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Planning Commission (View All)

Planning Commission Study Session Minutes

Monday, July 27, 2015

The study session of the Medford Planning Commission was called to order at noon in the Lausmann Annex Room 151-157 on the above date with the following members and staff in attendance:
Commissioners Present
David McFadden, Chair
Tim D’Alessandro
David Culbertson
Norman Fincher
Joe Foley
Bill Mansfield
Mark McKechnie
Jared Pulver
Commissioners Absent
Patrick Miranda, Vice Chair, Excused Absence
Staff Present
Jim Huber, Planning Director
Kelly Akin, Principal Planner
John Adam, Senior Planner
Kevin McConnell, Deputy City Attorney
1.            DCA-15-051 Portable Storage Containers
2.            DCA-15-104 Marijuana-related businesses
1. DCA-15-051 Portable Storage Containers
Jim Huber, Planning Director reported that the portable storage container ordinance had sunset and the City Council initiated another amendment to bring it back to them. This is on a short time frame.
John Adam, Senior Planner, stated that businesses use the portable storage containers for layaway items.  This initially came as a request from Wal-Mart.
The City Council would like this to be an administrative process.  They would like to have neighboring property owners notified and the decision signed off by the Planning Director.  It is appealable to the Planning Commission depending on the recommendation.  A Class-D process will need to be adopted for this process.
In order to make a decision on the portable storage containers the Planning Director has to make findings.  The one that was inherited from the old version of the portable storage containers is (b)(1) Location Standards it states “…constitutes a threat to public safety, or create a condition detrimental to surrounding land uses and development.”  This last sentence is not clear and objective.  Any guidance from the Planning Commission will be helpful with this item.  It will have to be a defensible finding by the Planning Director. 
Commissioner Mansfield suggested instead of “detrimental” it could read “it unreasonably interferes with the use and enjoyment of neighboring properties.”  It is his opinion that the courts would uphold that because it is enough standard.  Kevin McConnell, Deputy City Attorney, stated that he would have to look into that.
Commissioner Pulver asked this was a temporary permit?  Mr. Adam replied yes.  It is good for one 90-day period in a given year and one 30-day extension.
Mr. Huber commented that this is the same ordinance that sunset with the addition of the notice procedures requested by the City Council.  Property owners are notified when the application is filed, the Planning Director makes the decision and then property owners are notified of the decision.  It gives people appeal rights if they do not like the decision.
Commissioner Fincher asked if there were any problems last year?  Mr. Adam reported that there were no complaints submitted.
Commissioner McKechnie asked if the notice goes to the Building, Fire, Planning, Police and Public Works Departments?  Mr. Adam stated yes and to neighboring properties within 200 feet.
Commissioner McKechnie asked if they submit an application do they have to provide a basis for the decision? Mr. Huber replied yes.  They would submit a site plan.
Commissioner McKechnie asked if they have to list the applicable criteria from the Code?  Mr. Huber reported that staff did not require that last year and they are contemplating it for this year.  Mr. Adam stated that staff mails out a notice stating the criteria to neighbors requesting their comments.
Commissioner McKechnie stated that is a lot of work compared to last year.  Do they have to have all this work to maintain defensibility and appeal rights of the neighbors?  Mr. Adam reported that this was driven by the desire of at least one member of the City Council.
Commissioner McKechnie reported that he has noticed that staff gets themselves boxed into a corner with a lot of these simple processes that make it complex for themselves and everyone else.  He is seeing one more of those happen here.  In his line of work simple is good.  It is his opinion that staff is making things way more complicated than they need to be and staff’s mantra seems to be simple is not good.  His suggestion is that if it has to be a new process, maybe rather than honing on one that already exists, make it simpler.
Commissioner Pulver asked if City Councils request was an approval and appeal process? 
Commissioner Foley asked if there was a way to keep the approval process in place without adding these complicated steps or not?  Mr. Adam reported that he did not know in terms of timing.  When noticing, there has to be a certain amount of time for responses.  The City Council wanted a process in which the surrounding properties had a right to appeal.  The fact of routing it to other agencies for their comments is for safety of the proposal.
Commissioner Foley asked if only a publication would meet the requirement of notification without having to go to all the property owners within 200 feet? 
Commissioner Mansfield stated that Commissioner McKechnie has convinced him that they need to strive for more simplicity and work less time.  Apparently, only one Council member wants to make it more complex.  It is his opinion that the Planning Commission should send a recommendation that they do not want to make it more complex.  If the majority of the City Council comes back and wants it more complex, then so be it.
Mr. Huber reported that the City Council member’s logic was that the location standards were not clear and objective.  They require judgment or discretion on the Director’s part that puts it in the realm of a land use decision.  That triggers the noticing.  If they want to get away from that and still be true to administrative or ministerial decisions then Section 1(b)(5)(6) and (7) could be eliminated.  Those are vague and require discretion or subjectivity.
Commissioner McKechnie commented that if it is over-the-counter then Section 1(b)(5), (6), and (7) are not a big deal.  Mr. Huber stated that if it is over-the-counter then Section 1(b)(5), (6), and (7) is a big deal because they are subjective which puts it in the land use decision. 
Commissioner McKechnie suggested that maybe this deserves a Class-E notification standard. 
Mr. Adam asked if the complexity of this was the process, recommending there is nothing wrong with the process, or it should be over the counter and why go through all this trouble for no purpose? 
Commissioner McKechnie stated that he understands the logic of making it appealable.  This is a simple temporary deal.  It does not need to be that complicated.  Add another process that has two items on it rather than going through all this.  Give it the amount of review that the project is actually worth. 
Mr. Huber summarized Commissioner McKechnie’s comments.  Eliminate Section 1(5)(6) and (7) and make it a Class-E.  Staff could argue that Section 1 (1)(2)(3) and (4) are clear and objective and as a Class-E there is no requirement to notify.  Commissioner McKechnie agreed.
Mr. Huber reported staff has statutory requirements of what goes into notices.  It is easy to say it is too complex, make it simple.  Staff has to comply with the law and a lot of these are driven by statutes.  It has to have time, place, contact, criteria their rights, etc.  Notices provide a lot of information prescribed by law. 
Commissioner Foley reported that given the temporary nature of this, it seems simple is better because it is 120 days a year maximum, for a particular site.  Mr. Huber commented that it is temporary but it is recurring.  Wal-Mart wants the temporary portable storage containers from October through the end of December. 
Mr. Adam stated that staff had clear direction from at least one member of the City Council that he would like to see this as a Class-D.  Staff can move forward with the recommendation from the Planning Commission that they do not think they need to bother with this.  This will come before the Planning Commission on Thursday, August 13, 2015.
Mr. McConnell reported that his understanding of what the Council member understood was based on the criteria and that the former Code provision was a limited land use decision.  That is why he wanted to see the noticing requirement.  He does not think the Council member had a problem with it being ministerial.
2. DCA-15-104 Marijuana-related businesses                 
Mr. Adam reported there are existing uses in the Standard Industrial Classification (SIC) that these marijuana-related businesses will fit into, and so would correspond to the SIC tables in the Code, but staff decided to isolate the marijuana-related businesses under their own category. 
Commissioner Foley asked about people holding multiple licenses, those who are retailers, processors and wholesalers. He pointed out that the Heavy Commercial district is the only one that a business can be all three.  Is that what the City wants?  He does not see this as a big wholesale operation.  He questioned if they should be more flexible on that one.  Currently, this is illegal federally and there will be an administration change at the Federal level in 2017.  Who knows if they will have the same hands-off approach to the States as the current one.  Should this be conditional upon Federal regulations?  Mr. Huber said the Planning Commission could make that recommendation to the City Council
Commissioner Mansfield reported that there is no liability to the City if the Federal government steps in.  They do not need a conditional repeal, if that happens, the City can repeal its laws.
Kelly Akin, Principal Planner, addressed Commissioner Foley’s question regarding bakeries.  There are two different kinds.  There is manufacturing which staff considers the processors to be and then there is the retail component.  There can be a retail bakery in any of the commercial zoning districts.  The processors are a manufacturing class.  You can have a bakery as manufacturing in the heavy commercial zone and dairy products but those are the only two food manufacturing processes that are permitted in heavy commercial zones.  Extracting processes are not permitted in the commercial zone.
Commissioner Mansfield said he would vote yes on “all growth will be conducted inside enclosed structures.”
Chair McFadden is not sure of the term “dispensaries”.  Staff responded that it is medical marijuana.  Mr. McConnell reported that medical marijuana dispensaries is the medical side and marijuana retailers is the Measure 91 recreational side.  Ms. Akin stated that staff did not define these.  Producers are growers.  Processors are people that make something with the product such as baked items and extracted oils.  Wholesalers are exactly what it says and the rest are what they say. 
Commissioner Culbertson reported that in his opinion this will marry along with grapes as far as cultivation, bringing it in and how it is going to be processed.  He does not believe it will fit in the commercial zone.  It will fit in the light industrial.
Chair McFadden asked where does the marijuana have to be tested?  Staff reported in laboratories.
Commissioner McKechnie thought that the labs were like quality control.  If there are laboratories why indicate they cannot be in the C-N, I-G and I-H zones?  Ms. Akin replied that they carried it across from the existing table: labs are not allowed in those districts now; there is no reason to change it for this purpose.  Mr. Adam reported that these are unique laboratories that are uniquely allowed in the industrial zoning districts.  More than likely the current laboratories will pick up this business.  Commissioner McKechnie asked why do we really care if a laboratory is testing marijuana, building products, or something else?  It seems a little odd that they would be in C-S/P.  Mr. Adam stated that C-S/P is where the medical uses are allowed. 
Mr. Adam asked Commissioner McKechnie if he was asking to specifically give this one special use across the board or asking generally about laboratories?  Commissioner McKechnie reported there are too many choices.  Staff needs to thin it down by about two thirds.
Chair McFadden sees no problem with concentrating most of this into a certain area.  The market is only going to support a certain amount.
Commissioner Pulver thinks staff did a reasonable job allowing them in the certain zoning districts.  There needs to be discussion on limitation.
Mr. Adam asked if there was a particular opinion on heavy commercial for processors?  It was suggested put it as a Ps.
Mr. McConnell reported that there have been several presentations to the City Council on marijuana in general.  Producers will not have a big impact on the City, it is the processing.  He has taken dozens of calls from citizens who are interested in setting up shop in Medford and the surrounding area.  The processors are where the money is as well as the retailers.
Commissioner Culbertson stated that production will be outside the city limits.  The biggest question is the processors.  What are they going to do with it?  Are they going to be bringing it in bins or truckloads?  How are they going to process it?  He thinks they will do the processing out in the field and they will do packaging, the final product in a packing house or somewhere downtown.
Commissioner D’Alessandro reported that a lot of the process will be turning it into edibles, oils, and all the different things they do.  He agrees some will be done out in the field as they break it down.  The creation of all the other products is going to happen in a warehouse or facility.  That is where Commissioner Mansfield’s comment came in regarding the production inside a facility.  How do you keep that at a level where the smells are not intrusive? 
Moving on to looking at the prospective use regulations, Mr. Adam pointed out that no marijuana-related business shall permit trespass or glare from security or other lighting beyond its property line.  Section 9.560 is fence provisions that specifies as permitted in the commercial and industrial zones but it talks about hazardous fencing materials.
Chair McFadden asked if “enclosed” meant fully enclosed or just walls?  Mr. Adam stated that the intent is fully enclosed.
Commissioner D’Alessandro asked if processors should be held under the same standard as far as odor filtration as the producers and wholesalers?  Mr. Adam replied yes.
Commissioner Pulver asked what happens if they are found in violation?  Do they get fined?  If neighbors complain of the odor what happens?  Mr. McConnell reported that any violation of the Code can be prosecuted through Municipal Court.  They usually do not do that for a Chapter 10 violation. The businesses do not want to be in violation of State law because OLLC could revoke or suspend their license.  He has not read this all the way through and does not know if there is anything specific to marijuana businesses as to what the stake is for violation of the Code.   There would certainly be something in the Code for violations.  Any violation of the City’s Code that has gone on for more than 10 or more days the City can seek injunction relief through the Jackson County Circuit Court.
Commissioner Culbertson asked if there was anything on the books governing the industrial area on Front and Fir Streets or on pear-packing facilities that have ammonia systems?  Ms. Akin replied not from a land use perspective.
Commissioner D’Alessandro stated that there are state and federal laws and safety regulations through OSHA that mandate a lot of those types of things when it comes to chemicals in confined spaces.
Staff said its approach to regulation was to normalize this; this is an industry like any other.
Commissioner Pulver equates dispensaries and retailers to liquor stores.  They are limited to locations and hours.  Is staff addressing that?  Mr. McConnell stated that state law says on medical marijuana dispensaries cannot be within 1,000 feet of schools and each other.  On the retail side they cannot be within 1,000 feet of schools but it does not say they cannot be within 1,000 feet of each other.  House Bill 3400 allows cities to put that limitation as not beyond 1,000 feet.  The Commission needs to figure out if they want to put a distance limitation on marijuana recreational retailers.
Commissioner Foley asked if the Planning Commission wanted to discuss hours of operation?  Mr. McConnell stated that there is a Rules Advisory Committee that just got started and he does not know if they have hours of operation limitation or not.  If not, there probably will be.  That may not have to be addressed.  The Commission can discuss time, place and manner.  If there is something they would like to see now is the time to do it.
Commissioner D’Alessandro stated that if it is going to be similar to alcohol beverages; maybe the time, place, and manner should follow suit in a sense on the retail side in terms of hours and locations.  Mr. McConnell said he can see one difference between marijuana and alcohol.  The southern Oregon marijuana side has an allure to it because there may be more marijuana retailers congregating because of tourists supporting them.  This was happening in Colorado.
Commissioner Mansfield stated that he is fully aware that the public voted for Ballot Measure 91.  His motivation is to cooperate as little as possible.  He likes all the limitations, and that products cannot be displayed in a manner externally visible to the public.  He would like to eliminate both off- and on-premises advertising.  He thinks that attention needs to be paid that the OLCC may adopt rules regulating advertising that is appealing to minors, promotes excessive use and promotes illegal activity.                          
Commissioner McKechnie reported that it might be advantageous to discuss with other cities like Seattle, Denver, and Colorado Springs regarding safety.  What kind of occupancy will this fall under?  Mr. Adam stated that he will see what he can come up with.
Chair McFadden has concerns with transportation. 
The meeting was adjourned at 1:20 p.m.
Submitted by:
Terri L. Rozzana, Recording Secretary


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