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Planning Commission Study Session Agenda and Minutes
Monday, March 27, 2017
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:
David McFadden, Vice Chair
E. J. McManus
Patrick Miranda, Chair, Excused Absence
Jared Pulver, Unexcused Absence
Matt Binkley, Planning Director
Kelly Akin, Assistant Planning Director
Kevin McConnell, Deputy City Attorney
Carla Paladino, Principal Planner
20.1.1 DCA-17-014 – Code Amendment Draft Review – Marijuana Production in Heavy Commercial
Carla Paladino, Principal Planner reported that in December 2016, two citizens spoke to the City Council and asked that they consider allowing the production of marijuana in the Heavy Commercial zoning district.
A letter was received from Brett and Trina Helfrich owners of property off of Riverside between I-5 and Riverside in the Heavy Commercial zoning district. They have been approached by people in the cannabis industry looking for space to grow.
The Planning Commission had an initial study session on January 9, 2017, to hear the request. The text amendment was initiated by the Planning Commission on January 26, 2017.
The Code currently allows for production or growing marijuana in all the industrial zoning districts. Last year the Medford voters voted down allowing marijuana production outdoors in residential zones. Marijuana grown on residential properties must be done indoors. This piece of the marijuana law is found in Section 5 of the Municipal code.
The proposed change would amend the code to allow production in the Heavy Commercial zoning district. The special use regulation in Section 10.839 would apply (must be conducted in a secure and enclosed structure, no offensive odor may emanate from the property).
If allowing marijuana growing at a minimum it should allow vegetables and melons, and field crops are similar to marijuana (field crops include cotton, tobacco, sugarcane, Irish potatoes, hops and yams). Currently, these uses could only be grown indoors unless they have the Exclusive Agricultural overlay. If it is permitted to process marijuana in the Heavy Commercial zoning district (this could include making food/edibles or extraction for oils). Other such uses that are not marijuana related should be allowed as well.
Vice Chair McFadden is concerned with fats and oils. Ms. Paladino stated that staff was relating the oil to a smaller scale similar to olive oil and diffusers. She will check into that before the hearing.
Commissioner Foley is confused why fats and oils are included. Ms. Paladino reported that under the SIC codes 205 Bakery Products, 207 Sugar and Confectionary Products and 207 Fats and Oils the thought was, if allowing marijuana production to include baked goods and making oil products, why shouldn’t they allow other users?
Kevin McConnell, Deputy City Attorney, clarified that the City does not allow OLCC license marijuana production in residential zones. They are talking about Measure 91 home grows of four plants and any medical marijuana grows that are allowed under State law.
Commissioner Foley commented that the testimony at the Planning Commission meeting was open to a conditional use permit. Should that be considered versus just allowing it? Ms. Paladino reported that was discussed in the early stages. From a staff perspective it cannot meet the criteria.
Commissioner Foley stated that he is talking about a conditional use permit as it relates to an exception for heavy commercial. Looking at it just for that zone. Ms. Paladino reported that heavy commercial allows to build residentially.
Ms. Paladino stated that something could be added to the special use regulation section about not having the same use on the same property or a buffer. It could be simple seeing what happens and if it gets denied it is denied.
The Planning Commission hearing date is Thursday, April 13, 2017, with a recommendation to the City Council. City Council will hear this in May. If the Planning Commission is not comfortable with this they can make a recommendation for something different or just say no they do not want that.
Vice Chair McFadden commented that there was an odor issue with this inclusion. Is there a solution to the odor issue? Ms. Paladino reported that currently the special use regulation that any marijuana production is not allowed to emanate odors to neighbors. Those are addressed through code complaints.
Matt Brinkley, Planning Director, stated that there are filtration systems that are reported to work.
Mr. McConnell reported that the big local marijuana producers have heavy duty filtration systems. He visited one on for a potential code violation several months ago and he could not smell marijuana from the outside. They had thousands of plants. Inside was not as bad as thought to be. There is a device called a nasal ranger to detect odors.
Commissioner McKechnie stated that originally he was in favor of a conditional use permit for any of the marijuana uses. It seemed that staff thought if it had to have a conditional use permit, it was dead unless, there is something that can be done with the conditional use permit process that would allow some sort of flexibility. It gave some control over the process without killing it.
Commissioner McKechnie stated that heavy commercial allows more intense uses than light industrial. Is there a size limitation on heavy commercial versus light industrial? Kelly Akin, Assistant Planning Director, stated that in heavy commercial there are two things to discuss. The minimum lot area in heavy commercial is 7,000 square feet. The zone change criteria has locational criteria for heavy commercial. It states that it has to abut on an arterial street or highway. May abut I-G, I-L or any of the commercial zones which would include the neighborhood commercial zone. Ordinarily considered to be unsuitable abutting any residential and industrial zones.
Commissioner Culbertson asked, would they have the ability to submit an application for a zone change to the GLUP map changing it to an industrial zone? Ms. Akin replied, potentially. It depends on the criteria to amend the GLUP map. Commissioner Culbertson stated that a pathway exists. They would have to go through the steps. They are asking to change the pathway to not have them go through a zone change and a GLUP alteration. Ms. Akin replied that is correct.
Commissioner McKechnie stated that everything else is allowed in heavy commercial except indoor growing.
Ms. Akin stated that when they went through the process, it is handy to have that second equivalent that ended up being adopted into the text. They considered marijuana to be tomatoes. Staff carried the SIC codes all the way through. Ms. Paladino talked about having to change the other agricultural items being permitted in production in the C-H zone. Staff classified as marijuana in the SIC codes that are not currently permitted.
Commissioner Culbertson agrees with the changes; it is filling the gap. He agrees with Vice Chair McFadden on the concerns about the fats and oils. How far do we go on additional products? The request for the amendment is only on growing.
Ms. Akin reported that on the fats, oil, and confectionary when staff contemplated the processing they listed the three SIC codes 205, 206, and 207 but for some reason only bakeries are permitted. Currently, candy production is not allowed in the C-H zone.
Commissioner McManus suggested having a category of consumables.
Commissioner McKechnie suggested omitting fats and oil.
Commissioner McManus asked, if the conditional use permit process is considered does the conditional use permit stay with the property and the entity? Ms. Akin replied that it runs with the land.
Commissioner McManus asked, are there cities with active marijuana production that have more of an objective approach? Ms. Paladino stated that Ashland does not allow production in commercial zones. Phoenix allows production it is highway commercial zones. Central Point may be repealing some of their marijuana laws so she does not want to use them as baseline. She can get more examples.
Mr. Brinkley reported that Phoenix has special standards for all of the cannabis businesses. There is no conditional use permit but they have a special business license and have to comply with the special standards. There is limitation on the size of the facility and separation of the facilities one from another so you do not end up with concentration.
Commissioner Mansfield reported that he has disqualified himself from this subject.
Commissioner Foley asked, should they consider something that does not run with the land for conditional use? Mr. Brinkley asked, does the Code allow imposing a condition like that on a conditional use permit? Ms. Akin reported that it does not expire once the use is established. It runs with the land.
Commissioner McKechnie asked, why can’t it run with the use?
Commissioner Culbertson stated that some of the conditional use permits should have retraction language stating if they go out of business or transfer those should dissipate and go back to the original zoning.
Vice Chair McFadden asked, how is a planned unit development terminated? Ms. Akin reported that it takes a Planning Commission action. All land use actions run with the land.
Ms. Akin stated that the point of a conditional use permit is to mitigate impacts.
Commissioner Culbertson asked Mr. McConnell legally he does not think one would be able to impose retroactive enforcement if language was created that conditional use permits now have some sort of sunset or it goes with that particular business. Mr. McConnell stated that he agrees with that without doing any research. If there was sunset language, how would the title report reflect that? It runs with the land so there would have to be a notice to people of their rights and potential liabilities.
Commissioner Mansfield stated that he agrees with Mr. McConnell. He does not think you could do a conditional use permit to a certain person or corporation. It runs with the land. He does not think the law would permit it.
Mr. Brinkley reported that is the same issue they run into with a legally non-conforming use. That does not show up in a title report. Staff has the same issues with planned unit developments.
Commissioner Culbertson stated that in real estate transactions any buyer will have to do due diligence on the property for a particular business use. If it is regular residential they are not going to question it because the residential zoning is going to be there. If someone applies for a City of Medford business application, they are going to want the file pulled and find out what they can and cannot do for their business use. In the due diligence period they should be researching that. He does not see in the title reports anything of public record. A business application is not of public record.
Commissioner Mansfield reported that he wished they would stop calling it a business license, it is a business tax. There are no regulatory provisions whatsoever, except as a checkpoint to make sure one is following the zoning requirements.
Ms. Paladino clarified moving forward. The chart would be amended to remove permitting production of fats and oils in the C-H zoning. The remaining changes would be provided to the Commission on the 13th for their consideration.
Vice Chair McFadden asked about internal discussion of better copies for the agenda packets. Ms. Akin stated that will be discussed with staff. Staff provides for the Site Plan and Architectural Commission pdfs separately from the agenda and staff can do it for the Planning Commission which they have done several times in the past. It was not well received but staff will do it on huge projects. Vice Chair McFadden stated that it would be nice if there was some way of imbedding a link.
The meeting was adjourned at 12:48 p.m.
Terri L. Rozzana