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HomeMy WebLinkAboutMarijuana Dispensaries Ordinance Docs STAFF REPORT FILE NUMBER TA-14-3 HEARING DATE: March 17, 2014 HEARING LOCATION: Barnes and Sawyer Hearing Rooms Deschutes Service Center 1130 NW Wall Street Bend, OR 97701 APPLICANT: Deschutes County Board of County Commissioners 1300 NW Wall Street, Suite 200 Bend, OR 97701 REQUEST: Text Addition to Deschutes County Code (“DCC”) 9.04 to prohibit the use of any building, structure, location, premises or land for any marijuana business or the sale of any federally controlled substance contrary to federal law in any Deschutes County zone under Title 18. STAFF CONTACT: Nick Lelack, Community Development Department (“CDD”) Director I. APPLICABLE CRITERIA Senate Bill (“SB”) 1531C (2014) ORS 203.045 Procedure for adopting ordinance; exception by charter or certain statutes II. BASIC FINDINGS A. BACKGROUND: Under ORS 475.314, facilities registered with the state to dispense medical marijuana were allowed in zones that allow commercial uses. Senate Bill 1531 was introduced in 2014 to allow cities and counties to regulate or restrict or prohibit the registration of medical TA-14-3, Deschutes County Board of County Commissioners Page 2 of 8 marijuana facilities allowed under ORS 475.314. That bill was met with opposition. By the end of the 2014 Legislative Session, a compromise was reached allowing cities and counties to enact a moratorium on the operation of registered medical marijuana facilities until May 1, 2015 so long as the moratorium is enacted no later than May 1, 2014. B. PROCEDURAL HISTORY: Although this moratorium is allowed by SB 1531C and, therefore, is not a land use decision, the Deschutes County Planning Commission was provided the opportunity to review the proposed moratorium and to provide its recommendation to the Board of County Commissioners (“Board”). The Planning Commission forwarded the proposal to the Board with no recommendation and urged caution in the wording of the moratorium. Notice of a public hearing before the Board was published on March 3, 2014 in The Bulletin. Staff submitted the ordinance and text addition to the Board on March 5, 2014. C. PROPOSAL: A text Addition to Deschutes County Code (“DCC”) 9.04 to prohibit the use of any building, structure, location, premises or land for any marijuana business or the sale of any federally controlled substance contrary to federal law in any Deschutes County zone under Title 18. D. PUBLIC COMMENTS: As of the date of this Staff Report, no public comments have been received by the Community Development Department. III. CONCLUSIONARY FINDINGS: A. SB 1531C (2014) SECTION 3. (1) Notwithstanding ORS 475.314 and section 2 of this 2014 Act, the governing body of a city or county may adopt an ordinance enacting a moratorium on the operation of registered medical marijuana facilities until May 1, 2015, in the area subject to the jurisdiction of the city or county if the moratorium is enacted no later than May 1, 2014 . FINDING: Because the above quoted section allows a local jurisdiction to enact a moratorium outright, such a moratorium is not a land use decision. Additionally, the above section of SB 1531 does not require any findings of compliance with any state or local land use regulation in order to enact the moratorium. Therefore, the adoption of this ordinance fits the definition in ORS 197.015(10)(b) of what is not a land use decision. B. DCC Chapter 22.12 LEGISLATIVE PROCEDURES TA-14-3, Deschutes County Board of County Commissioners Page 3 of 8 FINDING: Should such a decision be later found to be a land use decision, as stated above, in accordance with DCC 22.12.010, the staff provided the Deschutes County Planning Commission an opportunity to review the proposed text addition and make any recommendations to the Board. The proposed text to the Planning Commission was slightly different. “The use of any building, structure, location, premises or land for any marijuana business or the sale of any federally prohibited substance is prohibited by Deschutes County Code, and is not a permitted or conditional use in any Deschutes County zone under Title 18.” The Planning Commission forwarded the proposed text amendment to the Board with no recommendation and some of the members urged caution in how the amendment is to be worded in order to avoid unintended consequences. Since then, Laurie Craghead, Assistant Legal Counsel, discussed the proposed language with a prosecutor in the United States Attorney General’s office to better understand the federal definition of “Controlled Substance.” As a result, the language submitted to the Board on March 5, 2014 varies slightly in that it references “federally controlled substances” instead of “federally prohibited substance.” “The use of any building, structure, location, premises or land for any marijuana business or the sale of any federally controlled substance is prohibited by Deschutes County Code, and is not a permitted or conditional use in any Deschutes County zone under Title 18 except as allowed by federal law.” Notice of a public hearing before the Board was published on March 3, 2014, which is more than the ten days required in DCC 22.12.020(A). Since the proposed text addition was submitted to the Board, the Association of Oregon Counties (“AOC”) drafted a proposed form of ordinance that the Board may want to consider. “SECTION 1. Authority to Impose Moratorium on Marijuana Dispensaries Section 2 of this Ordinance is enacted pursuant to one or more of the following authorities: (1) The inherent powers of (insert name of local jurisdiction) pursuant to the Oregon Constitution and Oregon law. (2) The federal Controlled Substances Act, 21 USC 801, et seq. (3) (insert ordinance or code section number), requiring business license applicants be engaged in activity that complies with county, state, and federal law. (4) 2014 Oregon Senate Bill 1531. (5) 2013 Oregon House Bill 3460. SECTION 2. Moratorium on Marijuana Dispensaries TA-14-3, Deschutes County Board of County Commissioners Page 4 of 8 (1) There is a moratorium on the operation of any marijuana dispensary in any area subject to the jurisdiction of (insert name of local jurisdiction). (2) As used in this section, "marijuana dispensary" includes any facility that dispenses marijuana pursuant ORS 475.314, or any other provision of Oregon law. SECTION 3. Notice to Oregon Health Authority A copy of this Ordinance shall be forwarded to the Oregon Health Authority by regular mail, and by any other such means as required by rule of the Oregon Health Authority.” Should the Board desire to enact the above, the discussion in Section D. below under Subsection 6 provides the process for adopting the alternative language. Sections 1 and 3 of the AOC version would be clauses in the ordinance and Section 2 would be the actual text addition, in other words, the new Exhibit A. If the Board chooses this version, staff will create the new draft as soon as possible and have it available for signature that same day. C. ORS 215.503 Legislative act by ordinance; mailed notice to individual property owners required by county for land use actions. (M56 Notice) (4) In addition to the notice required by ORS 215.223 (1), at least 20 days but not more than 40 days before the date of the first hearing on an ordinance that proposes to rezone property, the governing body of a county shall cause a written individual notice of land use change to be mailed to the owner of each lot or parcel of property that the ordinance proposes to rezone. (9) For purposes of this section, property is rezoned when the governing body of the county: (a) Changes the base zoning classification of the property; or (b) Adopts or amends an ordinance in a manner that limits or prohibits land uses previously allowed in the affected zone. FINDING: The above statutory provisions are not applicable to the subject County Code text amendment because the uses are prohibited by federal law. Thus, to require the County to permit such uses puts the County in a precarious situation of possibly violating that federal law. Furthermore, no persons could make a valid claim that their properties lose value by being prohibited from using their property in a way that violates federal law. D. 203.045 Procedure for adopting ordinance; exception by charter or certain statutes. TA-14-3, Deschutes County Board of County Commissioners Page 5 of 8 (1) This section does not apply to a county that prescribes by charter the manner of adopting ordinances for the county or to an ordinance authorized by a statute other than ORS 203.035. FINDING: Deschutes County is a “General Law” county and does have a charter. Therefore, this statute applies to any ordinance adopted by the County. (2) The ordaining clause of an ordinance adopted under ORS 203.035 shall read: (a) In case of adoption by the county governing body only, “The (name of the governing body) ordains as follows:”. (b) In case of adoption or ratification by the electors of the county, “The People of (name of county) ordain as follows:”. FINDING: The ordinance includes the appropriate ordaining clause. (3) Except as subsections (4) and (5) of this section provide to the contrary, every ordinance of a county governing body shall, before being put upon its final adoption, be read fully and distinctly in open meeting of that body on two days at least 13 days apart. (4) Except as subsection (5) of this section provides to the contrary, and except ordinances imposing, or providing exemptions from, taxation, an ordinance necessary to meet an emergency may, upon being read first in full and then by title, be adopted at a single meeting of the governing body by unanimous vote of all its members present, provided they constitute a quorum. (5) Any reading required by subsection (3) or (4) of this section may be by title only: (a) If no member of the governing body present at the meeting requests that the ordinance be read in full; or (b) If, not later than one week before the first reading of the ordinance, a copy of it is provided each member, copies of it are available at the headquarters of the governing body, one copy for each person who requests it, and notice of the availability is given by: (A) Written notice posted at the courthouse of the county and two other public places in the county; and (B) Publication at least once in a newspaper of general circulation in the county, designated by the county governing body and published in the county or, if no newspaper is so published, then in one published elsewhere. FINDING: Per direction from the Board, the ordinance is proposed to have the first and second reading by title only and be adopted by an emergency clause in compliance with TA-14-3, Deschutes County Board of County Commissioners Page 6 of 8 the above provisions. The purpose for the emergency is to prevent as soon as possible the establishment of marijuana dispensing facilities in the unincorporated county area. (6) An ordinance adopted after being read by title only may have no legal effect if it differs substantially from its terms as it is thus filed prior to the reading, unless each section incorporating such a difference, as finally amended prior to being adopted by the governing body, is read fully and distinctly in open meeting of that body. FINDING: Should the Board desire to change the proposed language to that proposed by the Association of Oregon Counties or to any other language, in order to conduct the first and second readings by title only and adopt the ordinance on March 17, 2014, the Board will need to read into the record in its entirety the revised ordinance and text section. Legal staff will attend the meeting to provide guidance as to how to conduct that reading. (7) Upon the final vote on an ordinance, the ayes and nays of the members of the governing body shall be taken and recorded in the record of proceedings of the body. (8) Upon the adoption of an ordinance by the governing body in accordance with this section, the chairperson and recording secretary of the body at the session at which the ordinance is adopted shall sign it with the date of its adoption and with their names and titles of office or position. (9) An ordinance adopted in accordance with this section, if not an emergency ordinance, shall take effect on the 90th day after the date of its adoption, unless it prescribes a later effective date or is referred to the electors of the county. If an ordinance is referred to the electors, it shall take effect only upon the approval of a majority of those voting on the proposed ordinance. An emergency ordinance may take effect immediately upon the date of its adoption. FINDING: The ordinance will be adopted in accordance with the above. IV. CONCLUSION AND RECOMMENDATION: The Board should conduct the public hearing. If the Board chooses to move forward with the ordinance after the public hearing, the Board should choose which version of the text amendment it prefers: As submitted to the Board: “9.04.040. Controlled Substances TA-14-3, Deschutes County Board of County Commissioners Page 7 of 8 The use of any building, structure, location, premises or land for any marijuana business or the sale of any federally controlled substance is prohibited by Deschutes County Code, and is not a permitted or conditional use in any Deschutes County zone under Title 18 except as allowed by federal law.” As proposed by AOC: “9.04.040. Controlled Substances A. There is a moratorium on the operation of any marijuana dispensary in any area subject to the jurisdiction of Deschutes County. B. As used in this section, ‘marijuana dispensary’ includes any facility that dispenses marijuana pursuant ORS 475.314, or any other provision of Oregon law.” If the Board chooses the latter, the ordinance itself will be changed to read (Track Changes included to show the amended language.): WHEREAS, the Board of County Commissioners (“Board”) ini tiated an amendment to Deschutes County Code Title 9 to add Chapter 9.04.040 Controlled Substances; and WHEREAS, after a duly noticed public meeting, on February 27, 2014, the Deschutes County Planning Commission reviewed the amendment and voted five to zero (5-0) to forward the amendment without taking a position to the Board; and WHEREAS, after a duly noticed public hearing, on March 17, 2014 the Board approved the amendment to Deschutes County Code; and WHEREAS, Section 1 of this Ordinance is enacted pursuant to one or more of the following authorities: (1) The inherent powers of (insert name of local jurisdiction) pursuant to the Oregon Constitution and Oregon law. (2) The federal Controlled Substances Act, 21 USC 801, et seq. (3) 2014 Oregon Senate Bill 1531. (4) 2013 Oregon House Bill 3460; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. ADDING. Deschutes County Code Section 9.04.040 Prohibited Substances is added to read as described in Exhibit “A”. Section 2. EMERGENCY. This Ordinance being necessary for the public peace, health and safety, an emergency is declared to exist and this Ordinance takes effect on its passage. TA-14-3, Deschutes County Board of County Commissioners Page 8 of 8 Section 3. A copy of this Ordinance shall be forwarded to the Oregon Health Authority by regular mail, and by any other such means as required by rule of the Oregon Health Authority. Dated this 10th day of March, 2014 NOTICE OF PUBLIC HEARING The Deschutes County Board of County Commissioners will hold a Public Hearing on Monday, March 17, 2014, at 10:00 a.m. in the Barnes and Sawyer Rooms of the Deschutes Services Center, 1300 NW Wall St., Bend, to consider the following request: FILE NUMBER: TA-14-3 SUBJECT: Adoption of an ordinance to prohibit the use of any building, structure, location, premises or land for any marijuana business or the sale of any federally prohibited substance in any Deschutes County zone under Title 18. APPLICANT: Deschutes County STAFF CONTACT: Nick Lelack, Nick.Lelack@deschutes.org Copies of the staff report, application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at the Planning Division at no cost and can be purchased for 25 cents a page. The staff report should be made available 7 days prior to the date set for the hearing. Documents are also available online at www.deschutes.org. Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call the ADA Coordinator at (541) 388- 6584.