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HomeMy WebLinkAbout2016-03-02 - Marijuana Advisory Committee Minutes MINUTES MARIJUANA ADVISORY COMMITTEE DESCHUTES SERVICES CENTER 1300 NW WALL STREET, BEND, OREGON, 97701 MARCH 2, 2016 – 4:00 P.M. I. CALL TO ORDER Meeting was called to order at 4:00 p.m. by facilitator Mary Orton from The Mary Orton Company. Members present were: Josh Rodriguez, Matt Cyrus, Steve Swisher, Andrew Anderson, Jeff Ingelse, Glenn Kotara, Larry Fulkerson, Hunter Neubauer, Alison Hohengarten, Lindsey Pate, Liz Lotochinski, Sam Davis, Tim Elliott. Staff present were: Nick Lelack, CDD Director; Matt Martin, Associate Planner. II. PUBLIC COMMENTS Justin Gottlieb said he has worked on a report regarding the history of cannabis in Oregon and people may contact him with any questions. Nunzie Gould said that she has discovered that Deschutes County is a landholder, with much of its land used for parks, but it has no park district. The Tumalo swimming hole should be treated like a park and historically has been a park. She brought maps and a survey of the property. She said this got her thinking about other County lands, such as on either side of Sawyer Park and Indian Ford Meadows. She would encourage the MAC and the County to be transparent in identification of County lands so that those used for recreation can be protected for youth in connection with the retail marijuana sector. She has made a request for a list of OHA facilities and feels that information is important to the committee and to apply to the criteria. Roland Howlitz, who is on the Board of the Alfalfa Fire District, spoke about the newly formed fire district. It will probably be another year before they can fight fires. Cameron Yi said he was on the OLCC’s technical subcommittee for extractions for the state program and has also worked with City of Bend Police Dept. and County arson investigation team. Homemade extracts are the most important thing to prevent in this market. Extraction of cannabis is similar to an aircraft – in itself, an aircraft is not dangerous, but the maintenance and people working on it determine the safety. Equipment used in cannabis extraction is the same – they are looking at safety right how. He respects what the OLCC 2 has done in hiring professionals as consultants, and hopes the County does not put too many regulations in place that supersede the OLCC. III. DISCUSSION ON MEDICAL AND RECREATIONAL MARIJUANA REGULATIONS - RETAIL How To Treat the Existing Dispensary The group discussed the question posed on the agenda: “Do you want to recommend that the Board treat the one existing dispensary in unincorporated Deschutes County differently from the others? (If yes, staff can work with the Board to address this issue. (Please note that Josh cannot participate in decision-making on this issue because it would be a conflict of interest.)” Josh recused himself from participating in this discussion because he operates the one existing dispensary in unincorporated Deschutes County (permitted as of December 2015). In response to a question, he discussed the process and notice already sent to neighbors, and potential conditional use permitting necessary to convert from a medical to retail operation. The function of his business is not changing, so he wondered about the necessity for a conditional use permit. Nick discussed current provisions in County Code which do not allow conversion to recreational without a land use process - the question is if an approved dispensary needs a conditional use permit. Another member asked if they should take cannabis out of the picture, instead of looking at one member differently. What if someone had a bar instead? If they can show that they can meet the standards, should they need a separate permit? Matt clarified that under current County standards, medical marijuana dispensaries are permitted outright. The proposal is to look at conditional use for an existing dispensary to convert to recreational marijuana. It is a change in use, just like any commercial building that moves from one business to another. The Board wanted existing medical marijuana dispensaries to go through a land use process as of a year ago. The question is, does it go through that change with a permitted use or a conditional use? A concern was raised about setting a precedent for potential medical grow sites converting to recreational production, and singling one out in this process. Matt said they would be subject to any and all standards that are adopted. A proposal was made that any existing permitted medical marijuana facility in the County would be permitted to expand to recreational marijuana as a permitted use, and subject to any OLCC or other rules and regulations. Nick explained that a conditional use permit is much more involved compared to permitted use. Concern was raised about setting a dangerous precedent, and current medical dispensaries being able to easily change to recreational. Another member felt he was hearing concerns that medical dispensaries might not have to meet regulations – but they would have to go through the same process as anyone else. Medical grows have never been licensed under the OHA – that starts now. It was clarified that right now, recreational production and retail is prohibited in Deschutes County. Some members felt that the business has already gone through the process – you may have to comply with new rules as they take effect, but the nature of the business isn’t changing, and if you have already complied then you should not have to go through conditional use. Suzanna Julber from the City of Bend said the City gave existing permitted medical marijuana dispensaries a year to change over to retail – a grandfathered time period – and they were not subject to some of the requirements for a new dispensary, such as the 100-foot setback. An applicant does not have to go through conditional use in the City of Bend, and it is treated like any other use in the retail zone. 3 The proposal was considered and no consensus was reached, as there were 4 red cards, 3 yellow, and 5 green. Josh did not participate. Lindsey Pate volunteered to write up the “yes” summary; Liz Lotochinski will write up the “no” list. Items to Consider for Retail Regulations The group considered a list of proposals for retail marijuana regulations that had been sent in advance by a member. No grandfathering of existing establishments. The group agreed that this had just been addressed. Limiting the amount of cash on site. The arguments were made that these locations may be magnets for crime and that law enforcement is more limited in the County. The suggestion was made that the cash on site be limited to $1,000. Nick said this would be very difficult to monitor and regulate. The County does not currently do anything like this for any other business. It was suggested that this amount is unreasonable and it is impossible to take cash every other hour to a secure place. The OLCC has systems in place for storing cash. It was stated that truck drivers carry more than $1,000 and restaurants have much more in their tills. To limit a business as to their on-site cash and ask the County to regulate it is unreasonable. A producer also felt this amount would be unreasonable – these businesses operate as cash only and are required by OLCC to have video surveillance and safes. The member who suggested the $1,000 limit withdrew the proposal to limit cash on site. Should be there be inspections beyond and above OLCC? Nick said that the County inspects to be sure that facilities comply with its own regulations. Unless they receive a complaint, they do not inspect for state building codes, fire codes, etc. Kevin Sullivan, Deputy State Fire Marshall, said that he enforces 2014 Fire Code. Once a building has received a certificate of occupancy, it is inspected on an annual basis. The proposal for inspections was withdrawn. Prohibit firearms on premises. Rural service centers such as Tumalo and Terrebonne were mentioned as possible locations where problems could arise with firearms on the premises. Nick asked County Counsel David Doyle if we could regulate firearms on private property. The County does have “no shooting” districts, but there may be a state or federal prohibition of firearm regulations on private property. A member asked if a business owner could ban firearms on his or her own premises – the shop owners should be able to protect themselves but may want to prevent others from bringing guns into an establishment. In Oregon, anyone with a concealed handgun license can pretty much go anywhere they want. The member who offered the proposal withdrew it. No outdoor patio space; no loitering. A proposal was made that since the product cannot be consumed outside, there should be no loitering allowed on the property. Potential enforcement issues were discussed. A member wondered if a marijuana retail facility could also sell food that could be consumed in an outdoor patio space. A member asked whether an employee taking a smoke break outside would be considered loitering. County Counsel said loitering prohibition is a lightning rod for a lawsuit against an owner for free expression. The County would be at risk if it starts ascertaining what is and what is not loitering. In any case, code enforcement could not respond for most likely a few days. The proposal to prohibit loitering was withdrawn. Discussion continued about outdoor patio space. Nick 4 said “premises” might be a group of stores. One member discussed a potential problem of youth loitering in front of an establishment if there are visible chairs outdoors. Perhaps it would be less of a problem if a patio area were not visible from a public area. Another member asked what would happen if someone brought a dog or wanted to take advantage of some community space instead of waiting in a car for a customer; and said this seems unreasonable. Current liquor store configuration was considered and whether they have public areas; there are growler fill-up areas, restaurants, etc., which have obvious open areas for the public to congregate. The following proposal was considered: “No public outdoor patio space for marijuana-only retailers, that would be visible from the public view. Consensus was not reached, as there were 8 red cards. Liz will write the “yes” summary; Lindsey is writing the “no” summary. No samples. No free samples are allowed between the retailer and consumer, though they are allowed between a wholesaler and retailer. The proposal was withdrawn. No open containers. Packaging was discussed. Currently, after a sale, the marijuana product goes into re-sealable childproof packaging. No open containers are allowed on the premises. OHA and OLCC regulations cover this. As of April 1, the OHA and OLCC have to approve packaging. The proposal was withdrawn. Other youth-oriented centers. A proposal was made to add to the list of locations that must be 1000 feet from a marijuana retail or dispensary operation. The proposal included community centers, churches, and fellowship halls because they have programs for children and youth outside school hours. It was mentioned that some of the fellowship halls and other locations are not youth oriented and may only involve adults. One member thought it reasonable to include those organizations whose primary purpose was youth activities, but it may be unreasonable to include churches whose primary purpose is not youth. The proposal was amended to add to the list only churches. Consensus was not reached, as there were 6 red cards. Sam will write the “yes” summary; Alison will write the “no” summary. IV. MAC INFORMATION REQUESTS FOR PRODUCTION AND PROCESSING The group discussed a list of information requests from a member, in order to ascertain whether a large group of the MAC members were interested in the information. None of them was requested by more than one or two members. County staff emphasized that information requested that was simple to provide or requested by a large group of MAC members would be provided, to the extent possible. Results of investigation into fire/explosion incident on 19555 Pinehurst Road. The difference between OSHA requirements for businesses with employees versus what individuals can do on their own with flammable substances. Presentation from DEQ on marijuana waste. Matt and Nick said that DEQ and OARs would regulate most of the waste management for marijuana. Presentation from fire district to explain their capability to handle potential incidents. The 2014 Fire Marshall Code already has regulations in place surrounding flammable and combustible materials – they are clearly defined at the state level. 5 A County map highlighting all 80+-acre EFU parcels and, if possible, highlighting adjoining parcels to these 80+-acre EFU lots if there is a zone change. One member said that parcels of land were divided into much smaller parcels than was originally intended by the state lawmakers as they relate to agricultural crops. Matt Martin said the County has seven districts throughout the County; in 1992 there was a commercial farm study commissioned that established minimum acreages. Eighty acres is a statewide minimum lot size; Deschutes County can go below that. For example, Tumalo/Redmond/Bend has a minimum of 23 irrigated acres per parcel. It was suggested that reasonableness be considered for everyone – at any time there could be a marijuana production site that could be located on adjoining land and becomes a nuisance to adjoining neighbors. One member felt that the group should look the County’s rules and regulations as a guideline for what is reasonable. Several members felt a map would be helpful. Nick pointed out maps on the wall this evening that show parcels of 20 acres and larger. IV. DISCUSSION AND CONSENSUS BUILDING ON MEDICAL AND RECREATIONAL MARIJUANA REGULATIONS – PRODUCTION AND PROCESSING IN EFU One member asked the committee to acknowledge that there are producers who are great neighbors and those who are not, as well as the special needs for medical users. Some medical marijuana producers may not wish to convert to recreational marijuana, and if not, their non-profit status and their commitment to patient care might entail a lesser amount of regulatory oversight. Medical is regulated by OHA. Nick said that Clackamas County had one set of standards for medical and recreational, and they then exempted some medical operations. He suggested that this would be more reasonable to enforce than different standards for each. The OHA licenses and regulates dispensaries and has been diligent about making sure those facilities are operating under their regulations. They have shut down “bad actors” and will continue to do so. Medical growers have to apply to the state and are regulated by the same. Non-Conforming Uses County Counsel Dave Doyle spoke about nonconforming uses. The regulatory licensing will be covered by recently passed HB 1598, which allows medical sites to convert to recreational without a land use compatibility statement. Modification or expansion of use will trigger County land use regulations. Some of this will have to be determined through the courts. Mary Orton asked about standards for odor, lighting, and screening – could they be applied to existing medical marijuana production and processing sites? Dave said that HB 3400 allows jurisdictions to impose reasonable regulations. HB 1598 carves out right-to-farm. This will be sorted out through our local circuit court and then the court of appeals, in all likelihood. HB 1598 also carved out setbacks – if a recognized grow site existed on 1/1/2015 for OHA, it will not be subject to additional setbacks even if it converts to recreational marijuana. This may be limited to indoor production sites or conversions to small outdoor production sites. Nick said that for existing medical marijuana production sites not converting to recreational, the first thing they would have to do in a non-conforming use application is prove they were lawfully established. This would be subject to site plan review and a finding that the alteration will have no greater impact on the neighborhood. Dave Doyle said that noise and impacts could still be regulated under HB 1598 as long as the local regulations are reasonable. Marijuana is still a farm crop but no longer under right-to-farm. 6 Overview of Processing and Production Matt Martin discussed materials in the packet from Meeting #3. Originally, there was a proposal to differentiate between two types of processing including Type 1, which was harvesting of the plant and preparing it for delivery. The County has since learned that these operations are included in the definition of farm use. The current County definition of processing includes converting cannabis products into edibles, extracts, or concentrates. Home Occupation The committee discussed marijuana production and the matrix in the meeting packets. They considered the Planning Commission recommendation to prohibit home occupations involving production and processing. Provisional consensus was reached to prohibit production and processing as home occupations. Lot Size/Parcel Size The proposal that was the Planning Commission recommendation was considered: that there be a minimum parcel size in EFU for production of 20 acres, and no minimum lot size for processing. Steve noted that this recommendation was arrived at after public testimony; the Planning Commission felt this would allow some appropriate setbacks. One member felt that a 20-acre minimum was not reasonable if odor, noise, and other potential disturbances could be mitigated with regulations. Matt Cyrus noted that the right-to-farm statute was intended to protect agricultural zones for future crops and changes in technology. It was intended to prohibit someone buying a house and telling someone else they could not farm a certain crop on the adjoining property. EFU is for industrial agriculture; MUA is the transition between residential and farming. EFU was supposed to specifically protect agriculture. One member felt that farmability of small lots should not be considered. Another member felt that it is not fair to be able to have a winery on 15 acres while 20 would be required to grow cannabis. Lindsey distributed a diagram she had created that she said demonstrated that lot size was less important than setbacks in protecting a residence on an adjoining parcel. The legislature considers EFU farmland and this is an agricultural crop. Another member felt they should focus their energies on setbacks rather than lot size; several members said that nuisance mitigation should be discussed first. It was agreed by committee members that minimum lot size be considered last. Odor Possible odor regulations were discussed for production and processing in EFU lands. A proposal was made to adopt the Planning Commission’s recommendations. One member wanted to distinguish between indoor and outdoor production sites. Right now, if a greenhouse does not have artificial lights, it is considered to be outdoor. If it is economical in Central Oregon to only grow marijuana indoors, the group should propose regulations requiring that. The group discussed the Planning Commission’s recommendation that the odor regulations be applied to buildings and greenhouses. One member asked if it would be considered an outdoor facility if it did not have electricity. Hoop houses were discussed as a viable way to produce cannabis in Deschutes County. Nick said this is a threshold question – do we require controls for anything that is not a garden? One member wanted further clarification. Another member felt that it was impossible to control odors in an open hoop house; another member said that Clackamas County includes those in the definition of buildings. Some members felt the Planning Commission’s recommendations were 7 inadequate. A proposal was offered to accept the Clackamas County recommendations. Matt added that their standards apply specifically to buildings and not to buildings approved as part of outside production. Definition of Building The group decided to define “building” for the purpose of this regulation. A proposal was made that the definition of buildings and greenhouses would include any covered, enclosed structure. One member spoke about the impossibility of containing odors in an open building, or even one with just the doors open. A suggestion was made to consider setbacks to a residence for odor control. After discussion, the group reached consensus on the following definition of “building” from the Lane County regulations: “Any building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing.” IV. CONSIDERATION OF ADDITION OF TWO MORE MEETINGS The committee considered a request from the Board of County Commissioners that they consider a recommendation to the Board to add two more meetings to their schedule, in order to be able to get further with the regulations. All members except one agreed they should recommend two additional meetings.