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01/12/2015 - Minutes CITY OF TIGARD PLANNING COMMISSION Meeting Minutes January 12, 2015 CALL TO ORDER President Rogers called the meeting to order at 7:00 p.m. The meeting was held in the Tigard Civic Center,Town Hall, at 13125 SW Hall Blvd. ROLL CALL Present: President Rogers Vice President Fitzgerald Alt. Commissioner Enloe Commissioner Lieuallen Commissioner Middaugh Alt. Commissioner Mooney Commissioner Muldoon Commissioner Ouellette Commissioner Schmidt Commissioner Smith Absent: Commissioner Feeney Staff Present: Tom McGuire, Assistant Community Development Director;John Floyd, Associate Planner; Doreen Laughlin, Executive Assistant Also Present: City Attorney, Shelby Rihala COMMUNICATIONS - None CONSIDER MINUTES January 5th Meeting Minutes: President Rogers asked if there were any additions, deletions, or corrections to the January 5th minutes; there being none, Rogers declared the minutes approved as submitted. OPEN PUBLIC HEARING President Rogers opened the public hearing. PUBLIC HEARING SW 121st AVENUE PLANNED DEVELOPMENT PLANNED DEVELOPMENT REVIEW (PDR) 2014-00002; SUBDIVISION (SUB)2014-00005 MARIJUANA FACILITIES DEVELOPMENT CODE AMENDMENT DCA2014-00002 PROPOSAL:The City of Tigard proposes legislative amendments to the Tigard Development Code (TDC) to establish reasonable time, place, and manner regulations for marijuana facilities. Page 1 of 9 Proposed changes include new definitions to be placed within Chapter 18.120 (Definitions); text amendments to Chapter 18.210 (General Administrative Provisions) to remove a requirement that development be consistent with federal law; and creation of a new chapter to be titled 18.735 (Marijuana Facilities) that would limit hours of operation, establish minimum buffer distances from residential and park zones, require exterior design requirements to enhance security, establish off-site odor standards, and create an associated review procedure. The proposed text and map amendments for the Planning Commission's review are included in Attachment 1, and summarized in Section IV of the staff report: APPLICANT: City of Tigard ZONES: Citywide LOCATION: Citywide and properties identified in the staff report maps. APPLICABLE REVIEW CRITERIA: Statewide Planning Goals 1 (Citizen Involvement), 2 (Land Use Planning), 6 (Air,Water, and Land Resources Quality), and 9 (Economic Development); ORS 475 (Oregon Medical Marijuana Act); Statewide Ballot Measure 91 (Control, Regulation, and Taxation of Marijuana and Industrial Hemp Act); Comprehensive Plan Goals 1.1.2, 2.1.2, 2.1.3, 2.1.6, 2.1.11, 2.1.21, 2.1.23, 2.1.24, 6.1.7, 9.1.3, 9.1.12, 10.2.1 and 10.2.8.; and TDC Chapters 18.380.020 and 18.390.060.G. STAFF REPORT Associate Planner John Floyd introduced himself and went over the staff report. (Staff reports are available in their entirety on-line on the City Website one week in advance of the hearing.) He summarized the project using a PowerPoint Presentation (Exhibit A) STAFF RECOMMENDATION Staff recommends the Planning Commission find in favor of the proposed development code text amendments (Attachment 1 (Exhibit B);with any alterations as determined through the public hearing process, and make a final recommendation to the Tigard City Council. QUESTIONS FROM THE COMMISSIONERS Commissioner Muldoon: "Can you speak about the overlap or how the city regulations mesh with county and the OLCC [Oregon Liquor Control Commission]?" In terms of the OLCC —those really haven't been developed yet. Typically what happens is City staff has to sign off a land use compatibility statement certifying that the proposed facility meets local regulations before the state will issue their own license. At this point, it's hard to say but there is coordination that that will happen. The OLCC regulations are meant to parallel liquor regulations. So right now there's a fair amount of coordination high level. It's typically multiple departments the city would have to sign off as well— the police department and the planning department. In terms of Washington County,in the staff report on page three, I address Washington County regulations. Our hours of operation are slightly more restrictive —they allow 8am to 10pm— as proposed—it's a little bit tighter. We are separate jurisdictions so their regulations only apply to unincorporated areas. They also limited it to specified zones and added a couple of buffer areas which we didn't include — one was a 1500 ft buffer from any light rail platforms and a comparable regulation would be a buffer from our downtown transit center. They also required a minimum of 2000 ft between dispensaries. Those are a little more expansive than what's proposed here. They also include requirements for exterior lighting and for visibility of the primary entry. So those are comparable as well. Our land use regulations are distinct and separate from their land use regulations. Commissioner Middaugh— "Could you clarify the definition of Marijuana Facility? I see that it includes the production but I also heard you say that growth sites are general Page 2 of 9 industrial..." Yes, there are a couple of different things here. In this case the marijuana facility is a place that requires a special state license or registration. For example, a growth facility, in terms of development would fall under a "general industrial use" classification. That would establish what zones it's applicable in—how large it can be —how much parking it requires, etc. It's also a Marijuana Facility in that it also has this sort of special status with the state and therefore we also want to account for special potential impacts that may be associated with this type of industrial facility. It's a layering sort of system. "Okay— so the growth site would be "General Industrial" as well as a Marijuana facility?" Correct. Commissioner Fitzgerald had a question about measuring the distance from a property line. "So if there was a dispensary that was at the corner of 72nd and Lower Boones Ferry, that regulation of a 500 or 1000 ft buffer would not apply?" It would apply but it would not hit a parks zone... "My question is if it's up against another jurisdiction— and I was using this as an example because we see Tualatin's name on it... pretend the zoning would allow it— and there was a facility in Tualatin at the corner of 72nd and Lower Boones Ferry—the limits of the 500' buffer don't start at that property line and go into our jurisdiction... I'm trying to understand the definition of the buffer zone when we're against another jurisdiction." I think when we're against another jurisdiction, state rules would come into play— so for example, medical marijuana dispensaries would have to be 1000' from each other regardless of what jurisdiction they're in. A facility in Tualatin, say 100' from our border - that would reach 900' into the City of Tigard— so in those cases, the buffers would reach in. The amendments proposed do not reach outside the City— or facilities that don't reach in. It's a self-contained sort of system. There are plusses and minuses to that. "What's the measuring guideline for the state rule? Is it by retail storefront — or is it by property line?" It's by property line. Commissioner Ouellette: "In reference to removing the term "federal law" from the requirement of 18.210.030 - I understand it was addressed in reference to this situation but blatantly removing that term as applications over any other possible developments... I guess —forward thinking... does removing that term have any other implications that that could affect?" Well, permits are still required from the state and from the Corp. of Engineers — so it doesn't remove some of those requirements. We also have things like Intergovernmental Agreements and developers are still responsible for complying with those requirements as well. But other jurisdictions have a go with this language and no major issues yet to my knowledge. The City Attorney can speak to that if you want. City Attorney Shelby Rihalla came up to address that question "No, the issue was specific to this that brought about removing that language. It was more of a policy - type guidance— more of a feel good statement in this case. So any requirement - like Federal Environmental, Federal Safety, is still going to be governed by other code provisions. It was more of a feel good kind of statement in this provision, as opposed to a guiding principle of law. Commissioner Lieuallen: "How are we accounting for apartment complexes?" There are a couple of things —many are located in residential zones — for example the R12 & R25 zone — but,if they're located in a mixed-use zone—we have single & multi-family properties inside the mixed-use zones. They would potentially be in the area not subject to the buffer requirements. The state presently allows medical marijuana dispensaries in mixed-use zone and if they're located in mixed-use zones more than 500' away from a residential zone or a park— that could Page 3 of 9 occur. For example the area between Washington Square and Metzger has a lot of apartment complexes. "I'm looking directly here in the middle of your Tigard Triangle —you've got an apartment complex located just about behind the Lowes facility, which would take a big swath out of the circle there... if we were trying to keep away from apartment complexes where people live... and there are children and..." Correct. So for example, if the code were crafted to be 500' away from a residential land use— that would create a buffer around that apartment complex —but for now it's crafted so that it's only around the zone. So that is a policy question. Is the Planning Commission comfortable having residential land uses near marijuana facilities inside of a mixed-use district?There are different expectations inside the zones than say in a residential zone - so it's a policy question. But in this example in the Triangle — that might occur switching to the Washington Square/Metzger area - it looks like that is unlikely. "The other one I noticed here was... Don't we have a park right across the street from the old Payless complex across from McDonalds next to the..." We actually had to revise the maps on that one. There is a park there at the end of Main Street where it hits 99W and just across — behind the slope on the north side of 99W- there's another small park. Those are both entirely in the ODOT right-of-way. Those are parks - but they're not really lots or parcels — they're just a part of the road right-of-way. It's a legal distinction, but we actually caught that recently so we had to revise the map. It opened up more of downtown than we expected initially. The City does not have adopted park boundaries necessarily— that's why we chose to go from the lot boundary as opposed to the park boundary. It makes it easier to measure. "And also—the comment we had earlier about not paying attention to —when we're deciding our own buffers —for example, right at the edge of the City of Tigard on Upper Boones Ferry Road - there's an apartment complex that's right up against our property line there."Yes, that's a question the Planning Commission can consider—Do we want to account for land uses outside the City? It would create some potential additional staff time in terms of that and also potentially... "I care about the children there as much as I care about the children three feet this side of the line." I understand that. It's a policy question and we can certainly go there. "You gave us a great run-down on all the hours run by every individual liquor store in the State of Oregon but my understanding is the OLCC does not set these liquor store hours. They have an opening hour set at 7:00am and a closing hour set at 10:00pm - and they require the liquor stores to be open a minimum of 8 hours a day—but they don't set these liquor stores hours. So when we're using these liquor stores —these are just the agents themselves that are deciding what hours to set. So if we're going with that we should be setting 7:00 — 10:00 and letting the individual agents set their own... I mean if we're just following OLCC — that's how they're running it." The goal there was to find out what was deemed reasonable by the business community and I think most of the stores appear to be opening mid-morning and closing about mid-evening..."Probably based on business —where they're making enough sales to stay open—if they're making sales in the morning versus the evening. I'm just not sure we should be getting involved too deeply in that. That's a business decision. I think the OLCC recognizes that." From my conversations with the Police Department— they were very interested in having hours of operation restrictions on this. They were concerned about opening too early in the morning and too late in the evening. I can have them return to you... There were some further questions about marijuana dispensaries and their link to an increase in crime; security, policing lots, denying consumption on the premises, fine structures, etc.John Floyd answered that this could all be looked into. Page 4 of 9 Commissioner Ouellette —wanted to know if portable structures are considered a permanent building. "For example — some elementary and middle schools have a "portable" - if someone were to put a building like that on an empty lot —would that be considered a permanent building?" That may be something we want to define. That's something the code does not have a definition for—that's something we could add. TESTIMONY IN FAVOR— Robert Graham—Attorney, 236 NW E St., Grants Pass, OR 97526 spoke for a group of more than 4 people who were present and was given 15 minutes to speak on their behalf. He said he represents clients throughout the state who are involved in the medical marijuana and recreational marijuana endeavors. He said he also represents the Oregon Candidate Business Council which has about 100 members throughout the state. He said medical marijuana patients generally work—and have lives — so the convenience of the hours is important. He would like the dispensaries track what the liquor store hours are. He stated that the regulations of the medical marijuana facilities are very rigorous. The only thing more rigorous about getting into a medical marijuana facility is going through TSA. You do not get in unless you have a card— or if you're under 21. Minors just do not have access. He spoke about the extensive security. He recommends reducing the buffer zone from 500 feet to 100 feet—but keeping it in the high traffic areas so they're more visible. He talked about good signage —he believes there should be regulations so these blend in. There are a number of facilities that are signed so you can hardly tell what they are — for instance there's one called a "Patient Resource Center" —unless you know it's a dispensary—you wouldn't know. In a high traffic area—if you have the right signage, there won't be the impression that this is just a "head shop" row. He said you owe it to your community to make sure it fits in from a signage perspective. He went on to speak about the OLCC & the OMMA (Oregon Medical Marijuana Act). He spoke about possible yearly licensing fees, things of that nature. He summed up saying "I want to leave you with this, the people involved in this business are making large commitments of capitol. I don't think there's a single dispensary in the state — even down in some rural areas that— at least a quarter of a million dollars is required to really get a dispensary off the ground—and much more. So the people who come in and apply—they are very serious. This is business. A lot of people's hard earned assets are being invested. They're not going to try to cut corners. They're going to do this the right way within the rules. It's a good community of people. Thank you for your time. QUESTIONS Commissioner Fitzgerald: "You made reference industry regulation. Can you speak more of how a dispensary actually operates and what they have to put in place?" There are extensive security requirements (of the state — the regulations of the Oregon Health Authority (OHA) of which the OLCC will draft its own rules and regulations which will probably track the dispensaries. They are enforceable). They need video cameras. There are panic buttons inside during normal hours —in multiple locations, there has to be a recording of the video of the people and the transactions — that has to be maintained for 30 days. Even if they get complaints about rules not being followed... the OHA can come in with their enforcement people and look at the video and see the transaction at issue. Commissioner Lieuallen: "You mentioned a fee that your industry would be okay with— what would be a fee you would feel comfortable with?" Given everything, I think a fee— a minimum of$1000 —and it has to be reasonable. There are some communities that are imposing Page 5 of 9 a sales tax. Gold Hill—they've imposed a sales tax. There's nothing to allow it into the statute — but nothing to prohibit it either. There's a number of alternatives for those fees —in ways that are reasonable. "Are there things like time-lock safes that could reduce the risk of cash on hand?" The cash is not maintained on-site. A minimal amount of cash is maintained at the facility. The banks are where the money is and they're in safe deposit boxes. "What's a ballpark figure of the amount of cash a building has on-hand at any one time?" If they are using the safe deposit boxes, which I advocate to all my clients, you may have $5000 cash on a given day at any one time. Usually what happens if they get a lot of cash on hand they make a run and put it in a safe deposit box. There are requirements for safes at the facilities as well. Any cash or product that's left over at the end of the day has to be put into safes so if somebody breaks in—they've got to be able to crack some pretty big safes. They're using big gun lock safes —bolted to the floor. Commissioner Muldoon "You mentioned about controlling signage —what was the basis for being able to do that?" By the cities? "Yes." Time, place and the manner of which that's done; I've heard there's some concern about regulating that and they would cross over into the area of free speech. This is "commercial speech" and the bar for commercial speech is far lower. I would submit to you that if you had a reasonable basis for your signage regulation it wouldn't be challenged— and the chance of being successful at challenging it is slim to none. He said the potential for litigation would come if they adopt a restrictive buffer that, in essence, creates areas where you just won't be able to operate. A 1000' buffer from residential or parks —I think you'd end up with a situation where you're zoning out the potential for anybody to open up a dispensary. In that case, you probably would be subjecting the community to litigation; if,in fact, it was a deliberate effort to zone out a dispensary. Commissioner Smith asked some clarifying questions about who Attorney Graham represents —is he talking about only medical marijuana— or also retail, recreational marijuana? Attorney Graham clarified that he also represents recreational marijuana and the 100 foot buffer zone that he advocates is also for recreational marijuana. TESTIMONY IN OPPOSITION Julie Russell, CPO 4-B Chair of 12662 SW Terra View Drive Tigard, OR 97224 — spoke on behalf of a group of four or more who were present. She said she is speaking as a personal citizen, as a business owner who also owns a building in Tigard, as well as her husband. She's a marriage and family therapist and works with a lot of people who have addictions and many of them started with Marijuana. She is also a board member of Tigard Against the Tide and went over the written testimony that was provided earlier (Exhibit C). She stated her case that the scientific evidence shows that in the developing brain Marijuana can cause damage and can cause increased mental health issues. She noted that there are some youth who have developed schizophrenia after using Marijuana just one time. She said many kids self medicate by using Marijuana. She said it's important to protect them and that, just like with alcohol, some of the teens have their brothers or older friends buy it and then give it to them. Ms. Russell concluded that what they've learned from underage drug and alcohol use is: • Increased access • Increased public opinion that "this is okay— and safe" increases the use in our youth— and that's what we're concerned about. We want to protect them as much as possible. Page 6 of 9 Morgan Chamberlain— 9360 SW Martha St., Tigard— a junior at Tigard High said she is the Secretary of"STUDD"—which stands for Stop Tigard Underage Drinking and Drug use. Our goal is to educate our peers so that they will choose to live a healthy lifestyle that is free from drugs and addiction. We also travel to elementary and middle schools educating them and encouraging them to live drug free. She said she sees first hand every day the effects that Marijuana has on her peers at Tigard High School. She supports the strict regulations on Marijuana facilities — especially the distribution of"edibles." Marijuana infused products that are targeted towards her age group should be prohibited. Even now, they are commonly seen in high schools and she strongly supports the position that edibles should be made as difficult to buy as possible. She said they are viewed as "normal, non-harmful" things to eat by her peers. She said she may not be a lawyer... but she's a teenager and from a high-schooler's perspective she feels the most important issue to address is how we're going to regulate the distribution of Marijuana so that underage people will have a harder time obtaining Marijuana than before. She passed out additional concerns they have about marijuana dispensaries. PUBLIC HEARING — CLOSED No further testimony or questions from the audience are allowed. DELIBERATION The commission deliberated at length with many commissioners weighing in: Commissioner Smith: "It's legal—it should be allowed in the City but it should be much more restricted than I believe the proposed amendments are. The multi-family residential is the one that just jumps out at me. There's a long list of... residential, parks, playgrounds, schools, libraries, daycares, light rail platforms, bus stops,YMCA's, youth centers, rec. centers, hospitals, medical office buildings, arcades, kids learning centers, youth books stores, churches —that's a great place for kids to be —I don't see any restrictions about it being near churches. Even McDonald's playgrounds —kids hang out by there all the time. There's just a number of places that this doesn't address. Even the Regal cinemas near Winco and Costco... I know as a kid I always went to the movies without my parents —they'd drop me off and we watched movies - even the mall." He wonders if it shouldn't just be a "this is where it's allowed period". Commissioner Fitzgerald: spoke about it being a fine edge and that when you're talking about limiting exactly where someone can locate—it might be a better conversation to talk about limiting the licenses within the City of Tigard, rather than limiting the location to be that restrictive. She noted this is a tough issue. She said she thinks back to prohibition and how restrictive it was and now Oregon is one of the last states with the OLCC that regulates the selling of alcohol. She said that in modern times now we should be able to find a balance so that it's not totally restrictive but that there is some regulation. Our concern is for youth and safety. She thinks the building code addresses a lot of those concerns about dealing with the hash oil or butane causing explosions. She asked Commissioner Mooney (who is with the Tualatin Valley Fire Department) to speak about any concerns the Fire Dept had about the explosion issue. Commissioner Mooney went on to explain about a number of explosions that the Fire Dept had been involved in due to people using. He said mostly what he's seen is in multi-family dwellings where they're doing it in private residences. He noted in the winter time they take the process inside to try to speed things up. He's concerned about people doing butane hash oil in back rooms to try to make money and no one knowing about it until there's an explosion that blows out a back wall that may back to a residential area. Page 7 of 9 Commissioner Muldoon's number one concern would be signage. He would like discreet signage. Commissioner Enloe's input on the spacing restrictions was to ask whether the main goal is to detour young individuals — saying this is not an acceptable thing to do. He knows there's an age restriction but thinks they may be doing too much regulation on something that may be a parent's responsibility or the individual's upbringing as to what is right and wrong. He agrees with the signing and maybe an architectural review of the building to match the neighboring properties. But to say we want certain spacing or 1000' —he thinks that's in the wrong arena. That's trying to make it harder for youth to get hold of it when in essence - they're getting hold of it through illegal interactions. He doesn't believe making it difficult for businesses to come into Tigard is the right way because it is going to be legal. It should be reasonable. He doesn't want them in some back lot behind some industrial yard because that happens to be the one area that allows 1000' distance from everything. He would rather have it be on a main street, lots of eyes,where it's well lit and well watched. Commissioner Middaugh said he pictures a growth site as a place where marijuana is grown outside. He appreciates Ms. Russell's comments on addiction and mental health. He's concerned that we might be encouraging addiction and in creating a place where people that have a marijuana addiction can turn to desperate measures. He thinks the proposed wording doesn't include daycares and would like a buffer zone with the daycares as well. Commissioner Schmidt thinks they shouldn't allow it to be in residential areas or even mixed-use areas —anything that has a residential occupancy in it. When it comes to personal use—that's your personal choice to do so —but to have a retail establishment near a residential area seems wrong and out of character with our community. He doesn't think they should be near schools, daycares, any types of facilities that cater to children. Commissioner Lieuallen noted that it's a legal product and that it's up to the parents to teach their kids their values when it comes to this product—just as we teach them about alcohol. We won't hide it from kids by burying it. He's less in favor of large buffer zones and more in favor of more reasonable buffer zones in the 300' range. He would like minimum signage that is as bland as possible—without affecting people's rights to free expression. He'd be in support of that. He would like additional security requirements for these businesses that we don't have for other businesses to minimize the crime potential. He thinks something must be done about the edibles but believes that should be at the state level. President Rogers said there is a lot to consider. Health and safety for children and the elderly; beautification of our city; baseline standard to protect the public; separation of these types of businesses that produce flammable and explosive things need to be fairly strict to protect the public. He's for the 500 and 1000' buffers. He's concerned about signage and so many other things. So far as he's concerned he doesn't have enough information to make a decision at this point. He wants to see some overlays, some sign language from staff... he asked if any of the other Commissioners had anything else they need or did they have enough information to make a motion. Commissioner Ouellette said he'd like an example of a permanent building definition to avoid unintended consequences. Page 8 of 9 The consensus of the commission was that they'd like a continuation. They went over the various things that they would like staff to come back with by way of"homework"- some of which were: • Request for 1000' buffer / 300' buffer in terms of overlay showing affected properties • Information about OLCC & OMMA rules for security • Mixed-use zones—potentially removing those where residential occupancies are • Signage • Language that addresses any zone that has a residential component—whether it's mixed- use or otherwise • Daycare buffers • Security requirements • Permanent building definition • Re signage -words but not pictures • Zones that would allow residential by conditional use... how would we address those pieces? • 300' buffer versus 1000' buffer... a visual of the two standards would be helpful • A straight zoning map so we can say these are outright residential The City Attorney gave an overview of the free speech law. You cannot regulate on the basis of content (Article 1 Section 8). Size and materials is really all you can regulate signs from a 100% safe legal position. If you're talking colors,words, pictures—those are all going to be seen as regulating the "content" of the sign because "you're treating me with my marijuana leaf on my sign different from me, as a baker, with a cake on my sign." That's the challenge. There was more conversation about various other problems that could arise. It was decided to end the meeting for now and to continue it to a later date. CONTINUED HEARING TO FEBRUARY 9, 2015 OTHER BUSINESS —None. ADJOURNMENT President Rogers adjourned the meeting at 9:40 p.m. vc -�. Doreen Laughlin,Planning Comsion Secretary y ATTEST: President Jaso r, Rog Page 9 of 9 2/3/2015 C I T Y OF T I G A R D Respect and Care I Do the Right Thing I Get it Done t1 ;u MARIJUANA FACILITIES D CA2014-00002 Planning Commission I January 12,2015 C I T Y O F T I G A R D Project Summary / Text Amendments to Title 18 (Development Code) / Initiated at Council direction 1 Regulate full chain of production/sale Adaptable to evolving State rules Establish consistency between medical/recreational Deadline: May 1, 2015 / Applicable to any facility requiring state license or registration / Future amendments possible/probable 1 2/3/2015 C I T Y O F T I G A R D Legislative History 1998- Medical marijuana legalized in Oregon 2013 - State authorizes marijuana dispensaries 2014- Tigard adopts temporary moratorium Tigard adopts local marijuana tax (TMC 3.70) Measure 91 legalizes recreational marijuana C I T Y OF T I G A R D Future Action Dates May 1, 2015 End of temporary moratorium July 1, 2015 Possession/use of recreational marijuana becomes legal Jan 4, 2016 OLCC accepts applications for four types of commercial marijuana licenses 2 2/3/2015 C I T Y O F T I G A R D State Regulations ➢ Medical Marijuana Dispensaries Minimum 1,000 feet from school site Minimum 1,000 feet between dispensaries Limited to Commercial,Industrial, Mixed-Use zones s Must be separate from grow-site ➢ Recreational Facilities r Unknown—OLCC to develop Measure 91 does not affect Medical Dispensaries State Legislature likely to adopt new regulations C I T Y OF T I G A R D Community Outreach - Methods 1 Council town halls Website / Cityscape Articles / Online Citizen Forum / Survey of Business Owners / Interested Parties List— Email Outreach / Conversations with industry& real estate representatives 3 2/3/2015 C I T Y O F T I G A R D Community Outreach - Response / Low response rate / Roughly split between support and opposition / Common response was "wait and see" / 300 Business owners polled / 34 responded / Marijuana investors/operators most interested in Highway 99W (Pacific Highway) Portland market described as saturated C I T Y OF T I G A R D Do you foresee the presence of recreational marijuana shops as having a positive or negative impact on your ability to do business in Tigard? Positive 5.9% Negative 20.6% Both Positive and Negative 8.8% No Impact 64.7% Unknown 0.0% 4 2/3/2015 C I T Y O F T I G A R D Should the City of Tigard regulate the design and operation of marijuana facilities? Yes 60.6% No 24.2% Unsure/Unknown 15.2% C I T Y OF T I G A R D If the City were to adopt local regulations, would you support regulations for one or more of the following? Support Neutral Oppose Odor Controls 19 9 2 Limits on Hours of Operatior 19 7 4 Minimum Buffers 22 6 3 Security Requirements 21 5 3 5 2/3/2015 C I T Y O F T I G A R D Potential Community Impacts / Exposure/Diversion to minors / Unpleasant odors (particularly grow facilities) / Noise / Crime associated with cash /controlled substances / Noncompliance with codes / Explosions from processing agents / Increased calls for service (fire, police, code enf.) C I T Y OF T I G A R D 18.120 - Definitions / New definitions: ® "Marijuana" I "Marijuana Facility" / Mirrors language of Marijuana Tax (TMC 3.70) / Includes commercial and public uses 6 2/3/2015 C I T Y O F T I G A R D 18.210 — General Administrative Provisions / Existing code prohibits issuance of ANY permits for development associated with marijuana / Amendments remove federal consistency requirement / Reduces legal uncertainty / Distances Tigard from Federal/State conflict 1 Reduces risk of litigation / Increases certainty for investors/property owners 1 Removes incentive to avoid permits C I T Y OF T I G A R D 18.735 — Marijuana Facilities / New chapter / Applies to any commercial or public facility 1 State permit or registration is trigger Establishes local uniformity for medical/recreational Not applicable to personal grow/use / Additive to underlying use/zone regulations 7 2/3/2015 C I T Y O F T I G A R D 18.735 — Review Process / Type I Review ► Minimum compliance review ► Requires "clear and objective" criteria ► Not locally appealable / Ensures minimum compliance review—even when no change to underlying use or structure C I T Y OF T I G A R D 18.735 — Hours of Operation / Commercial hours limited 10am—8pm / General Industrial uses exempted Growing I► Processing / Comparable to existing liquor stores in Tigard and adjacent towns / Comparable to adopted marijuana regulations for Salem, Ashland, and McMinnville 8 2/3/2015 C I T Y O F T I G A R D 18.735 — Buffer Requirements / Minimum Buffers k 500 feet from residential and park zones ® 1,000 feet from specified schools(recent change) / Measured from property lines, not structures / Maps (Attachment 2) ® Compares state dispensary buffers to proposed ® Biggest difference along Pacific Highway C I T Y OF T I G A R D 18.735 — Design & Operations / Odor Limits / Entry Placement / Security Lighting / Permanent Structures Only / No Drive-Thrus 9 2/3/2015 C I T Y O F T I G A R D Public Comments / Gayle Allen No dispensaries on Pacific Highway / Tigard Turns the Tide ► Increase buffer to 1,000 feet ► Include private libraries and preschools as buffered uses ► Prohibit dispensaries in industrial zones—incompatible with adopted Strategic Plan ► Prohibit Hash Oil/Production ► Prohibit production/sale of edibles C I T Y OF T I G A R D Public Comments / Citizen Participation Organization 4B ► Limit number of license ► Limit number of dispensaries to one (1) / Increase 500 foot buffer to 1,000 feet Confine dispensaries to Industrial Zones ► Prohibit Hash Oil Production in City Prohibit production/sale of edibles / Require frosted windows and prohibit photos on signs ► Prohibit Public Consumption 10 2/3/2015 C I T Y O F T I G A R D Staff Recommendation Staff recommends the Planning Commission find in favor of the proposed development code text amendments (Attachment 1); with any alterations as determined through the public hearing process, and make a final recommendation to the Tigard City Council. 11 Attachment "1" CITY OF TIGARD MARIJUANA FACILITIES PROJECT PROPOSED DEVELOPMENT CODE AMENDMENTS DCA2014-00002 Staff Contact: John Floyd,Associate Planner 13125 SW Hall Blvd, Tigard, OR 97223 503-718-2429 / johnfl @tigard-or.gov Staff Commentary Introduction The Tigard Marijuana Facilities Development Code Project is a series of text amendments whose purpose is to bring the City of Tigard into compliance with State law. Proposed changes to the Tigard Development Code include new definitions to be placed within Chapter 18.120 (Definitions); text amendments to Chapter 18.210 (General Administrative Provisions) to remove a requirement that development be consistent with federal law; and creation of a new chapter to be titled 18.735 (Marijuana Facilities) that would establish time,place, and manner restrictions on marijuana facilities within the City of Tigard. How to read this report This document is intended to be read in book format,with proposed text amendments on the right hand page and staff commentary on those amendments on the left. The comments are intended to provide both clarity and future documentation as to legislative intent. Proposed changes are indicated by the use of strikcthroughs to indicate language to be removed, a double underline to indicate language to be inserted,and the use of red font to further identify the proposed changes. Commentary on Proposed Definitions Definitions to be inserted in Chapter 18.120 are based on language used in the recently enacted Marijuana Tax adopted by the Tigard City Council under Ordinance 14-02. Definitions have been crafted to try and address the full range of economic activity associated with the production, processing, distribution, transfer, and consumption of cannabis. TIGARD MARIJUANA FACILITIES PROJECT PLANNING COMMISSION DRAFT-JANUARY 12, 2015 2 Proposed Text Amendments CHAPTER 18.120 DEFINITIONS 18.120 Definitions 18.120.030 Meaning of Specific Words and Terms "Marijuana" -All parts of the plant of the Cannabis family Moraceae,whether growing or not;the resin extracted from any part of the plant;and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its resin, as may be defined by Oregon Revised Statutes as they currently exist or may from time to time be amended. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound,manufacture, salt, derivative,mixture, or preparation of the mature stalks (except the resin extracted there from), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. "Mari'uana Facili "—A comm-rci.l or .u.lic use or structur- ,here marijuana is .ro_u es processed, distributed, transferred, sold, or consumed. TIGARD MARIJUANA FACILITIES PROJECT! PLANNING COMMISSION DRAFT—JANUARY 12, 2015 3 Staff Commentary Proposed changes to TDC 18.210.030 would remove consistency requirement with Federal law, and thus reduce legal uncertainties presented to the City and applicants where state and federal law conflict on the matter of marijuana. Under existing code and the continued federal classification of marijuana as a Schedule II drug, the city would be required to deny all land use applications for medical marijuana facilities. This could also create legal uncertainty in situations where a facility wants to open in a location and no land use or building permits are necessary (i.e. conversion of an existing retail space to a state licensed dispensary). Another point of uncertainty exists in that Measure 91 requires a petition and election of the voters for a jurisdiction to prohibit recreational marijuana licenses. The proposed changes would remove those conflicts from local land use regulations. TIGARD MARIJUANA FACILITIES PROJECT PLANNING COMMISSION DRAFT—JANUARY 12, 2015 4 Proposed Text Amendments CHAPTER 18.210 GENERAL ADMINISTRATIVE PROVISIONS 18.210.030 Consistency With Plan and Laws A. Consistency with comprehensive plan and other local and state laws. Each development and use application and other procedure initiated under this title shall be consistent with the adopted comprehensive plan of the City of Tigard as implemented by this title and with applicable state mid fcdcral laws and regulations. All provisions of this title shall be construed in conformity with the adopted comprehensive plan TIGARD MARIJUANA FACILITIES PROJECT PLANNING COMMISSION DRAT T-JANUARY 12, 2015 5 Staff Commentary The proposed text amendments would result in a new chapter of the Tigard Development Code known as TDC 18.735 (Marijuana Facilities) that would establish specific development standards for marijuana related businesses. These standards are being developed as a standalone chapter due to the unique legal status and potential community impacts presented by this new land use. Section 18.735.010 establishes the purpose of the zone. In addition to the reasons listed, the specific community impacts this code is intended to prevent or mitigate includes the following: ➢ Diversion of marijuana to unauthorized cardholders, particularly minors, by avoiding the location of facilities near places where children live and congregate; ➢ Unpleasant odors associated with the growing,processing, and consumption of marijuana; ➢ Unwanted noise generated by visiting customers during early or late hours, and/or the constant hum of electrical generators and fans; ➢ Crime such as theft, burglary, armed robbery, and kidnapping that can result due to the presence of large amounts of cash, a product that can be resold for significant amounts of money on the black market, and potentially vulnerable users visiting the facilities; ➢ Threats to health,life and property resulting from facilities not constructed to code; ➢ Explosions resulting from the use of butane as a processing agent; and/or ➢ An undue burden placed on City and regional agencies who may be required to respond and address the community impacts listed above. TIGARD MARIJUANA FACILITIES PROJECT PLANNING COMMISSION DRAFT—JANUARY 12, 2015 6 Proposed Text Amendments CHAPTER 18.735 MARIJUANA FACILITIES Sections: 18.735.010 Purpose 18.735.020 Applicability 18.735.030 Approval and Enforcement 18.735.040 Development Standards 18.735.010 Purpose The purpose of this chapter is to: A. Protect the general health, safety,property, and welfare of the public; B. Balance the right of individuals to produce and access marijuana and marijuana derivatives consistent with state law,with the need to minimize adverse impacts to nearby properties that may result from the production, storage, distribution, sale, and/or use of marijuana and derivatives; C. Prevent or reduce criminal activity that my result in harm to persons or property; D. Prevent or reduce diversion of state-licensed marijuana and marijuana derivatives to minors; and E. Minimize impacts to the City's public safety services by reducing calls for service. TIGARD MARIJUANA FACILITIES PROJECT PLANNING COMMISSION DRAT T—JANUARY 12, 2015 7 Staff Commentary Section 18.735.020 establishes where the provisions of this chapter would apply. As set forth in this section, this chapter would apply to the whole chain of production and custody in both a medical and recreational context. The threshold for application would be the requirement for a state license or registration of the facility, and would not apply to personal exemptions. Section 18.735.030 establishes a Type I review process to determine minimum compliance with the development standards set forth elsewhere in this section. The purpose of this review process is to capture all new businesses entering or establishing themselves within the city, even in situations where no other land use or building permits are required. As a Type I process, no public notification will be provided to nearby property owners,with the assumption that the development standards set forth in 18.735.040 will prevent or sufficiently mitigate negative off-site impacts that could occur to sensitive land uses within proximity of the facility The documentation requirements set forth in 18.735.030.0 are similar to requirements set forth in the Durham Facility Plan District (see 18.650.070.G), and are intended to facilitate a meaningful and objective review of facilities that may create a significant and unpleasant odor impact upon the neighborhood. The standard is written broadly to allow flexibility in how the applicant responds to the standard, as well as flexibility to the city as new and unknown business models and building types and activities are presented as this sector of the economy develops. TIGARD MARIJUANA FACILITIES PROJECT PLANNING COMMISSION DRAFT—JANUARY 12, 2015 8 Proposed Text Amendments 18.735.020 Applicability A. Relationshi to other standards. The regulations ithin this Chaster are in addition to base zone standards. Sites with overlay zones, plan districts,inventoried hazards, and/or sensitive lands are subject to additional regulations, Specific uses or development types may also be subject to regulations set forth elsewhere in this tide. B. When provisions apply. The provisions of this chapter shall apply to all marijuana facilities requiring a state license or registration. 18.735.030 Compliance and Enforcement A. Procedure: All marijuana facilities requiring a state license or registration, and public places of assembly where marijuana is consumed, shall demonstrate minimal compliance with these standards through a Type I procedure as set forth in 18.390.030 of this Title,using approval criteria set forth in Subsection B of this section. B. Approval Criteria: Development subject to the provisions of this chapter shall demonstrate compliance with all standards set forth in Section 18.735.040 of this Chapter. C. Documentation: The following provisions shall apply at the time of minimum compliance review or a request for enforcement: 1. When processing a minimum compliance review, the City may accept an evaluation and explanation certified by a registered engineer or architect, as appropriate, that the proposed development will meet the off-site odor impact standard. The evaluation and explanation shall provide a description of the use or activity, equipment,processes and the mechanisms, or equipment used to avoid or mitigate off-site impacts. 2. If the City does not have the equipment or expertise to measure and evaluate a specific complaint regarding off-site impacts,it may request assistance from another agency or may contract with an independent expert to perform the necessary measurements. The City may accept measurements made by an independent expert hired by the controller or operator of the off-site impact source. TIGARD MARIJUANA FACILITIES PROJECT PLANNING COMMISSION DRAIil'-JANUARY 12, 2015 9 Staff Commentary State statute authorizes local governments to establish reasonable time, place, and manner restrictions on both medical and recreational marijuana facilities when tied to specific community impacts. In determining what is "reasonable", staff recommends looking at existing precedents both within Tigard and across the region. • The Tigard Development Code already includes use and design regulations comparable to those proposed in 18.735.050,including: o Restrictions on hours of operation; o Restriction on allowed zones; o Distance buffers; o Limits on size; o Design and Security requirements; and o Environmental performance standards for odor. • Restrictions on hours of operation are proposed o According to data published by the OLCC, proposed hours of operation in TDC 18.735.050.0 are more expansive than those posted by the existing liquor stores in Tigard (11-9 Monday — Friday, 10-7 Saturday, closed on Sunday). Looking at surrounding communities, the proposed hours of operation are identical to (or slightly more expansive) than existing liquor store hours in King City,Beaverton, and Tualatin. o An exception to hours of operation for industrial uses has been included in the proposal for industrial uses where the general public is not present. • Exterior lighting requirements are comparable to those required during normal Site Development Review (see TDC 18.360.090.I). • There is existing precedent for the use of minimum distance buffers as a reasonable land use control for marijuana related businesses, such as those proposed in 18.735.040.H: o The states of Oregon has already set a precedent for the use of 1,000 foot distance buffers as a reasonable method to avoid diversion of marijuana and minimizing public nuisances that may affect minors attending a primary or secondary school. o Washington State ballot measure I-502, prohibits the issuance of a licenses for the sale of marijuana within 1,000 feet of playgrounds, public parks, recreational facilities, child care centers, elementary or secondary schools, transit centers,libraries, or game arcades not restricted to 21 and older. o The city of Tigard adult entertainment standards (18.330.050.B.1) require a 500 ft. separation between adult entertainment uses and specified land uses which may be negatively impacted by adult entertainments. o Other local governments within Oregon have adopted minimum distance requirements from specified land uses, including: Washington County (1,500 —2,000 feet), City of Salem (100-500 feet), City of McMinnville (1,000 feet), and City of Albany (300 feet). The City of Hillsboro is also considering 1,000 foot minimum distance buffers from residential areas, but the public hearing process has not yet concluded. TIGARD MARIJUANA FACILITIES PROJECT PLANNING COMMISSION DRAFT—JANUARY 12, 2015 10 Proposed Text Amendments 18.735.040 Development Standards Development subject to the provisions of this chapter shall demonstrate compliance with all of the following standards: A. The proposed development complies with all applicable State requirements. B. The proposed use is allowed in the underlying zone and complies with all applicable requirements of this title. C. Hours of commercial operation shall be limited to the hours between 10:00 am and 8:00 pm. General industrial uses with no on-site retail activity are exempt from this restriction. D. Primary entrances shall be located on street-facing facades and clearly visible from a public or private street. E. The proposed development shall be located inside a permanent building and may not be located ithin a trailer shi sin. container car.o container tent or motor ehicle. Outdoor stora'e of merchandise,plants, or other materials is not allowed. F. Parking lots,primary entrances, and exterior walkways shall be illuminated with downward facing security lighting to provide after-dark visibility to employees and patrons. Fixtures shall be located so that light patterns overlap at a height of seven feet. G. Drive-through marijuana facilities are prohibited. H. The proposed site is not be located within 500 feet of any parcel or tract of land within the City of Tigard and containing one or more of the following characteristics, as measured at the closest property lines: a. Residential Zone b. Parks and Recreation Zone c. Public Library I. The proposed site is not located within 1,000 feet of any parcel or tract of land within the City of Tigard containing a public or private elementary school, or career school attended primarily by minors, as measured at the closest property lines. J. The proposed development shall confine all marijuana odors and other objectionable odors to levels undetectable at the property line. TIGARD MARIJUANA FACILITIES PROJECT PLANNING COMMISSION DRAT T—JANUARY 12, 2015 11 Citizen Participation Organization 4B AN AUTHORIZED WASHINGTON COUNTY CPO BULL MOUNTAIN/TIGARD BOUNDARY AREA RESOLUTION NO. 15-01 RESOLUTION TO SUPPORT AMENDMENTS TO THE TIGARD DEVELOPMENT CODE AMENDMENT(DCA)2014-00002,MARIJUANA FACILITES DEVELOPMENT CODE AMENDMENT. Corollary Policies and Implementation Mechanisms: The City of Tigard agrees to abide by and enforce all requirements that the OLCC creates. WHEREAS, CPO-4B,meeting at its scheduled time/date,has authority by a simple majority vote to adopt resolutions advising local governments of matters which affect persons and properties within the boundaries of CPO-4B; and WHEREAS, OAR 660-015-0000(1)Oregon's Statewide Planning Goals &Guidelines (Goal 1-Citizen Involvement)encourages the involvement of citizen groups in the planning process; and WHEREAS, CPO-4B is a recognized Citizen Participation Organization of Washington County and includes residents in the Bull Mountain and Tigard areas; and WHEREAS, CPO-4B has reviewed the Public Hearing Notice regarding the Development Code Amendments(DCA)2014-00002,Marijuana Facilities Development Code Amendment; and WHEREAS,the development code amendments will affect the family community,businesses,residents and visitors to Tigard; and WHEREAS, CPO-4B hopes to promote a safe and healthy community by reducing marijuana use among youth within the community. The approved vote for Prop 91 brings concerns to the CPO-4B about marijuana legalization and the impact it will have in Tigard and outside areas of our community especially given the reports from Colorado since inception of legalization in this state; and WHEREAS, CPO-4B proposes Tigard limit the number of licenses individual entities can hold, and limit the number of dispensaries in Tigard to one. These rules will fulfill the public expectation of creating a tightly-regulated and controlled system while providing reasonable access to participation in the market; and WHEREAS, some 30 percent of homeless people in one Denver shelter came to Colorado for pot. Marijuana facilities are having an impact on all of the social services across the state of Colorado, according to"state Rep. Ted Harvey, "an unintended consequence I never thought of'; and WHEREAS, CPO-4B proposes the following changes to the 18.735.040 Development Standards, Sec H proposes site is not be located within 1000 feet of any parcel or tract of land within the City of Tigard and containing one or more of the following characteristics, as measured at the closest property lines: a. Residential Zone b. Parks and Recreation Zone c. Public Library d. Public or Private preschool/daycare, elementary or secondary school; and Page 1 of 3 Resolution No. 09-01 WHEREAS,the proposed policy sets a dangerous precedent that may harm many residents,business owners and visitors. To allow marijuana dispensaries to operate in commercial zones would inhibit the city's ability to effectively implement its vision. "The most walkable community in the Pacific Northwest where people of all ages and abilities enjoy healthy and interconnected lives." CPO-4B proposes the marijuana dispensaries be confined to industrial zones. Bainbridge Island,WA restricted marijuana facilities to operate within the confines of their industrial zone in 2014. Those in favor of restricted zoning said"it would change the family-friendly outlook of the area and be a negative influence on teens and children in the neighborhood."(http://www.bainbridgereview.com/news/262155291.html); and WHEREAS, since Colorado legalized recreational use of marijuana,there have been at least 31 explosions related to butane and hash oil. Explosions have already harmed many individuals locally in our community. CPO-4B proposes no hash oil production or storage within the city limits as it is dangerous and explosive; and WHEREAS, statistics for the High Intensity Drug-trafficking Area(HIDTA)2014 legalization of marijuana impact report: Dr. Chris Colwell reported that Denver Health Medical center sees"about five to ten people per week, complaining about how they're feeling after ingesting edibles. Children's Hospital Colorado Emergency Room physician and toxicology expert Dr. Wang reports that his emergency room is treating one to two children a month for accidental marijuana ingestion,mostly in the form of edibles such as brownies or candies. CPO-4B proposes no production or sale of marijuana infused edible products; and WHEREAS,the glamorization and push to normalize marijuana increases the illegal use in youth, CPO- 4B proposes the following changes to discourage curiosity and protect youth and limit access to merchandise. CPO-4B proposes the Development Standards 18.735.040,to include and require frosted windows,no photos and word only signs; and WHEREAS,youth and others may experience the dangers of second hand smoke, CPO-4B requests Tigard implement policies that do not allow public consummation or smoking in any public place or around children under 21 years of age; and WHEREAS, CPO-4B residents and youth may be irrevocably harmed by the implementation of such a policy; and NOW, THEREFORE,BE IT RESOLVED by CPO-4B that: SECTION 1: CPO-4B does hereby propose the above standards and requests the planning commission, and Tigard City Council to implement these proposals or requirements that are more restrictive. SECTION 2: This writing of and presentation of this resolution passed by a vote of CPO-4B Members on January 8,2015 at the CPO-4B General Meeting. SECTION 3: This resolution is effective immediately upon passage. PASSED: This 8th day of January 2015. FINALIZED: Jan. 12,2015 SIGNED: Jan. 12,2015 Julie Russell Lisa.-lamilton Julie Russell Lisa Hamilton CPO-4B Chairperson CPO-4B Vice-Chairperson Page 2 of 3 Resolution No. 09-01 Page 3 of 3 Resolution No. 09-01