Councilmember Bearnson believed this could cause an enforcement nightmare and would step on people’s personal freedom. Councilmember Bearnson stated that he would be surprised if many people would be offended by the odor.
Councilmember Bunn added that most enforcement is complaint based. Councilmember Jackle stated this would allow for “sub-communities” in Medford. There are parts of Medford who wouldn’t turn in their neighbors and others that will not allow marijuana in their neighborhoods.
Mr. McConnell again recommended Council direct the Planning Commission to draft a zone text amendment including the time, place and manner, and the operational developmental standards for licensed medical and retail marijuana businesses. Zone text amendments from other cities regulate the 1000 foot rule, signage, and processing with high heat or butane.
Councilmember Gordon did not believe the Planning Commission should handle this issue. Councilmember Jackle preferred conducting joint study sessions with the Planning Commission.
Patients Helping Patients
On April 30, a permanent injunction was issued against a medical marijuana state licensed business operating without a Medford business license at 2390 West Main Street. The city continued to receive complaints regarding marijuana smoking and people going in and out. One day after the injunction, the business owners applied for a business license for The Green Room Smoke Shop for the same type of business at the same location.
Today, the judge did not award the city remedial contempt, but issued an order prohibiting the sale of marijuana or marijuana products, which should eliminate this problem.
Mr. McConnell stated MaryJane’s Basement has obtained their state dispensary license and filed for another business license, which was denied. They have filed a lawsuit against the city.
Mr. McConnell asked for Council direction regarding the marijuana odor nuisance ordinance and the time, place and manner issue.
Mayor Wheeler thanked Mr. McConnell and asked whether the city had a nuisance ordinance; Mr. McConnell responded not for marijuana and City Attorney Lori Cooper responded our current ordinance does include offensive odors, but the proposed ordinance would be more specific.
Councilmember Zarosinski asked Mr. McConnell to clarify the difference between a marijuana dispensary and a liquor store. Mr. McConnell responded that pursuant to the law, nothing.
Councilmember Bearnson questioned the federal pre-emption and what would happen if the federal law changed. Mr. McConnell stated if marijuana was delisted, Medford would need Cave Junction to win their pending case or the state law would need to allow cities to ban marijuana licensees.
Councilmember Bunn liked the recommendation, but noted that we may need to repeal or revise it in the future. He also preferred including the Planning Commission and noted that depending on the state’s decision, we may need to consider taking the issue to a ballot.
Councilmember Jackle preferred an outright ban on outdoor grows in residential areas, noting our land-use code is designed to keep heavy agricultural use out of city limits. In addition, he would like the odor ordinance approved.
Councilmember Bearnson agreed with Councilmember Bunn regarding drafting some time, place and manner ordinances. He did not agree that four plants should be considered heavy agricultural growing and was concerned with the extensive electrical use with indoor grows.
Lieutenant Kevin Walruff spoke regarding the enforcement of the proposed odor ordinance, noting the nuisance must impact the complainant’s lifestyle. He also explained pending changes regarding medical marijuana amounts and selling the overages.
Councilmember Zarosinski believed this was a land-use issue and asked whether the Planning Commission could draft a proposed zone text amendment in time. He also asked for clarification on the number of plants allowed, because he thought there were different restrictions per person plus medical marijuana. Councilmember Bearnson clarified the state was considering limiting plants within city limits to 12 or 18. Ms. Cooper stated the limit is four plants per adult. Councilmember Bearnson noted that would be 16 plants per residence. He believed it was six per patient and four per residence. Councilmember Zarosinski replied that 16 plants seemed like an extremely large number in a residential neighborhood. Mayor Wheeler noted some of these plants were more like trees. Councilmember Bearnson responded that some people are able to grow larger plants than others, due to their abilities. He would like to see this addressed in a timely fashion, before January 1.
Councilmember Bunn asked whether current law pre-empted the city from using land-use regulations for marijuana businesses. Mr. McConnell and Ms. Cooper were not sure. Councilmember Bunn believed this is a land-use issue. Planning Director Jim Huber explained the LUCS process and noted they are processed through the City’s Planning Department, but did not occur often.
Mayor Wheeler stated it appeared that Council agreed on the marijuana odor ordinance. Mr. McConnell clarified that he was to bring back the marijuana odor nuisance ordinance and not the enclosure ordinance.
Councilmember Gordon expressed concerns regarding enforcement and the work for the Police Department. He preferred an outright ban against marijuana within city limits, because the Code Enforcement process is extensive and could take months. After time passed, the odor would be gone and then the next season it would start up again. If the city going to make a change we need to make sure the matter is solved. This doesn’t solve the problem.
Councilmember Bearnson believed a complete ban would create problems for the city, including litigation. Councilmember Bunn opined that we will be sued regardless. Mr. McConnell recommended holding public hearings to declare it a nuisance.
Mr. McConnell asked whether he should draft two separate ordinances, one regarding odor and one banning outdoor grows in residential zones. Council discussed which residential zones should be banned. Mr. McConnell stated that Central Point already has banned outdoor grows and Grants Pass was working on the same ban. Mayor Wheeler noted that we recently had an issue with a local methadone clinic and questioned whether we could use that information for marijuana. Councilmember Gordon recommended relying on time and manner up to the police department.
Council discussed whether to create a subcommittee to assist with the marijuana regulation.
Mr. Huber explained simple text amendments may take months and recommended as much information as possible from Council to speed the process. Mr. McConnell clarified that if the Council needed more time, the moratorium could stay in place while the revisions were drafted. City Manager Pro Tem Bill Hoke noted staff will not drag their feet, but we need to ensure that it is done correctly.
The meeting adjourned at 7:20 p.m.