June 25, 2015
Medford City Hall, Council Chambers
411 West Eighth Street, Medford, Oregon
The special meeting of the Medford City Council was called to order at 12:00 noon in the Council Chambers 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, Michael Zarosinski*
City Manager Pro Tem Bill Hoke; City Attorney Lori Cooper; Deputy City Recorder Karen Spoonts
Councilmember Daniel Bunn was absent.
*Left as noted.
20. Public Hearing
20.1 COUNCIL BILL 2015-70 An ordinance regulating the offensive odor of marijuana; recreational and medical marijuana grows.
Deputy City Attorney Kevin McConnell presented the staff report and stated that per Council’s direction, Council has two draft ordinances to choose from; Version 1 will ban outdoor recreational and medical marijuana grows at a dwelling and prohibit the offensive odor of recreational and medical marijuana from emanating to other properties and Version 2 will not ban outdoor grows, but merely prohibit the offensive odor of recreational and medical marijuana from emanating from a dwelling and its accompanying outdoor area to other properties. Mr. McConnell stated that this will be complaint based driven and gives neighbors an avenue to voice a complaint.
Councilmember Zarosinski questioned what would be allowed if we did nothing. Mr. McConnell provided information on state law and the moratorium that we have within our city. What would be allowed July 1 would be households having up to four plants with limits pertaining to housing units within the house (renting a room). Councilmember Zarosinski questioned what is allowed per medical usage; Mr. McConnell noted that if you have a medical card you could have more than four plants but Police Lieutenant Kevin Walruff could address that.
Lt. Kevin Walruff stated that the Oregon Medical Marijuana Program (OMMP) allows a patient to have six mature plants and 18 immature plants, which are not flowering. Medical growers could grow for four people. There is no limit to the number of growers at a grow site, which is causing problems. That is different than what will be allowed under recreational marijuana in Measure 91. Since March of 2015 there have been 17 odor complaints for medical grows that came in to MADGE. He noted that Medford Police gets most complaints on odor during the outdoor grow season.
Councilmember Bearnson questioned if the complaints received were for odor and not flowering marijuana plants; Lt. Walruff stated that he has been in grow sites that were not flowering and they still had odor.
Mayor Wheeler questioned what is the present requirements pertaining to screening; Lt. Walruff noted there are none but they would need to comply with City code.
Councilmember Corcoran questioned if this is a potential code enforcement nightmare and if banned, what would be the procedure. Lt. Walruff stated that there will be challenges and if there is a complaint and they find just cause, whether using municipal or administrative procedures, it could be a nuisance abatement issue.
Mr. McConnell noted there are different tracks that this issue could take and provided information on the citation or appeal process. Councilmember Corcoran questioned if it is clear to withstand a court challenge to ban outside grows. Mr. McConnell noted that it could be challenged but could be done by using legal arguments pertaining to home rule authority.
Councilmember Jackle questioned if the language “outdoor grows” applies to the entire outdoor area of the residential dwelling; Mr. McConnell noted that the ordinance is written for the entire residential lot.
Councilmember Zarosinski questioned what lacks in our current code pertaining to nuisance; Mr. McConnell noted that our nuisance ordinance does not apply to marijuana.
Councilmember Stine questioned if banning is reasonable; Mr. McConnell stated that Council has the ability to determine what is reasonable.
Councilmember Gordon spoke about the ruling in the Cave Junction II
case that was handed down by a Josephine County Circuit Court judge earlier in the week. Mr. McConnell noted that the Judge ruled in favor of Cave Junction based upon its federal preemption argument, which was the same argument the City forwarded in the MaryJane’s Basement
case and Patients Helping Patients
. Mr. McConnell stated that the judge in the Cave Junction II
case cited Judge Gerking’s opinion from Patients Helping Patients.
Councilmember Gordon did not like the options presented due to the length of time it takes to process and resolve; this did not seem practical and would like something more effective. Mr. McConnell noted the violator can be fined daily and did not think it was useless just because it takes time; citizens complain and this gives them an avenue to do that. He also noted if it went to Municipal Court the fines can be added on a daily basis. Mr. McConnell noted that some nuisance abatement issues have been solved and that no one wants the City to have full reign on their property.
Councilmember Jackle questioned if we could get a permanent injunction; Mr. McConnell noted that would lie with Circuit Court as we don’t have that authority. Councilmember Jackle noted that no ordinance will be perfect and if it takes two years to deal with a reoccurring problem there is an opportunity to deal with it at some level.
Councilmember Bearnson questioned what is our defense and argument for those that need medical marijuana; Mr. McConnell noted that we have been relying on the federal preemption argument.
Police Chief Tim George noted that abatements are complex and take time. The outdoor ban would be easier to enforce than the odor ban due to subjectivity. In the code enforcement world 90% of people comply. We have people growing in residential areas and medical marijuana cardholders could be the issue as they can have 28 adult plants for four adults. There are no size limits on the adult plants as they can be eight feet tall.
Deputy Chief Johnson reported on the workload of the three full time code enforcement officers, the 3,000 calls currently handled, 83 which went to abatement. Currently marijuana complaints go to MADGE, which covers Jackson County. With an ordinance it would go to code enforcement as an administrative violation. Impacts of an odor ordinance would be substantial especially during the summer due to the smell. Councilmember Bearnson questioned if any of the abatements were for marijuana; DC Johnson stated that none pertained to marijuana as our code does not speak to that. Councilmember Matthews questioned if the present code enforcement officers could handle the additional calls; DC Johnson noted that it would be difficult to determine; it might take additional staff and diverting resources from other areas.
Mr. McConnell stated that if a violator failed to appear at a scheduled hearing the City would be free to abate; if they failed to appear for court that would be a crime. Councilmember Gordon remarked that if the violator rescheduled a court date that would delay the process; Mr. McConnell noted that a defense attorney could also move the date out but on the administrative side a case would not being dragged on for a year.
Councilmember Bearnson questioned if House Bill 3400 puts a cap out how many marijuana plants can be at a residential cite; Mr. McConnell was unsure and stated that it has not passed yet.
Public hearing opened.
1. Ron Norris, President of the Board of Directors of the Alderwood Townhome Association, encouraged Council to enact an ordinance banning outdoor marijuana growing in the city limits of Medford. He stated that he is extremely concerned with neighborhood livability issues and without this, there will be a significant increase in grows, which in turn will degrade the livability of neighborhoods and increase public safety related issues. He did not think the City wanted to be known as Skunk City and further commented that if it is predictable, it’s preventable.
Councilmember Bearnson questioned how you would address the person who said that it is my right; Mr. Norris stated that the City can pass restrictions because of the livability issue due to the obnoxious odor. Councilmember Bearnson noted that if we do that, it would be grown inside which would be ventilated outside; Mr. Norris stated that that is another issue but they would need a sophisticated system and there should be fewer problems.
2. Carrol Oliver, 1042 Winchester Street, stated that she had an OMMP card and encouraged Council not to pass the ban on marijuana because of odor. She stated that inside grows will affect children and will smell their clothes, etc. Ms. Oliver also noted that other smells bother her, such as onions growing. She stated she is more allergic to her neighbor’s laundry detergent.
Public hearing closed.
Mayor Wheeler questioned if they are venting outside with an inside grow would it not be handled by police; Mr. McConnell noted that police would still be involved and that starting next year the access to marijuana will be easier which may help as it will be more readily available.
Councilmember Zarosinski questioned if someone was growing too many onions and would be offensive to others do we have an ordinance that covers that; Mr. McConnell noted that citizens have the private right to use an attorney. If passed, our ordinance would give people a reasonable alternative pertaining to marijuana odors.
Councilmember Stine questioned the issues with growing indoors; Mr. McConnell noted that he has not addressed that and there would be issues such as safety.
Councilmember Bearnson questioned if the large growers are big enough to involve MADGE; Lt. Walruff noted that they would check to see if they had an OMMP card to determine if it is a legal grow site, and would do a compliance check. Councilmember Bearnson stated that House Bill 3400 would restrict to only 12 marijuana plants. Chief George noted that House Bill 3400 is not final; it has passed the House and is on to the Senate. Chief George noted that there are currently 8,056 OMMP patients and 5,227 growers which can equal 125,448 mature plants and over 376,000 starter plants. With our weather, most plants are grown outside.
: Move to approve Version 1 of Ordinance 2015-70, which prohibits outdoor recreational and medical marijuana grows at a dwelling and prohibits the offensive odor of recreational and medical marijuana from emanating to other properties
: Tim Jackle Seconded by
: Michael Zarosinski
Councilmember Jackle stated that residential zones are not a place to grow marijuana and this is a livability issue. He stated that he would adopt Mr. Norris’ testimony as findings of fact. Councilmember Zarosinski remarked that this has always been more of a zoning/planning issue and is not appropriate for the numbers that are allowed. He would like to see this as a zoning amendment.
Councilmember Bearnson reported exparte contact but it would not affect his decision; he commented on Senate Bill 1531 where Council opted to do nothing, that this would be a big drain on our resources, and that Council not cling to the supremacy law of the Federal government.
Councilmember Corcoran stated the Council chose not to do anything but upheld an earlier decision. He also said that he was deeply conflicted as he does not want outdoor grows. He wished his ward was on the other side of town and spoke about the will of his constituents.
Amended Motion #1
: Amend motion to allow a maximum of four plants total, whether recreation of medical, per dwelling unit
: Dick Gordon Seconded by
: Kevin Stine
Councilmember Gordon noted that marijuana is a gateway drug. We need a balance pertaining to large grows; if people want to grow marijuana they have the right to do so.
Councilmember Stine noted that the balanced approach is the best thing to do; the City can regulate it and four marijuana plants are reasonable. Councilmember Zarosinski agreed.
Mayor Wheeler would like the size of the canopy discussed. Lt. Walruff stated that Measure 91 will restrict the amount of plants from being visible. The Legislative is looking at House Bill 3400 pertaining to weight size of twelve pounds for outdoor and six pounds for indoors.
Councilmember Bearnson noted that four is too restrictive and outright banning is too unreasonable. Councilmember Corcoran noted that the vote of the people was 50/50. Mayor Wheeler noted that people can still buy their medical marijuana and as a City we have a right to look at livability. He agreed that this can be a planning issue.
Councilmember Stine questioned if we would have an enforcement nightmare with four plants. Mr. McConnell noted we would still have the offensive odor in the ordinance. Councilmember Matthews noted that we need to find a middle ground and we are talking about neighborhoods. This will be an ongoing issue and Council can adapt the ordinance in the months to come.
Councilmember Bearnson questioned if we could dictate this by the size of the lot. Mr. McConnell noted it is possible, maybe not in Chapter 5 of the code but in the planning section of the code. Mr. McConnell remarked that Council could address the offensive odor ordinance today and leave the other issue of plants/lots to be looked at as a zoning process. Councilmember Corcoran noted this would only be a Band-Aid and if we don’t reduce the amount of pot we will still have the issues. Ms. Cooper noted that a restriction of four plants will take care of many of the complaints.
Councilmember Stine questioned how we would take care of this; Mr. McConnell noted that it is complaint driven and would be handled according to the proposed ordinance. Discussed was the number of complaints currently received and having something in place by July 1.
Roll call on Amendment #1
: Councilmembers Bearnson, Corcoran, Gordon, Matthews, Stine, and Zarosinski voting yes; Jackle voting no.
Motion #1 carried and so ordered.
Councilmember Stine questioned the number of number of plants allowed for medical marijuana card holders; Lt. Walruff stated that a person can have six mature and 18 immature.
Amended Motion #2
: Allow medical marijuana cardholders to have six marijuana plants per dwelling and four marijuana plants for recreational users
: Kevin Stine Seconded by
: Clay Bearnson
: Councilmembers Bearnson, and Stine voting yes; Corcoran, Gordon, Jackle, Matthews and Zarosinski voting no.
Roll call on Main Motion as amended
: Councilmembers Gordon, Jackle, Matthews and Zarosinski voting yes; Bearnson, Corcoran, and Stine voting no.
Motion carried and so ordered. Ordinance #2015-70 will be placed for a second reading.
*Councilmember Zarosinski left.
Mayor Wheeler stated that the Parks Uncorked will be Friday, June 26 from 6-9 p.m. at the U.S. Cellular Community Park and that the unveiling of the new Greyhound portal sign will be Saturday, June 27 at 9:30 a.m.
There being no further business, this Council meeting adjourned at 1:34 p.m.
The proceedings of the City Council meeting were recorded and are filed in the City Recorder's office. The complete agenda of this meeting is filed in the City Recorder's office.
Karen M. Spoonts, MMC
Deputy City Recorder