Loading...
HomeMy WebLinkAbout2016-03-09 - Marijuana Advisory Committee Minutes MINUTES MARIJUANA ADVISORY COMMITTEE DESCHUTES SERVICES CENTER 1300 NW WALL STREET, BEND, OREGON, 97701 MEETING #5: MARCH 9, 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 and Matt Martin, Associate Planner. II. PUBLIC COMMENTS Jeff Glassburg testified about the scope of potential operations. This is a huge issue for the well-being of the rural community. The Planning Commission’s recommendations will have a devastating effect – 12.5 greenhouses on a 40,000-foot growing site (about an acre) is about 9500 outdoor plants. So on one parcel, 12 greenhouses, 9500 plants, and if you allow for multiple licenses the neighborhoods will be overwhelmed. The nuisance factor will expand and you could have over 50,000 outdoor plants in an area with uncontrollable odor. The areas will be uninhabitable – lights, traffic, noise, etc. Residency requirements have been repealed so you will see out-of-state individuals buying land and renters on properties who don’t care about its maintenance. It does not seem reasonable for the rural areas to bear the brunt of this. If you really care about the well-being of the County and its residents, limiting to one license per tax lot is reasonable. Ron Hobbs said that he has a grower across from his home and the property is an absolute dump. It’s killing his property value and making a mess of the neighborhood. This should be zoned in a business area instead of letting it run like a plague all over the place. III. OVERVIEW OF SB 1598 Nick discussed Section 2 of SB 1598, which was recently passed by the Legislature and signed by the Governor. This Section exempts existing medical marijuana operations from a land use compatibility statement prior to applying for a license where the grow site is 2 registered. Nick said that according to the County Counsel, these sites are not exempt from reasonable regulations and they are subject to the opt out (they cannot opt into recreational marijuana if the County has opted out). But the question is, how do we know where the existing sites are? The County does not have this information from the Oregon Health Authority – it is confidential and they will not provide it. The state is going to have to figure out how counties can comply with this provision. One member said he had discussed this with a police officer who said law enforcement could call OHA with a name and address for confirmation, but they cannot get a list due to HIPPA and other confidentiality regulations. “All applicable land use and building code standards” language from SB 1598 was discussed as it pertains to greenhouses, agricultural-exempt buildings, etc. Building Official Randy Scheid spoke about what the County regulates and how. Hoop houses (a rigid frame covered by a non-rigid material such as a fabric) would not withstand our regulations for wind or odor. The County has chosen to consider them “agricultural” and that they are for growing crops, and they are allowed through several exemptions in the Code. One says that shade cloth structures for agricultural use are exempt from permits. Another says that the County has the right to amend the Code in rural and remote areas for elements that work in Portland but do not work here. The County has chosen since 2013 not to require permits for hoop houses. They are not meant for human occupation and there are not large groups of people staying for long periods of time in them. One member asked whether a hoop house with electricity (not an extension cord) is subject to Code. Randy said these must have an electrical permit and meet those requirements, as would a hoop house with plumbing need to have a plumbing permit. They also have to meet setbacks and height limitations like any other structures. Nick said that the issuance of an electrical or plumbing permit does not authorize a building. The County is obligated to approve applications if they comply with state code. Sometimes they come in electronically over the epermitting system and they are issued without a site visit. The County does not know until getting a call to code enforcement that there is a problem. One member asked how that is enforced if a building permit is not necessary. Matt said that it would be discussed when someone comes in, or is accomplished through code enforcement. Peter Gutowsky discussed setbacks and structural permits. When someone applies for a permit, staff considers zones, uses, and setbacks. If a building does not require a building permit, the County has no way to track it. Permits in EFU, if agriculturally related, may be required to be issued by state law. The Landscape Management (LM) Combining Zone attempts to mitigate those structures that require a building permit along certain roadways and waterways. It is not intended to prohibit a permit but rather to minimize the impact of the structure as seen by someone on the river or a roadway, with use of earth tone materials, height limits, lighting requirements, and considering existing topography and planting. If someone puts up a hoop structure in the LM Zone, since it does not require a building permit, the County would not impose these requirements. Outside the LM Zone, the County does not have that authority. If it’s a barn, hoop house, or other exempt structure, the County doesn’t have the regulatory authority to review it. Nick said the LM Zone is one-quarter mile from the centerline of a road in each direction, limited to state highways and major arterials. For example, there is no LM Zone in Alfalfa. Nick said there is a distinct difference between structures with a solid wall and a hoop house. Randy said the word “greenhouse” is used both for a rigid structure and a hoop house, as well. 3 One member asked about the hoop houses on the road to Sisters, and how does that not violate the County’s concerns of protecting visual corridors? Peter Gutowsky said that it comes down to whether a building permit is required for those structures. If it does, then that permit will not be issued until there is LM review. But the LM Zone was not adopted to thwart development. Hoop houses don’t require building permits. Another member asked about setbacks and building sizes. If the Commissioners decide to opt in, could the County come up with regulations to fit the marijuana industry? Peter said staff would look at direction from this committee and from the Board, and regulations would potentially be discussed at a public hearing. The County could prepare regulations that are reasonable and understood by the general public. A question was raised about what constitutes an agricultural building. What if garages are used in close proximity to dwellings? Randy said that agricultural-exempt buildings are regulated by statute for agricultural and equine uses. They must be on a farm, in the EFU zone, and in a farm tax deferral. The statute was not written for hobbyists but for true farmers. Agricultural-exempt buildings may be approved or denied by the Building Official, who works with Planning to determine farm status. If the buildings are in the LM Zone, they are subject to LM review. Another member asked about hoop houses in other zones, and Randy said hoop houses are not regulated by building code. The size of the hoop house does not matter – it is not an occupied structure. A member spoke about needing electricity in hoop houses if odor control is required. If a permit is triggered for electrical, can we come up with standards to help mitigate other factors for residents? Nick said this committee would need to think about those questions – do they want LM review for anything other than dirt that is vertical? The LM Zone was created decades ago and did not anticipate as many structures as there are now. IV. DISCUSSION AND CONSENSUS BUILDING ON MEDICAL AND RECREATIONAL MARIJUANA REGULATIONS: PRODUCTION AND PROCESSING IN EFU Odor Mary reminded the committee that, at their last meeting, MAC members defined buildings for purposes of odor control as “any building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing.” Lane County regulations were considered. One member said there is newer technology than the charcoal filters mentioned there. Concern was raised about the section that specified that “the [proposed] design/schematic for the system must be stamped by a mechanical engineer that is currently licensed in the State of Oregon,” because these odor control systems are not manufactured in Oregon. Randy said that section means that the systems have to be certified by a licensed Oregon engineer but not necessarily manufactured in Oregon. The Oregon Mechanical Specialty Code mandates distances from property lines for exhaust vents, so permission may be required. The members discussed volumes of air being moved in buildings versus greenhouses. There is more air loss in greenhouses. Kevin Sullivan, Deputy State Fire Marshal, suggested the MAC would not want to adopt a regulation that specifically identifies charcoal filters when, in six months, a better system might be invented. He said both Fire Code and Building Code do allow fire code and building code officials to require an applicant to have a licensed/registered engineer provide technical documentation to prove that the systems work 4 and meet regulatory requirements. A MAC member said that most of the facilities in Colorado are using misting technologies along with exhaust fans, not charcoal filters. Another member suggested using language that gives options but is not specific, and suggested that close-by neighbors should be able to complain. A complaint from someone in another part of the County should not be valid if they are not directly affected. A suggestion was made to modify the Planning Commission recommendations to indicate that buildings shall be equipped with “effective odor control systems.” The need for a definition of “effective” was considered. Kevin added that other industries had dealt with this, and code says that if there are no standards set forth, nationally recognized or engineer- approved standards can be used. There may be multiple national standards that apply. A filtration system might have to meet an American Society for Testing and Materials (ASTM) standard, for example, which is nationally recognized. A suggestion was made for the County to hire someone to evaluate odors. Anonymity of the individual filing a complaint was discussed. Responsibility for court costs was mentioned, but these were stated by a member to be minimal, because they generally only allow a right to injunction and not punitive rights. Lori Furlong, the County Administrative Manager, said that the County’s Class A violations were recently amended to carry a fine of $2,000 each, and there could be multiple violations on one property. The court can also assess a per-day penalty. Lori said the County’s code enforcement system is complaint driven. Because of the large number of second homeowners, the County cannot tell someone they cannot complain because they don’t live nearby. She noted that the County cannot trespass when investigating a possible code violation. Nick and Lori discussed enforcement and the possibility of injunctions and jail time. Trespassing was discussed and how to proceed with complaints. Lori said the County needs evidence to go to court – they have to be able to smell something, see something, or hear something. Odor control objectives and possible technologies were discussed. Language was considered to indicate complaints would be allowed by persons of ordinary sensibilities if the odor interferes with enjoyment of their properties. The following proposal, based on the Planning Commission recommendation, was made: Buildings for production and processing in EFU shall 1. Be equipped with an effective odor control system that prevents unreasonable interference of neighbors’ use and enjoyment of their property 2. An odor control system is permitted if the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor. 3. Private citizen complaints about odor are authorized, as judged by persons of ordinary sensibilities. 4. The system shall consist of one or more fans. 5. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. 6. The filter(s) shall be rated for the required CFM. 7. The system shall be maintained in working order and shall be in use. Consensus was reached with all green cards. During discussion, one member suggested language regarding the systems having to meet ASTM or other nationally recognized standards. Nick noted that one of the key issues is that 5 it might be more expensive initially if the applicant has to get an engineer’s stamp; however, the County needs a clear and objective standard and cannot evaluate odor control systems. One of the members made a proposal for controlling odor outdoors by banning outdoor grows in the County. He said there is no logical way to control odors for outdoor grows, and people he has spoken to have said that it is not feasible to grow cannabis outdoors in Central Oregon. Nick asked if “outdoor grows” do not include hoop and greenhouses. The member proposing the regulations said that if odor cannot be controlled, grows would not be allowed. Another member asked if they were allowed to make a recommendation like that, and if that is not something we can require, could we say that growing without a building is a conditional use (which means neighbors would have input). Matt said there is a question as to whether the County can prohibit a technique of cultivating cannabis in EFU zone, however, the MAC could recommend it and see where it goes. Another suggestion was made to use the “reasonable person” rule, and if it causes a problem with neighbors, it can be shut down. Feasibility of outdoor grows in the County was discussed. Nick said he didn’t know if we could require outdoor grows/grows without buildings to be permitted uses. A committee member asked about getting neighbor approval on a petition. Nick indicated that the County did recently include language in the Code that if neighbors consented, a variance could be granted allowing changes in solar allowances. Nick said it is more difficult to impose regulations in the EFU Zone; the County can be more restrictive outside of it. It was clarified that the current discussion is only about production, not processing. The proposal to prohibit outdoor/no-building cannabis grow sites in the County was considered and consensus was not reached, as there were 5 red, 5 yellow, and 3 green cards. Larry will write up the “yes” arguments, and Allison will summarize the “no” position. A proposal was considered to allow marijuana grow sites without a building in EFU if they do not unreasonably interfere with the use and enjoyment of neighbors’ properties. A consensus was not reached, as there were 2 red and 11 green cards. Allison will write up the “yes” position; Sam will write up the “no.” A proposal was considered to allow non-building marijuana grow sites in EFU if the neighbors signed a petition to allow it. Nick discussed having written agreements between property owners and the problems that occur when ownership changes. Enforceability of reasonable standards may also be a problem. Consensus was not reached with 10 red, 1 yellow, and 2 green cards. There will be no write-ups. Existing Medical Marijuana Production and Processing Sites The discussion continued regarding production and processing. One member asked if the regulations under consideration would affect existing medical grow sites. Measure 49 was raised and laws that apply to it, and one member said that the County could pass retroactive legislation but then may have to provide compensation. Nick said the County Counsel believes the County can impose regulations on existing medical grow sites because state law now allows counties to regulate medical marijuana for the first time. Mary asked for confirmation from the MAC that all their provisional agreements and disagreements were intended to apply to medical and recreational marijuana, both existing and prospective, unless they specified differently. One member felt that they should be considered separately. After more discussion, Mary suggested that every time a proposal is considered, the group should specify whether it applies to existing medical sites. She also requested that MAC members let the group know at its next meeting whether they want to 6 apply any of the standards they have already considered differently for existing medical marijuana establishments. Noise Defaulting to the existing noise regulations in the Deschutes County Code was considered. Limiting the language to “within a building” was offered; Matt Martin said that the existing noise ordinance covers normal noise during daytime hours. Odor control fans louder than the limit of 50 dB (currently limited to 10 p.m. measured at the property line) are a continuous noise that may be a nuisance to neighbors. If the current limit is 50dB during daytime hours, what about fans running 24 hours a day? Matt said the current noise ordinance for EFU Zones allows noise during the day and not during nighttime hours. There are specific requirements. One member said that fan noise was unlike tractor noise, for example, because the fans would run 24/7. Nick mentioned that the Sheriff’s Department administers the noise control ordinance. The original noise proposal was considered, and consensus was reached with all green cards, as follows: 1. Marijuana processing and production sites in EFU shall comply with the Noise Control Standards of DCC 8.08. 2. Noise from mechanical equipment used shall not produce sound that, when measures at any lot line of the subject property, exceed 50 dB(A) anytime between 10:00 pm and 7:00 am the following day. This standard applies to existing medical marijuana sites, as well as any prospective sites. Lighting Considering the Planning Commission recommendation, Nick said the staff would prefer specified hours instead of the reference to “sunset to sunrise,” which would mean the time would change every day. One member requested striking of the words “to the maximum extent possible,” because the meaning is ambivalent. Nick said another issue for code enforcement in the rural county is that people are frustrated the County is not enforcing the dark skies ordinance, which does not apply “indoors.” The Jackson County regulations were considered and consensus was reached with all green cards, as follows, to apply to production and processing sites in EFU: 1. Inside building lighting used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. 2. Outdoor marijuana grow lights shall not be illuminated from 7:00 p.m. to 7:00 a.m. the following day. 3. Light cast by exterior light fixtures other than marijuana grow lights (i.e. security lights) shall not trespass onto adjacent lots. 4. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light- emitting part. 7 After discussion, consensus was reached with all green cards to apply this lighting standard to existing production and processing sites after one year. A member questioned whether this would apply to other growers of other crops. Nick said that would be decided by the Board. Access Jackson County’s language on access was considered, which says “a majority of property owners” must agree on access via a private road or easement. The Planning Commission’s recommendation mandates that “all” property owners must agree, which could allow one competitor to cause a problem. Other members said that there should be no limits to access. There are so many unpaved and shared roads in the County that it would be a huge issue to restrict access. One member said he had to share a legal right of access with a grow operation, and the traffic has increased at least 15-fold. He said access issues definitely affect the neighbors. A proposal was considered to adopt the Planning Commission recommendation for access to marijuana processing and production sites in EFU, substituting “a majority of property owners” for “all property owners.” Consensus was not reached with 7 red, 4 yellow, and 2 green cards. A proposal was considered to have no access restrictions to marijuana processing and production sites in EFU. Consensus was not reached with 5 red, 1 yellow, and 7 green cards. V. NEXT MEETINGS Nick announced that the Board of County Commissioners had agreed to allow the MAC to meet twice more. The next meeting dates were discussed because at least one member could not attend each of the proposed meeting dates. A process proposal was made that anyone who could not attend either or both of the next two meetings could send in a virtual red, yellow, or green card on any proposal after reviewing the minutes, and consensus was reached. Meeting dates of March 31 and April 7 from 4:00-8:00 p.m. were chosen as they were the dates that the most MAC members could attend.