Memo to BOC 8-26-15 w-attachments.pdf

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DATE: August 27, 2015

TO: Board of Commissioners

County Counsel

FROM: Jill Rolfe, Planning Director

RE: September 1, 2015 Meeting

The meeting will be on September 1, 2015 at 2:00 p.m. Staff has prepared this document to

provide some guidance to the Board of Commissioners. After reviewing the all of the

information staff suggests that the Board of Commissioners reviews the revised draft and then

the Board of Commissioners can provide staff with any suggested changes. Once this draft is

agreed upon then staff suggests a final comment period.

Copies of the one page draft will be available at the sign in table. Staff has simplified the draft.

The Board of Commissioners may choose to take testimony but due to the change in text staff

suggest deferring any oral testimony to the next agreed upon meeting date. If you have any

questions, please contact me directly.

Background

Coos County Planning Department has received many inquiries regarding marijuana regulations

in relationship to zoning and permitting. The Coos County Zoning and Land Development

Ordinance is very specific and states that if a use is not listed or not specifically addressed it is

prohibited. Therefore, the purposes of providing for uses related to marijuana are to allow a use

not remove existing rights.

Throughout the time that the Board of Commissioners has allowed for testimony there seems to

have been a lot of misunderstanding regarding how the land use process is designed. The

Comprehensive Land Use Plan (or “Comprehensive Plan”) is the controlling land use document

in all Oregon jurisdictions.

The comprehensive plan generally includes the following three elements:

• An inventory, or “background,” document, which includes descriptions of existing land

uses, natural resources, natural hazards, recreational facilities, transportation facilities,

economics, and other considerations that may impact local land use regulations.

Background documents may also discuss the adequacy of community services such as

education and law enforcement;

Coos County Planning Department Coos County Courthouse Annex, Coquille, Oregon 97423

Mailing Address: 250 N. Baxter, Coos County Courthouse, Coquille, Oregon 97423

Physical Address: 225 N. Adams, Coquille, Oregon

(541) 396-7770

FAX (541) 396-1022 / TDD (800) 735-2900

[email protected]

Jill Rolfe, Planning Director

mailto:[email protected]

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• Goal and policy statements which indicate, in a general way, the objectives of the

jurisdiction over a specific planning period — normally 20 years from the date of adoption

of the plan — and provide guidance on how to achieve those objectives; and

• A comprehensive plan zone map containing boundary lines of the zoning districts. There

may be other comprehensive inventoried maps such as protected resources and hazards.

The goals and policies are generally designed to provide guidance to elected and appointed

officials over the use of land. They are important when reviewing proposed zone changes and

comprehensive plan amendments (text or map).

The current comprehensive plan was adopted in 1985 and since that time has been amended and

updated as required by need or law. The implementing zoning ordinance contains specific uses

that are consistent with the purpose and intent of the zoning district and criteria for uses listed in

each zoning district. Every time a new use is proposed it must be consistent with the purpose

and the intent of the zoning district. In order to consider a new use a legislative process is

followed.

During a local legislative process, the decision makers may have pre-hearing contact with

citizens. Decision makers are seeking all the input they can get on the issue in order to make a

reasonable decision on the proposed amendment. Public hearings are scheduled when

considering text amendments to the Comprehensive Plan or Land Development Ordinance.

Prior to the legislative amendment, Staff, Planning Commission, Board of Commissioners or an

Applicant can make a request for a text amendment. The Board of Commissioners must initiate

a legislative text amendment, unless it is driven by an applicant. Staff or Planning Commission

can only make recommendations to the Board of Commissioners.

Once the proposed language has been drafted by Staff there will be work sessions with Legal

Counsel, the Board of Commissioners and Planning Commission, which are always open to the

public. Other departments and agencies may be involved, depending on the type of changes

proposed. Once the changes have been through the work session process and the applicable

requested changes have been completed, Staff will either start the formal hearing process or have

open work sessions at the direction of the Board of Commissioners.

In this case Coos County is responsible for regulating land uses, including those related to

recreational and medical marijuana, pursuant to the Coos County Zoning and Land Development

Ordinance (CCZLDO). This is the process that the Board of Commissioners, Counsel and Staff

are engaged in currently while considering text amendments to include marijuana uses. Drafts

have been made available to the public but they are in draft form until the time the Board of

Commissioners adopts the language.

The land use issues associated with medical and recreational marijuana in Oregon are very

dynamic. Marijuana is illegal under the federal Controlled Substances Act (CSA) of 1970. In

Oregon, there are court opinions, pending litigation, various interpretations of the law, new

legislation, existing laws regulating medical marijuana, and new administrative rules

forthcoming regulating recreational marijuana – all of which may influence the regulation and

implementation of medical and recreational marijuana land uses.

Oregon House Bill 3400, adopted earlier this year, amended both the Control, Regulation, and

Taxation of Marijuana and Industrial Hemp Act (Ballot Measure 91, adopted by the voters in

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2014) and the Oregon Medical Marijuana Act (codified as Oregon Revised Statutes 475.300 -

475.346). The legislative mark-up version of HB 3400 is 111 pages long. Many provisions are

unrelated to land use regulation and therefore unrelated to the county’s current project to

consider marijuana-related amendments to the CCZLDO.

Marijuana production, processing and sale are no different than any other land use when it comes

to administering the zoning ordinance. As with other land uses, the appropriate zoning district(s)

to locate these businesses will be based on characteristics of the business (growing, processing,

wholesaling, retailing or a combination thereof). The Board of Commissioners shall consider if

the use conforms to the purpose and intent of the zoning district. Medical marijuana-related uses

have been regulated in the same manner as other similar uses under the CCZLDO for many

years. The Oregon Medical Marijuana Act was adopted in 1998, although retail dispensaries

were not legalized until 2014. For recreational marijuana, the inherent conflict is that related

uses may be legally permissible under the construct of the County CCZLDO and yet cannot

legally operate until such time as the OLCC issues a license for each facility.

When the County receives a land use application for a marijuana use or facility, the proposal is

evaluated to determine the proposal’s consistency with the CCZLDO. If the proposal complies

with the CCZLDO, it is approved. This is through a compliance determination process.

The county has already adopted regulations for medical dispensaries and they are regulated

through the Coos County Planning Department. The county is now reviewing medical

processing and all components of the recreational marijuana.

New State Legislation

The 2015 legislature adopted five bills related to marijuana. In addition to HB 3400, discussed at

length below, only one bill is related to marijuana land use regulations.

Senate Bill 460A (Early Start) allows medical marijuana dispensaries to sell limited

recreational marijuana products (i.e. recreational marijuana seeds, leaves, flowers and non-

flowering plants) beginning October 1, 2015. The effect of this bill brings the legal sale of

recreational marijuana to the market prior to the OLCC accepting and approving licenses for

recreational marijuana dispensaries in 2016. The sale of limited recreational marijuana products

can only occur in licensed medical marijuana dispensaries that are already authorized under the

County’s time, place and manner regulations. Therefore, no additional land use regulations are

necessary before October 1, 2015 to allow the sale of limited recreational marijuana products.

House Bill 3400 amended Ballot Measure 91 and certain provisions of the Oregon Medical

Marijuana Act. Details are below:

A. Recreational Marijuana (Ballot Measure 91/House Bill 3400)

Definitions:

a. Household: a housing unit, including any place in or around the housing unit at

which the occupants of the housing unit are producing, processing, keeping or storing

homegrown marijuana or homemade marijuana products

b. Marijuana: the plant Cannabis family Cannabaceae, any part of the plant Cannabis

family Cannabaceae and the seeds of the plant Cannabis family Cannabaceae

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c. Immature Marijuana Plant: a marijuana plant that is not flowering

d. Mature marijuana plant: a marijuana plant that is not an immature marijuana plant

e. Marijuana items: marijuana, cannabinoid products, cannabinoid concentrates and

cannabinoid extracts

f. Marijuana processor: a person who processes marijuana items in this state

g. Marijuana producer: a person who produces marijuana in this state

h. Marijuana retailer: a person who sells marijuana items to a consumer in this state

i. Marijuana wholesaler: a person who purchases marijuana items in this state for

resale to a person other than a consumer

j. Processes: the processing, compounding or conversion of marijuana into

cannabinoid products, cannabinoid concentrates or cannabinoid extracts. Processes

does not include packaging and labeling.

k. Produces: the manufacture, planting, cultivation, growing or harvesting of marijuana

l. Public place: a place to which the general public has access and includes, but is not

limited to, hallways, lobbies and other parts of apartment houses and hotels not

constituting rooms or apartment designed for actual residence, and highways, streets,

schools, places of amusement, parks, playgrounds and areas used in conjunctions

with public passenger transportation.

Overview:

Measure 91, approved by Oregon voters in November 2014 -- the Control, Regulation,

and Taxation of Marijuana and Industrial Hemp Act -- was approved in Coos County.

HB 3400, which amends Measure 91, was adopted by the 2015 state legislature. The

following information summarizes the original act as amended by HB 3400.

a. The purpose of the law is to permit persons licensed, controlled, regulated and taxed

by this state to legally manufacture and sell marijuana to persons 21 year of age and

older.

b. Though the original Act does not include any specific land use regulations, HB 3400

does.

c. Though the original Act does not amend the Oregon Medical Marijuana Act, HB

3400 does.

d. The Act clarifies that marijuana does not include industrial hemp, as defined in ORS

571.300, or industrial hemp commodities or products. (Growing industrial hemp is

considered to be an agricultural product / farm use (OAR 571.305(1)). Industrial

hemp facilities must be licensed by the Oregon Department of Agriculture (ODA).)

Recreational Marijuana for Personal Use: The production, processing and storage of homegrown marijuana and marijuana products

are often referred to as the Personal Use Allowance. The personal allowance authorized

for recreational marijuana per household is a right to possess marijuana; it is not a land

use issue and will not be regulated by the CCZLDO (this was decided by the Board of

Commissioners at the last hearing).

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a. Effective July 1, 2015, the making, processing and storage of homegrown marijuana

and marijuana products is not to exceed four plants, eight ounces of useable

marijuana, 16 ounces in solid form, 72 ounces in liquid form and 16 ounces of

concentrates per household at any time

b. The delivery of marijuana is not to exceed more than one ounce of homegrown

marijuana, 16 ounces of solids, 72 ounces of liquids and 16 ounces of concentrates at

a time by a person 21 years of age or older to another person 21 years of age or older

for non-commercial purposes.

c. No consumption is allowed in public.

d. No person may produce, process, keep or store homegrown marijuana or homemade

marijuana products if the products can be readily seen by normal unaided vision from

a public place.

Oregon Liquor Control Commission (OLCC): The Oregon Liquor Control Commission (OLCC) is responsible to adopt laws (Oregon

Administrative Rules) to implement and administer Measure 91 and HB 3400. The duties

of the OLCC include:

a. To regulate the purchase, sale, production, processing, transportation and delivery of

marijuana items.

b. On or before January 1, 2016, to adopt rules and regulations as deemed necessary for

the implementation and administration of the Act.

c. On or before January 4, 2016, to begin receiving applications for the licensing of

persons to produce, process, wholesale and retail marijuana. (The Act states that

OLCC may not unreasonably delay decisions on a license, but does not specify a time

limit.)

RECREATIONAL MARIJUANA LICENSES

Type: Licenses approved by the OLCC are required for four types of commercial

recreational marijuana facilities:

a. producers;

b. processers;

c. wholesalers, and

d. retailers.

The same person may hold one or more production licenses, one or more processor

licenses, one or more wholesale licenses, and one or more retail licenses. The following

information is excerpts from HB 3400 regarding each license

PRODUCTION LICENSE: Sections 12 and 13 of HB 3400 identify the requirements for a

marijuana production license:

SECTION 12. Section 19, chapter 1, Oregon Laws 2015, is amended to read:

(1) The production of marijuana is subject to regulation by the Oregon Liquor Control

Commission.

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(2) A marijuana producer must have a production license issued by the commission for

the premises at which the marijuana is produced. To hold a production license under

this section, a marijuana producer:

(a) Must apply for a license in the manner described in section 28, chapter 1, Oregon

Laws 2015;

(b) Must, until January 1, 2020, provide proof that an applicant listed on an

application submitted under section 28, chapter 1, Oregon Laws 2015, has been a

resident of this state for two or more years, and must provide proof that the

applicant is 21 years of age or older; and

(c) Must meet the requirements of any rule adopted by the commission under

subsection (3) of this section.

(3) The commission shall adopt rules that:

(a) Require a marijuana producer to annually renew a license issued under this

section;

(b) Establish application, licensure and renewal of licensure fees for marijuana

producers;

(c) Require marijuana produced by marijuana producers to be tested in accordance

with section 92 of this 2015 Act;

(d) Require marijuana producers to submit, at the time of applying for or renewing a

license under section 28, chapter 1, Oregon Laws 2015, a report describing the

applicant’s or licensee’s electrical or water usage; and

(e)

(A) Require a marijuana producer to meet any public health and safety standards

and industry best practices established by the commission by rule related to:

(i) The production of marijuana; or

(ii) The propagation of immature marijuana plants and the seeds of the plant

Cannabis family Cannabaceae.

(B) For purposes of establishing rules under subparagraph (A)(ii) of this

paragraph, the commission may not limit:

(i) The number of immature marijuana plants that may be possessed by a

marijuana producer licensed under this section;

(ii) The size of the grow canopy a marijuana producer licensed under this

section uses to grow immature marijuana plants; or

(iii) The weight or size of shipments of immature marijuana plants made by a

marijuana producer licensed under this section.

(4) Fees adopted under subsection (3)(b) of this section:

(a) May not exceed the cost of administering sections 3 to 70, chapter 1, Oregon

Laws 2015, with respect to marijuana producers;

(b) Shall be in the form of a schedule that imposes a greater fee for premises with

more square footage or on which more mature marijuana plants are grown; and

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(c) Shall be deposited in the Marijuana Control and Regulation Fund established

under section 32 of this 2015 Act.

SECTION 13.

(1) Subject to subsection (2) of this section, the Oregon Liquor Control Commission shall

adopt rules restricting the size of mature marijuana plant grow canopies at premises

for which a license has been issued under section 19, chapter 1, Oregon Laws 2015.

In adopting rules under this subsection, the commission shall:

(a) Limit the size of mature marijuana plant grow canopies, for premises where

marijuana is grown outdoors and for premises where marijuana is grown

indoors, in a manner calculated to result in premises that produce the same

amount of harvested marijuana leaves and harvested marijuana flowers

regardless of whether the marijuana is grown outdoors or indoors.

(b) Adopt a tiered system under which the permitted size of a marijuana producer’s

mature marijuana plant grow canopy increases at the time of licensure renewal

under section 19, chapter 1, Oregon Laws 2015, except that the permitted size of a

marijuana producer’s mature marijuana plant grow canopy may not increase

following any year during which the commission disciplined the marijuana producer

for violating a provision of sections 3 to 70, chapter 1, Oregon Laws 2015, or a rule

adopted under a provision of sections 3 to 70, chapter 1, Oregon Laws 2015.

(c) Take into consideration the market demand for marijuana items in this state, the

number of persons applying for a license under section 19, chapter 1, Oregon

Laws 2015, and to whom a license has been issued under section 19, chapter 1,

Oregon Laws 2015, and whether the availability of marijuana items in this state is

commensurate with the market demand.

(2) This section does not apply to a premises for which a license has been issued under

section 19, chapter 1, Oregon Laws 2015, if the premises is used only to propagate

immature marijuana plants.

PROCESSOR LICENSE: Section 14 of HB 3400 identifies the requirements for a

marijuana processor license: SECTION 14. Section 20, chapter 1, Oregon Laws 2015, is

amended to read:

(1) The processing of marijuana items is subject to regulation by the Oregon Liquor

Control Commission.

(2) A marijuana processor must have a processor license issued by the commission for

the premises at which marijuana items are processed. To hold a processor license

under this section, a marijuana processor:


Laws 2015;




applicant is 21 years of age or older;

(c) If the marijuana processor processes marijuana extracts, may not be located in

an area zoned exclusively for residential use; and

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(d) Must meet the requirements of any rule adopted by the commission under



(a) Require a marijuana processor to annually renew a license issued under this

section;


processors;

(c) Require marijuana processed by a marijuana processor to be tested in

accordance with section 92 of this 2015 Act; and

(d) Require a marijuana processor to meet any public health and safety standards

and industry best practices established by the commission by rule related to:

(A) Cannabinoid edibles;

(B) Cannabinoid concentrates;

(C) Cannabinoid extracts; and

(D) Any other type of cannabinoid product identified by the commission by rule.



Laws 2015, with respect to marijuana processors; and

(b) Shall be deposited in the Marijuana Control and Regulation Fund established


STAFF COMMENT: Paragraph 2(c) prohibits a marijuana processor who

processes marijuana extracts from being “… located in an area zoned

exclusively for residential use.” The word exclusively seems to mean primarily

for residential use. In Coos County the purpose and intent of the zone has to be

considered. Below are the purposes and intents of the residential zoning

districts. Urban residential is for primary residential and uses that support the

urban level of residential living. Rural residential is bit tougher as rural

residential is a transitional zone. The primary intent is still too provided for

residential uses but due to larger sizes, small agricultural operations could be

allowed; however, processing does not comply with the intent and a finding

could be made the processing should be excluded.

Processing facilities was considered to be allowed in the industrial zone (as a

conditional use) but other zones could be included such as rural center,

controlled development, Exclusive Farm Use and Forest Mixed Use. This

would eliminate the need for moving raw product off site in these zones. Using

the table that staff put together it appears that processing of recreational

marijuana can be permitted subject to standards in the IND and C-1, EFU and

FMU can be permitted outright and the RC and CD are under the discretion of

the Board of Commissioners, meaning they can determine if this is a

conditional use or ministerial action. The current proposed language only

addresses EFU, FMU and Industrial for processing.

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Rural Residential (RR)

The purpose of the “RR-2” district is to provide for small acreage dwelling sites outside of

Urban Growth Boundaries, where a moderate intensity of land development is appropriate,

but where urban services and facilities may not be available or necessary. The “RR-2”

district provides for continued existence of rural family life and to provide a transition of

densities between urban development and exclusive agricultural and forestry uses.

The purpose of the “RR-5” district is to provide for acreage dwelling sites outside of Urban

Growth Boundaries (UGB), where a moderate intensity of land development is appropriate,

but where urban services and facilities may not be available. The “RR-5” district provides

for the orderly development of rural land so as to encourage the continued existence of rural

family life and to provide a transition of densities between urban development and exclusive

agricultural or forestry uses.

Urban Residential (UR)

The purpose of the “UR-1” district is to provide for urban residential areas that are

exclusively limited to conventional single family dwellings. Detached conventional single

family dwellings clustered in planned unit developments are consistent with the objectives of

the “UR-1” district. This district shall only be used within Urban Growth Boundaries and

Urban Unincorporated Community boundaries.

The purpose of the “UR-2” district is to provide for urban residential areas that are

designed to accommodate single family dwellings, mobile homes and two family dwellings.

Clustered planned unit developments, including multi-family dwellings, are consistent with

the objectives of the “UR-2” district. The “UR-2” district shall only be used within Urban

Growth Boundaries and Urban Unincorporated Community boundaries.

The purpose of the “UR-M” district is to provide for high density urban residential areas

necessary to accommodate opportunities for the construction of multiple-family dwellings,

primarily necessary to meet the needs of low and moderate income families. The “UR-M”

district shall only be used within Urban Growth Boundaries and Urban Unincorporated

Community boundaries.

WHOLESALE LICENSE: Section 15 identifies the requirements for a marijuana wholesale

license: SECTION 15. Section 21, chapter 1, Oregon Laws 2015, is amended to read:

(1) The wholesale sale of marijuana items is subject to regulation by the Oregon Liquor

Control Commission.

(2) A marijuana wholesaler must have a wholesale license issued by the commission for

the premises at which marijuana items are received, stored or delivered. To hold a

wholesale license under this section, a marijuana wholesaler:


Laws 2015;

(b) Must, until January 1, 2020, provide proof that an applicant listed on an application

submitted under section 28, chapter 1, Oregon Laws 2015, has been a resident of

this state for two or more years, and must provide proof that the applicant is 21

years of age or older;

(c) May not be located in an area that is zoned exclusively for residential use; and

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(d) Must meet the requirements of any rule adopted by the commission under



(a) Require a marijuana wholesaler to annually renew a license issued under this

section;


wholesalers;

(c) Require marijuana items received, stored or delivered by a marijuana wholesaler

to be tested in accordance with section 92 of this 2015 Act; and

(d) Require a marijuana wholesaler to meet any public health and safety standards

and industry best practices established by the commission by rule.



Laws 2015, with respect to marijuana wholesalers; and

(b) Shall be deposited in the Marijuana Control and Regulation Fund established


STAFF COMMENT: Wholesale was not specifically addressed though it could be done as a

marijuana nursery but staff would suggest that a nursery be treated the same as any

agricultural structure. Again wholesale should not be permitted in rural residential and

urban residential as they are primary residential zones.

RETAIL LICENSE: Sections 16 and 17 identify the requirements for a marijuana retail

license:


(1) The retail sale of marijuana items is subject to regulation by the Oregon Liquor

Control Commission.

(2) A marijuana retailer must have a retail license issued by the commission for the

premises at which marijuana items are sold. To hold a retail license under this

section, a marijuana retailer:


Laws 2015;




applicant is 21 years of age or older;

(c) May not be located in an area that is zoned exclusively for residential use;

(d) May not be located within 1,000 feet of:

(A) A public elementary or secondary school for which attendance is compulsory

under ORS 339.020; or

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(B) A private or parochial elementary or secondary school, teaching children as

described in ORS 339.030 (1)(a); and

(e) Must meet the requirements of any rule adopted by the commission under



(a) Require a marijuana retailer to annually renew a license issued under this

section;


retailers;

(c) Require marijuana items sold by a marijuana retailer to be tested in accordance

with section 92 of this 2015 Act; and

(d) Require a marijuana retailer to meet any public health and safety standards and

industry best practices established by the commission by rule.



Laws 2015, with respect to marijuana retailers; and

(b) Shall be deposited in the Marijuana Control and Regulation Fund established under

section 32 of this 2015 Act.

SECTION 17. If a school described in section 22 (2)(d), chapter 1, Oregon Laws 2015, that

has not previously been attended by children is established within 1,000 feet of a premises

for which a license has been issued under section 22, chapter 1, Oregon Laws 2015, the

marijuana retailer located at that premises may remain at that location unless the Oregon

Liquor Control Commission revokes the license of the marijuana retailer under section 30,

chapter 1, Oregon Laws 2015.

STAFF COMMENT: Retail should be permitted in primary commercial and mixed

commercial zones. It is consistent with the intent and purpose of commercial and commercial.

REASONABLE REGULATIONS: Section 33 of HB 3400 authorizes the County to impose

reasonable regulations on the operation of licensed recreational marijuana businesses.


(1) For purposes of this section, “reasonable regulations” includes:

(a) Reasonable conditions on the manner in which a marijuana producer licensed

under section 19, chapter 1, Oregon Laws 2015, may produce marijuana;

(b) Reasonable conditions on the manner in which a marijuana processor licensed

under section 20, chapter 1, Oregon Laws 2015, may process marijuana;

(c) Reasonable conditions on the manner in which a marijuana wholesaler licensed

under section 21, chapter 1, Oregon Laws 2015, may sell marijuana at wholesale;

(d) Reasonable limitations on the hours during which a marijuana retailer licensed

under section 22, chapter 1, Oregon Laws 2015, may operate;

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(e) Reasonable conditions on the manner in which a marijuana retailer licensed

under section 22, chapter 1, Oregon Laws 2015, may sell marijuana items;

(f) Reasonable requirements related to the public’s access to a premises for which a

license has been issued under section 19, 20, 21 or 22, chapter 1, Oregon Laws

2015; and

(g) Reasonable limitations on where a premises for which a license may be issued

under section 19, 20, 21 or 22, chapter 1, Oregon Laws 2015, may be located.

(2) Notwithstanding ORS 633.738, the governing body of a city or county may adopt

ordinances that impose reasonable regulations on the operation of businesses located

at premises for which a license has been issued under section 19, 20, 21 or 22,

chapter 1, Oregon Laws 2015, if the premises are located in the area subject to the

jurisdiction of the city or county, except that the governing body of a city or county

may not adopt an ordinance that prohibits a premises for which a license has been

issued under section 22, chapter 1, Oregon Laws 2015, from being located within a

distance that is greater than 1,000 feet of another premises for which a license has

been issued under section 22, chapter 1, Oregon Laws 2015.

(3) Regulations adopted under this section must be consistent with city and county

comprehensive plans and zoning ordinances and applicable provisions of public

health and safety laws.

STAFF COMMENT: The word “reasonable” is not defined by HB 3400. However, the

conditions must be related to time, manner, access, and shall comply with the Coos

County’s Comprehensive Plan and implementing zoning ordinances. Staff has

explained throughout the document why residential zoning districts should not allow for

processing, wholesale and/or retail.

After reviewing all of the testimony and regulation staff has some suggested edits for the

Board of Commissioners to consider.

FARM USE: Section 34 explicitly applies various farm-related provisions of state law to

marijuana and requires a land use compatibility statement from the County as part of the

Oregon Liquor Control Commission’s marijuana business licensing process.

SECTION 34.

(1) Notwithstanding any other provision of law, marijuana is:

(a) A crop for the purposes of “farm use” as defined in ORS 215.203;

(b) A crop for purposes of a “farm” and “farming practice,” both as defined in ORS

30.930;

(c) A product of farm use as described in ORS 308A.062; and

(d) The product of an agricultural activity for purposes of ORS 568.909.

(2) Notwithstanding ORS chapters 195, 196, 197 and 215, the following are not

permitted uses on land designated for exclusive farm use:

(a) A new dwelling used in conjunction with a marijuana crop;

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(b) A farm stand, as described in ORS 215.213 (1)(r) or 215.283 (1)(o), used in

conjunction with a marijuana crop; and

(c) A commercial activity, as described in ORS 215.213 (2)(c) or 215.283 (2)(a),

carried on in conjunction with a marijuana crop.

(3) A county may allow the production of marijuana as a farm use on land zoned for farm

or forest use in the same manner as the production of marijuana is allowed in

exclusive farm use zones under this section and ORS 215.213 and 215.283.

(4)

(a) Prior to the issuance of a license under section 19, 20, 21 or 22, chapter 1,

Oregon Laws 2015, the Oregon Liquor Control Commission shall request a land

use compatibility statement from the city or county that authorizes the land use.

The land use compatibility statement must demonstrate that the requested license

is for a land use that is allowable as a permitted or conditional use within the

given zoning designation where the land is located. The commission may not issue

a license if the land use compatibility statement shows that the proposed land use

is prohibited in the applicable zone.

(b) A city or county that receives a request for a land use compatibility statement

under this subsection must act on that request within 21 days of:

(A) Receipt of the request, if the land use is allowable as an outright permitted

use; or

(B) Final local permit approval, if the land use is allowable as a conditional use.

(c) A city or county action concerning a land use compatibility statement under this

subsection is not a land use decision for purposes of ORS chapter 195, 196, 197

or 215.

STAFF COMMENT: It appears that marijuana production is permitted

outright in the Exclusive Farm Use (EFU) District. In addition, the definition

of farm use at ORS 215.203 permits wholesaling and certain levels of

processing (i.e., 10,000-square-foot maximum processing space with a

minimum of 25% of processed crops grown onsite). ORS 30.930 prohibits the

county from regulating farm practices as nuisances or trespass on land zoned

for farm use. This appears to limit significantly the degree to which farming

practices associated with marijuana may be restricted by the county. Outside of

the EFU zone, HB 3400 provides less clarity. However, the use of the word

“may” (A county may allow the production of marijuana as a farm use on land

zoned for farm or forest use in the same manner as the production of

marijuana is allowed in exclusive farm use zones under this section and ORS

215.213 and 215.283.) strongly suggests that the County is not required to

permit marijuana production in its forest and rural residential zones. However,

these zones currently permit a broad range of farm uses, including horticulture,

raising of crops, and marketing of farm products. In some cases, processing of

farm products is permitted.

Furthermore, staff did request comments from Katherine Daniels, Farm and Forest

Land Specialist from Department of Land Conservation and Development (DLCD).

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After reviewing the revised language for the EFU and FMU zones Ms. Daniels

suggests the following:

- Your definition of processing excludes packaging or labeling. However, the definition in

HB 3400 excludes packaging and labeling only if in preparation for delivery to a

marijuana processor; otherwise, this is considered part of processing. Processing also

excludes the drying of marijuana by a marijuana producer.

- Under the Recreational Marijuana Grow Site section, it is stated that “A commercial

farm use (processing component for the purpose of sale) will require a conditional use

and must meet the conditional use criteria in the EFU or FMU zoning districts plus the

standards listed below.” I’m not sure what this statement means. Any farm use, whether

commercial or not, meeting the definition of farm use in ORS 215.203 in an EFU zone

should be treated the same and is not subject to review. A processing facility is a different

use. (Small-scale) processing facilities as authorized in ORS 215.283(1)(r) is a permitted,

not a conditional use, although “reasonable conditions” may apply. For instance, you

might have conditions related to wholesale sales from processors. A commercial activity

in conjunction with farm use, which is sometimes used for larger processing facilities, is

not allowed for marijuana. There are no authorized paths for retail sales of either

recreational or medical marijuana in farm or forest zones, so you don’t need to worry

about that.

- The #11 setbacks for “facilities” doesn’t specify which types of facilities are intended. I

don’t think that it could be applied to the production/growing of marijuana without

running up against right-to-farm protections. It is unclear whether it could be applied to

small-scale processing facilities in EFU zones because of case law (Brentmar) that limits

the ability of counties to adopt their own review criteria for uses listed in ORS

215.283(1). However, there is the authorization in HB 3400 for reasonable conditions, so

you might consult with your legal counsel on this. It’s potential applicability would pretty

much be limited to small-scale processing facilities, though possibly not if the setback

physically couldn’t be accommodated. This setback was originally developed for medical

marijuana dispensaries.

- Agricultural-exempt buildings are allowable in EFU and forest zones when in

conjunction with any type of farm use, including recreational marijuana.

Staff reviewed these comments and believes that the first comment is valid and

clarification is required. This can be accomplished by removing the incorrect portion of

the sentence for the definition of “Processes”. The definition would read: “Processes

means the processing, compounding or conversion of marijuana into cannabinoid

products, cannabinoid concentrates or cannabinoid extracts.”

The second comment appears that staff needs to clarify small processing as the definition

of farm use at ORS 215.203 permits wholesaling and certain levels of processing (i.e.,

10,000-square-foot maximum processing space with a minimum of 25% of processed crops

grown onsite). In a prior land use case legal counsel had provided guidance on process

and when it should be a conditional use. Basically if other products are brought to the site

in order to change the physical state of the farm product it should be reviewed as a

commercial use in conjunction with a farm (use) operation and could be subject to

conditional use. The example given is if a farm is making jelly on site, the fruit is altered

from its original state by products that are not grown on the farm to achieve the final

product; this is a commercial practice in conjunction with a farm use.

15

In regards to comments three and four staff agrees and this language should be revised.

Subsection 11 on page 5 should be removed. Marijuana nurseries should be allowed

outright on page 6.

The current language that Staff revised as requested by the Board of Commissions and

posted on-line for comment on July 16, 2015 to August 21, 2015 (39 days for written

comment).

The language that was posted for medial and recreation is found as Attachment A to this

document.

Medical Marijuana

Definitions (HB 3400)

a. Registry identification cardholder: a person to whom a registry identification card

has been issued under ORS 475.309

b. Marijuana grow site: a location registered under ORS 475.304 where marijuana is

produced for use by a registry identification holder.

c. Person designated to produce marijuana by a registry identification card holder: a

person designated to produce marijuana by a registry identification cardholder

under ORS 475.304 who produces marijuana for a registry identification cardholder

at an address other than the address where the registry identification cardholder

resides or at an address where more than 12 mature plants are produced.

The Oregon Medical Marijuana Act (OMMA) is codified in ORS 475.300-475.346. The

Oregon Health Authority (OHA) adopted Oregon Administrative Rules (OAR 333, Division

8) necessary for the implementation and administration of the Oregon Medical Marijuana

Act. The County is not responsible for administering the OAR’s relative to medical

marijuana. Registration is required through the Oregon Health Authority for production and

processing of medical marijuana and for medical marijuana dispensaries.

Coos County adopted an ordinance in 2014 establishing a moratorium prohibiting medical

marijuana dispensaries until May 1, 2015. The Board of Commissioners adopted ordinance

language to regulated medical dispensaries on June 24, 2015.

GROW SITE POSSESSION LIMITS: Section 82 of HB 3400 establishes limits on the

number of plants and amount of marijuana that may be at a grow site. SECTION 82. ORS

475.320 is amended to read:

(1) Subject to subsection (2) of this section, a registry identification cardholder and the

designated primary caregiver of the registry identification cardholder may jointly

possess six or fewer mature marijuana plants.

(2)

(a) A person may be designated to produce marijuana under ORS 475.304 by no

more than four registry identification cardholders.

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(b) A person who is designated to produce marijuana by a registry identification

cardholder may produce no more than six mature marijuana plants per registry

identification cardholder.

(3) If the address of a person responsible for a marijuana grow site under ORS 475.304

is located within city limits in an area zoned for residential use:

(a) Except as provided in paragraph (b) of this subsection, no more than 12 mature

marijuana plants may be produced at the address; or

(b) Subject to subsection (5) of this section, if each person responsible for a

marijuana grow site located at the address first registered with the Oregon

Health Authority under ORS 475.304 before January 1, 2015, no more than the

amount of mature marijuana plants located at that address on December 31,

2014, in excess of 12 mature marijuana plants, not to exceed 24 mature

marijuana plants, may be produced at the address.

(4) If the address of a person responsible for a marijuana grow site under ORS 475.304

is located in an area other than an area described in subsection (3) of this section:

(a) Except as provided in paragraph (b) of this subsection, no more than 48 mature

marijuana plants may be produced at the address; or

(b) Subject to subsections (5) and (6) of this section, if each person responsible for a

marijuana grow site located at the address first registered with the authority

under ORS 475.304 before January 1, 2015, no more than the amount of mature

marijuana plants located at that address on December 31, 2014, in excess of 48

mature marijuana plants, not to exceed 96 mature marijuana plants, may be

produced at the address.

(5) If the authority suspends or revokes the registration of a person responsible for a

marijuana grow site that is located at an address described in subsection (3)(b) or

(4)(b) of this section:

(a) No more than 12 mature marijuana plants may be subsequently produced at any

address described in subsection (3) of this section at which the person responsible

for that marijuana grow site produces marijuana.

(b) No more than 48 mature marijuana plants may be subsequently produced at any

address described in subsection (4) of this section at which the person responsible

for that marijuana grow site produces marijuana.

(6) If a registry identification cardholder who designated a person to produce marijuana for

the registry identification cardholder pursuant to ORS 475.304 terminates the

designation, the person responsible for the marijuana grow site whose designation has

been terminated may not be designated to produce marijuana by another registry

identification cardholder, except that the person may be designated by another registry

identification cardholder if no more than 48 mature marijuana plants are produced at

the address for the marijuana grow site at which the person produces marijuana.

STAFF COMMENT: Medical marijuana grows would be permitted under the CCZLDO as a

farm use in zoning districts that allow for farm use.

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MEDICAL MARIJUANA PROCESSORS: Section 85 of HB 3400 provides, in pertinent

part:

(3) To qualify for registration under this section, a marijuana processing site:

(a) May not be located in an area that is zoned for residential use if the marijuana

processing site processes cannabinoid extracts;

STAFF COMMENT: Zoning districts that allow for farm use may produce medical

marijuana meaning drying and cultivation activities but processing cannabinoid extracts

would not be appropriate in rural and urban residential zones. Processing sites would not be

consistent with the comprehensive plan definition of rural and urban residential zones.

MEDICAL MARIJUANA DISPENSARIES: Section 86 of HB 3400 provides, in pertinent

part:

(3) To qualify for registration under this section, a medical marijuana dispensary:

(a) May not be located in an area that is zoned for residential use;

(b) May not be located at the same address as a marijuana grow site;

(c) Must be registered as a business, or have filed an application to register as a

business, with the office of the Secretary of State;

(d) May not be located within 1,000 feet of:

(A) A public elementary or secondary school for which attendance is compulsory

under ORS 339.020; or

(B) A private or parochial elementary or secondary school, teaching children as

described in ORS 339.030 (1)(a);

(e) Must not be located within 1,000 feet of another medical marijuana dispensary;

SECTION 86a. If a school described in ORS 475.314 (3)(c1) that has not previously been

attended by children is established within 1,000 feet of a medical marijuana dispensary, the

medical marijuana dispensary may remain at its current location unless the Oregon Health

Authority revokes the registration of the medical marijuana dispensary.

REASONABLE REGULATIONS: Section 89 of HB 3400 authorizes the County to impose

reasonable regulations on the operation of medical marijuana uses.

(1) For purposes of this section, “reasonable regulations” includes:

(a) Reasonable limitations on the hours during which the marijuana grow site of a

person designated to produce marijuana by a registry identification cardholder, a

marijuana processing site or a medical marijuana dispensary may operate;

(b) Reasonable conditions on the manner in which a marijuana processing site or

medical marijuana dispensary may transfer usable marijuana, medical

1 Must not be located within 1,000 feet of the real property comprising a public or private elementary,

secondary or career school attended primarily by minors.

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cannabinoid products, cannabinoid concentrates, cannabinoid extracts, immature

marijuana plants and seeds;

(c) Reasonable requirements related to the public’s access to the marijuana grow site

of a person designated to produce marijuana by a registry identification

cardholder, a marijuana processing site or a medical marijuana dispensary; and

(d) Reasonable limitations on where the marijuana grow site of a person designated

to produce marijuana by a registry identification cardholder, a marijuana

processing site or a medical marijuana dispensary may be located.

(2) Notwithstanding ORS 633.738, the governing body of a city or county may adopt

ordinances that impose reasonable regulations on the operation of marijuana grow

sites of persons designated to produce marijuana by registry identification

cardholders, marijuana processing sites and medical marijuana dispensaries that are

located in the area subject to the jurisdiction of the city or county.

STAFF COMMENT: Medical dispensary language was already adopted by the Board of

Commissioners. However, the reasonable regulations include regulations on marijuana

processing site, transfer of certain medical marijuana related products.

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Staff has put together a table showing the zoning districts and if a marijuana use is allowed or not allowed.

Key: P= permitted by state law, consistent with comprehensive plan designation or county time, place and manner regulation

U = Not Addressed by state law or county ordinance

N = Not permitted (prohibited) by county land use regulation

Blue boxes are regulations set by county time, place and manner regulations

Yellow boxes are set by state law

White boxes are at the discretion of the County

Zone Exclusive

Farm Use

Forest Forest

Mixed

Use

Rural

Center

Controlled

Development

Rural

Residential

Urban

Residential

Industrial Commercial

TYPE OF

LICENSE

Recreational

Grow/Production P U P P P P P P P

Processing P U P P P N N P P

Wholesaling P U P P P N N P P

Retail/Dispensary N N N P P N N N P

Medical

Processing N N N P P N N P P

Retail/Dispensary N N N P P N N P P

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Definitions of each zoning district.

Exclusive farm use (EFU)

The purpose of the EFU district is to preserve the integrity and encourage the conservation of

agricultural lands within Coos County and thereby comply with the provisions of ORS 215 and

OAR 660. Division 33 to minimize conflicts between agricultural practices and non-farm uses by

limiting any development to uses distinguished as dependent upon or accessory to supporting

agricultural or forestry production and which qualify such farm lands for special tax relief

pursuant to the provisions of Oregon Revised Statutes. This zone is also for the cultivation and

marketing of specialty crops, horticultural crops and other intensive farm uses.

Forest (F)

Purpose and Intent: The purpose of the Forest zone is to conserve and protect forest land for forest

uses. Some of the areas covered by the “F” zone are exclusive forest lands, while other areas include a

combination of mixed farm and forest uses.

Forest Mixed Use (FMU)

Mixed Farm-Forest Areas (“MU” areas) include land which is currently or potentially in farm-

forest use. Typically such lands are those with soil, aspect, topographic features and present

ground cover that are best suited to a combination of forest and grazing uses. The areas

generally occupy land on the periphery of large corporate and agency holdings and tend to form

a buffer between more remote uplands and populated valleys. In addition, these “mixed use”

areas contain ownership of smaller size than in prime forest areas. Some are generally marginal

in terms of forest productivity, such as areas close to the ocean.

If land is in a zone that allows both farm and forest uses, a dwelling may be sited based on the

predominate use of the tract on January 1, 1993.

If a use is only allowed in the mixed use zone it will be explained in the text. Otherwise the uses

listed are allowed in both the Forest and Forest Mixed Use zones.

Rural Center (RC)

The purpose of the “RC” district is to provide for the development of rural commercial, tourist

commercial, residential and services facilities, necessities, convenience and supplies ancillary to

nearby agricultural, forestry, recreational and rural residential uses and activities and to conserve

energy by providing for needed commercial outlets in rural areas already “committed” as

residential/commercial nodes.

New commercial uses that are consistent with the objectives of the “RC” district are those uses

which are needed for the convenient shopping needs of the nearby rural population, and are

compatible, or can be made compatible, with surrounding properties.

Controlled Development (CD)

The purpose of the “CD-5” district is to recognize the scenic and unique quality of selected areas

within Urban Growth Boundaries, to enhance and protect the unique “village atmosphere,” to

permit a mix of residential, commercial, and recreational uses and to exclude those uses which

21

would be inconsistent with the purpose of this district, recognizing tourism as a major

component of the County’s economy.

The purpose of the “CD-10” district is to recognize the scenic and unique quality of selected

areas within Urban Growth Boundaries, to enhance and protect the unique “village atmosphere,”

to permit a mix of residential, commercial, and recreational uses and to exclude those uses which

would be inconsistent with the purpose of this district, recognizing tourism as a major

component of the County’s economy.

Rural Residential (RR)

The purpose of the “RR-2” district is to provide for small acreage dwelling sites outside of Urban

Growth Boundaries, where a moderate intensity of land development is appropriate, but where

urban services and facilities may not be available or necessary. The “RR-2” district provides for

continued existence of rural family life and to provide a transition of densities between urban

development and exclusive agricultural and forestry uses.

The purpose of the “RR-5” district is to provide for acreage dwelling sites outside of Urban

Growth Boundaries (UGB), where a moderate intensity of land development is appropriate, but

where urban services and facilities may not be available. The “RR-5” district provides for the

orderly development of rural land so as to encourage the continued existence of rural family life

and to provide a transition of densities between urban development and exclusive agricultural or

forestry uses.

Urban Residential (UR)

The purpose of the “UR-1” district is to provide for urban residential areas that are exclusively

limited to conventional single family dwellings. Detached conventional single family dwellings

clustered in planned unit developments are consistent with the objectives of the “UR-1” district.

This district shall only be used within Urban Growth Boundaries and Urban Unincorporated


The purpose of the “UR-2” district is to provide for urban residential areas that are designed to

accommodate single family dwellings, mobile homes and two family dwellings. Clustered

planned unit developments, including multi-family dwellings, are consistent with the objectives

of the “UR-2” district. The “UR-2” district shall only be used within Urban Growth Boundaries

and Urban Unincorporated Community boundaries.

The purpose of the “UR-M” district is to provide for high density urban residential areas

necessary to accommodate opportunities for the construction of multiple-family dwellings,

primarily necessary to meet the needs of low and moderate income families. The “UR-M”

district shall only be used within Urban Growth Boundaries and Urban Unincorporated


Industrial (IND)

The purpose of the “IND” district is to provide an adequate land base necessary to meet

industrial growth needs and to encourage diversification of the area’s economy accordingly. The

“IND” district may be located without respect to Urban Growth Boundaries, as consistent with

22

the Comprehensive Plan. The “IND” designation is appropriate for industrial parcels that are

needed for development prior to the year 2000, as consistent with the Comprehensive Plan.

Commercial (C-1)

The purpose of the “C-1” district is:

1. To provide for needed commercial retail and service opportunities within urban growth

Boundaries.

2. To recognize existing commercial uses outside Urban Growth Boundaries.

In using this table and reviewing the language staff would like to scale back the proposed

language. A new draft of proposed language can be found at Attachment A. Staff would

suggest that the Board of Commissioners review this language make final edits and then

post it on-line allow for an additional 30 day comment period. Once that is completed then

the language can be finalized.

Testimony Received (Attached to this report) and Response

Audrey Moss (Exhibit 59)

Ms. Moss provides a lot of irrelevant information. She starts off with SB-294 which is related to

executive session provisions of public meeting law. The Board of Commissioners has not

engaged in any type of executive session in this proceeding. The hearings and work session have

been open to the public and follows ORS 215. Ms. Moss misunderstands executive sessions

which are meetings that take place where the public is not allowed to participate. The Board of

Commissioners does hold executive sessions pursuant to ORS 192.660 but not for land use

actions.

Ms. Moss also fails to understand the difference between a “Home Rule” county that has adopted

a charter and a “General Law” county that has not. Coos County is a general law county but that

has not relevance to the current land use process. Again the land use process has been followed

as required for post acknowledgment amendments.

Ms. Moss seems to misunderstand the land use process in its entirety. Coos County is

responsible for regulating land uses, including those related to recreational and medical

marijuana, pursuant to the Coos County Zoning and Land Development Ordinance (CCZLDO).

This is the process that the Board of Commissioners, Counsel and Staff are engaged in currently

while considering text amendments to include marijuana uses. Drafts have been made available

to the public but they are in draft form until the time the Board of Commissioners adopts the

language. The draft originated prior to the recent changes to state law. This process has been in

the works with many meetings for more than a year. In this process the Board of Commissioners

will consider the draft language and evaluate the language based on the compliance with the

zoning district, state law, relevant evidence and testimony submitted into the record. There will

be several drafts before the Board of Commissioners adopts a final decision on the matter.

23

As explained throughout this document if a use is not listed it is prohibited and the Board of

Commissioners is not regulating any personal use.

Ms. Moss raises an issue with zoning compliance letters. Zoning compliance letters are issued to

show that a property is in compliance with zoning regulations and allows other agencies to move

on with applicable reviews. These are non-discretionary decision made by a planner based on

non-discretionary standards. This means that a zoning compliance letter is not appealable.

In the land use process materials are available either in the office or on-line but it is the

responsibility of the person providing testimony to have the current materials. Ms. Moss may

want to consult with a land use attorney to fully understand the process.

As to fees, the County is allowed to charge land use fees. The language she has cited is in

regards to personal use of medical marijuana and the Board of Commissioners will not regulate

personal use. Fees for land use are regulated by ORS 215.416.

Recreational marijuana has been categorized as a farm use. Staff has addressed this issue many

times in this document.

Ms. Moss’s statements bounce around to the point that it makes it impossible to respond. Ms.

Moss uses the term of legal proofs which is not defined or used in the land use terms. She has

submitted testimony and Staff assumes that legal proofs are her evidence. Staff has made a list

of issues.

o Home Rule – Planning has nothing to do with prior attempts to pass a home rule

charter. This has been attempted by citizens and the county. All testimony

regarding home rule is irrelevant to this proceeding.

o Judicial processes verse Quasi Judicial - Land use is a quasi judicial process.

There are legal processes that apply but they are not the same traditional judicial

processes. The Board of Commissioners has the ability to be more restrictive

with most land use laws. They cannot be less restrictive. Local jurisdictions have

the ability to interpret their laws. Below is an explanation of legislative function

and the quasi-judicial function of the Board of Commissioners.

The Board of Commissioners Legislative Functions

The Board of Commissioners normally operates as a policy-making body. In that capacity,

the Board of Commissioners gathers information at public hearings, from informal

conversations with citizens and others, from memoranda prepared by staff, and from other

sources. The Board of Commissioners then deliberates and implements a policy by enacting

an ordinance. This is a legislative process by which the Board of Commissioners creates

county wide policy that operates prospectively from the effective date of the ordinance. For

example, when the Board of Commissioners enacts an ordinance setting future countywide

land use standards, it is acting in its policy-making, or legislative capacity.

The Board of Commissioners Quasi-Judicial Functions

Occasionally the Board of Commissioners must act in a manner similar to a judge in a court

of law. Courts call this kind of action adjudicatory, or “quasi-judicial”. In a quasi-judicial

24

proceeding, the Council is not setting new policy but is applying policies expressed by an

existing ordinance, statute or regulation to past or present facts presented at a hearing. In

other words, much like a court, the Board of Commissioners is applying the law to facts

gathered at the hearing to arrive at its decision. Quasi-judicial land use decisions usually

apply only to a few specific properties and are not effective countywide. For example, when

the Board of Commissioners hears an appeal of a Planning Commission decision on a

specific property or development, it is generally operating in its quasi-judicial capacity.

o Ethics violation – Planning Staff is not subject to the same standards as elected

officials. However, there has been no ethics violation just someone that lacks the

knowledge of how the planning process works. Ms. Moss seems to be using the

ethics complaints as a threat to staff and the Board of Commissioners, along with

some randomly language about lobbyist. This testimony is not relevant.

o GMO Bill – The Board of Commissioners is not reviewing any language having

to do with the GMO Bill.

o Cottage Industry – This is defined the CCZLDO and the Board of Commissioners

has the right to amendment that language as needed, again it can be more

restrictive than state law.

o Edits – Ms. Moss has made suggested edits for the Board of Commissioners. She

has requested a continuation.

o OLCC – Ms. Moss does not seem to understand the difference between the

authority of OLCC and the CCZLDO. This is why a land use compatibility

statement is required at the time a license is applied for.

o Comments written on Senate Bill 294 – Ms. Moss still fails to understand the SB

294 relates to executive sessions and not to land use hearings. Furthermore, in

land use testimony (citizen submissions) is given an exhibit number. The exhibit

number is listed out in an exhibit log. All information is placed in the paper file

as well as listed on line under the appropriate file number. This is how a record is

put together. In no way does SB-294 relate to the text amendment. Ms. Moss

should consult a land use attorney to fully understand the legal processes

associated with land use.

o Most of this testimony is irrelevant or impossible to follow due to hand written

notes. Testimony shall be presented in a manner to allow the Board of

Commissioners to address it or it may preclude an appeal to the Land Use Board

of Appeals on that issue. The problem with this testimony is it hard to follow due

to changes of thoughts, writing on the side, back or over the top of other

testimony and excessive highlighting. Her testimony seems to be focused on

what the job duties of the staff and Board of Commissioners are and not the

relevant criteria. This may be an attempt to raise a procedural issue but it is not

defined in such a way to allow the Board of Commissioners to address her issues.

Wendy Moss (Exhibit 60 - 61)

Ms. Wendy Moss fails to understand the land use process. The legislative process in this case

will require that the Board review several drafts before adopting the final language. The Board

25

of Commissioners has provided comment periods on each draft. There have been changes to the

marijuana laws which require changes to the text of the proposed ordinances.

The Board of Commissioners has stated in the latest draft that medical marijuana grow sites that

comply with the Oregon Health Authority rules regarding medical marijuana grow sites will not

be regulated by the CCZLDO. Medical marijuana processing in conjunction with a grow site that

meets the requirements of Oregon Health Authority shall be allowed without further

authorization from Coos County. Any structures that are associated with this use shall be

required to receive proper permits.

Ms. Wendy Moss fails to understand land use regulations and how the county regulates land use.

This is evident in her statements where she uses the word “charter”. Coos County is not under

any type of charter as that only applies to home rule counties. Coos County is a general county

and follows the land use laws as incorporated in the Coos County Comprehensive Plan and

Implementing ordinances.

Ms. Wendy Moss does raise a valid issue regarding state law allowing for certain marijuana uses in

EFU/FMU. However, the statement made about choosing not to regulate marijuana in EFU/FMU is

false if it is not a listed use it is prohibited. The prohibition of marijuana is not an option. The draft

language states that Recreational Marijuana grow sites will be authorized as a outright use farm use

subject to the development standards including the fire and safety setbacks listed in the Forest Mixed

Use and Exclusive Farm zones.

Ms. Wendy Moss has provided a lot of information but most of it is not relevant to the current draft.

Fees are not prohibited for land use applications and/or decision. There was information regarding

taxes but that has nothing to do with the CCZLDO.

Staff note: Ms. Wendy Moss provided you copies of HB 3400-A (page 19) as her evidence but staff

wants the Board to see under § 34(3) the word “may”. This means the county may choose to allow

marijuana as a farm use on properties zoned for farm or forest use in the same manner as the

production of marijuana is allowed in exclusive farm use. The county is not required to or the word

“shall” would be used. Staff did not include primary forest because it is a conflict with the definition

of forest. There are very few places in Coos County that are zoned F without a mixed use overlay.

Vicky Sanders (Exhibit 62)

Ms. Sanders does not understand that Coos County is trying to enact land use rules to allow for

medical and recreational marijuana and without these rules the use would be prohibited. The

Board of Commissioners included language to exempt personal use of marijuana.

Susan Anne Donely (Exhibit 63)

Ms. Donely’s has requested to not regulate marijuana; however, if the uses are not incorporated

into the CCZLDO marijuana uses will be prohibited.

26

Liz Marr (Exhibit 64)

Ms. Marr suggests that regulations should be the same as liquor stores. She does not provide and

direct comments and refers to a dispensary in North Bend and accident in Junction City but does

not elaborate.

Linda Weirup (Exhibit 67)

Ms. Weirup provided comments on recreational and medical dispensaries; however, none of her

comments relate to the current proposal. She also states that people should be able to grow for

their personal use. Coos County is not regulating personal use.

Matthew Deatherage (Exhibits 68-70)

Mr. Deatherage provided several comments. The first one found at Exhibit 68 is a list of studies

showing the medical benefits of marijuana. This testimony has no bearing on land use

regulations. Marijuana production, processing and sale are no different than any other land use

when it comes to administering the zoning ordinance. As with other land uses, the appropriate

zoning district(s) to locate marijuana businesses is based on the characteristics of the business

(growing, processing, wholesaling, retailing or a combination thereof), and how that business

will conform to the purpose and intent of the zoning district. The Board of Commissioners must

decide on a use based on land use components and how they conform to the zoning districts.

What the product is used for is not valid other than to determine how the product is made and/or

sold. If the request is strictly for retail that would meet the purpose and intent of commercial

zones but if the intent is to package and ship a product that would be manufacturing job that

would comply with industrial zones.

Mr. Deatherage provides written testimony found at Exhibit 69. In that testimony Mr.

Deatherage cites a portion of the Tenth Amendment for the United States Constitution which has

no relevance on land use at all. The Tenth Amendment, which makes explicit the idea that the

federal government is limited to only the powers granted in the Constitution, has been declared

to be a truism by the Supreme Court. This has no relevance on local land use process. Staff is

unsure from this testimony if Mr. Deatherage is trying to state this is not a legislative process or

if he is trying to argue that the Board of Commissioners has no right to impose zoning laws,

regardless neither statement is correct. Mr. Deatherage has failed to cite relevant criteria. The

Board of Commissioner is not repealing any law outside of their legal powers.

The term “Legislation” is used for local text amendments. Legislation is enacted at the local

level is usually enacted in the form of an ordinance, although local law is sometimes enacted as

regulation. There is no clear and simple distinction between an "ordinance" and a "regulation."

An ordinance is usually defined as a law adopted by a county, while a regulation may be adopted

by state, federal, municipal or other agencies. In practical terms, an ordinance and regulation is

often the same thing and may both operate as law.

Mr. Deatherage raises issues with how cannabis odor a pollutant but there is nothing in the

language that states cannabis is a pollutant. His last statement is regarding funding from permits.

https://en.wikipedia.org/wiki/Truism

27

The Planning Department is a non-general fund department and none of the fees goes toward the

Board of Commissioners or any type of public employee program raises. Mr. Deatherage’s

testimony indicates his lack of knowledge regarding the land use process, the tenth amendment

and county funding.

Mr. Deatherage has submitted a petition found at Exhibit 70. Pursuant to Article 5.7 of the

CCZLDO “[a]ny party may submit a petition into the record as evidence. The petition shall be

considered as written testimony of the party who submitted the petition. A petition shall not be

considered to be written testimony of any individual signer. To have standing, a person must

participate orally at the hearing or submit other individual written comments. Anonymous

petitions or petitions that do not otherwise identify the party submitting the petition shall not be

accepted as evidence”. The petition itself provides no relevant testimony.

Mr. Deatherage fails to understand if the use, regardless of the type of use (growing, processing,

retailing) is not listed in the CCZLDO it is specifically prohibited. Therefore, Mr. Deatherage is

asking to keep a prohibition on any uses related to marijuana. This would violate the state law

and the intent of the voters.

Patrick Burke (Exhibit 71)

Mr. Burke provides a historical view of cannabis in the beginning of his testimony. Under his

solutions he interprets the Board of Commissioners land use process as an agenda. The Board of

Commissioner’s only agenda is how to allow uses related to marijuana in the CCZLDO.

Marijuana production, processing and sale are no different than any other land use when it comes

to administering the zoning ordinance. As with other land uses, the appropriate zoning district(s)

to locate these businesses will be based on characteristics of the business (growing, processing,

wholesaling, retailing or a combination thereof). The Board of Commissioners shall consider if

the use conforms to the purpose and intent of the zoning district. If the Board of Commissioners

does not list the uses it is the same as prohibiting any uses related marijuana. Staff has suggested

listing out other agencies that may require permits as a helpful tool but that seems to have a

negative outlook from Mr. Burke and others. All testimony has been accepted throughout this

process. There is no avenue as suggested by Mr. Burke to listen to one side over another side.

All testimony is reviewed based on the criteria and, although Mr. Burke provided a well written

letter it does not address any specific criteria and how it does not conform to the CCZLDO or

state law.

Jim Deatherage (Exhibit 72)

Mr. Deatherage is requesting to defer adoption of any rules regarding medical or recreational

marijuana but as stated before, this would place a prohibition on any marijuana related use and

cause an increase in enforcement actions.

Randy E. Bendel (Exhibit 73)

Notice of text amendments were mailed, posted and published in May of this year. Since that

time period there have been several open record periods. The Board of Commissioners will

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continue to work on the draft until they determine it is complete. The drafts were not hostile but

the land use issues associated with medical and recreational marijuana in Oregon are very

dynamic. In Oregon, there are court opinions, pending litigation, various interpretations of the

law, new legislation, existing laws regulating medical marijuana, and new administrative rules

forthcoming regulating recreational marijuana – all of which may influence the regulation and

implementation of medical and recreational marijuana land uses.

The local regulations do not relieve compliance with state regulations. The local regulations do

not pre-empt OLCC the square footage and setback requirements are to ensure that a use

complies with a zoning district. Mr. Bendel talks about organic processes but that is outside the

realm of planning.

Mr. Bendel does raise a good point about the 1,000 foot setback and that should only apply to

dispensaries. City coordination has not been addressed because of the various zoning and zoning

regulations that the cities have to comply with are different. For example farm use are not going

to be allowed in most city zoning where the county allows for farm uses in most of the zoning

districts.

Mr. Bendel is correct in his statement “that you have to know your location,” as land use is both

general and detailed. The general part is the zoning as it has many uses listed under a zoning

district but there are some many factors of a particular property that determine if a use or uses

can be allowed.

Sheri McGrath (Exhibit 74)

Ms. McGrath raises a valid point about having zoning that would allow for growing, processing

and retailing. Staff put together a chart to show zones that can allow for all of these uses.

Commercial and mixed commercial are appropriate to allow for all uses. Staff has provided

suggested edits to the proposed language found at Attachment A.

Ms. McGrath states that commercial uses are only allowed as a Hearings Body Conditional Use

in the Rural Center (RC) zoning district and she believes this was an oversight when the

ordinances was rewritten and should be addressed. Staff reviewed the prior ordinance language

and she is incorrect, the only difference from in the prior version is the matrices were used to list

out uses and now they are in an outline view. However, staff does not disagree that some of

these uses should be administrative instead of requiring a public hearing. It could be that they

were thought to be controversial at the time the original ordinances were drafted. Staff will add

this suggestion to the work plan to review when working future updates.

As for uses related to retail and processing of marijuana the Board of Commissioners has

discretion in this zoning district to make these uses a conditional use or permitted use. This is

the same with Controlled Development (CD). Although, in the CD zoning the properties are

much smaller and there is an urban level of density and a conditional use seems to be appropriate

for this zone.

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Ms. McGrath raises a good point in regards to odors, as it is very subjective. The language for

odors was part of a sample text that was provided to the counties for guidance at the beginning of

this process. It is reasonable to remove this requirement as it would be very difficult to enforce

and this is not required for other uses. If there is an air quality concern the Department of

Environmental Quality (DEQ) would be the enforcing agency.

Ms. McGrath asked about disposal and staff believes it can be picked up in everyday garbage.

In her next section she raises issue with the facility location stating that the same setback should

be applied to alcohol and tobacco; however, marijuana (ORS 475.059) is classified as a

controlled substance but alcohol and tobacco are not. Based on the fact that marijuana is

considered a controlled substance it would be better to compare it to a pharmacy and in that case

the analogy would be correct and the setbacks should be the same.

Pharmacy or Drug Stores are listed uses in various zones in CCZLDO.

Controlled Development - Drug stores are listed as a conditional use subject to

compatibility, development standards, size limitations and parking standards.

Commercial – Drug stores are listed as permitted subject to development standards, size

limitations and parking requirements.

Industrial - The assembly, manufacturing or packaging, processing, production, storage

or treatment of products includes drugs. This is permitted outright subject to

development standards, size limitations and parking standards.

Having done this comparison there is a flip side to marijuana as it has been listed for recreational

purposes as agricultural product but does not enjoy all of the agricultural benefits. Agricultural

uses (growing and some types of processing) would be allowed outright in most zoning districts.

The retail, packaging and labeling are not. Retail is allowed in commercial and mixed

commercial zones. Packaging and labeling are allowed in industrial zones. This is why this

subject is so complex.

The Board of Commissioners specifically requested comments on the setback issues. Staff

opinion is this use should not be treated differently unless required by state law. Therefore,

removing the additional setback requirements would be justified.

Ms. McGrath raises some good questions in her number 8. However, I do not believe there are

clear answers for example other retail business wants to sell cannabis products would they have

to receive special licenses through OLCC. The laws are not well defined in this area and it

would be hard to address this in the CCZLDO. I think that these issues will be answered and an

amendment may be required.

As far as signage requirements, there are requirements for sign sizes but they only pertain to

home occupation and cottage industries. Staff was trying to be consistent but it may be that we

address this through a sign ordinance and not a specific use.

Ms. McGrath addresses concerns about limiting the number of employees and this should be

reviewed. We took testimony at the hearing that raised some of the same concerns.

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She raised a question about the compatibility statement. The term compatibility has been

defined through case law. The term compatibility means that the proposed use is capable of

existing together with the surrounding uses without discord or disharmony. The test is where the

proposed use is compatible with the existing surrounding uses, and not potential or future uses in

the surrounding area. This was expanded on through the last set of text amendments to define

the surrounding area to mean abutting properties within the notification area. For example if

your use is located in the rural area the distance would be 250 feet from the subject property.

Ms. McGrath has some repeated comments but included under the different headings to follow

the same format as the draft ordinance. Staff did not address duplicated comments.

Forest zone was not included because that zone is reserved for exclusive forest where mixed

farm and forest seemed appropriate. The last point that needs to be addressed in the indoor,

outdoor grow. Originally when the draft was done the Board of Commissioners wanted to restrict

the growth to indoors. This was before the state law was modified and staff suggests that this be

removed.

Exhibits 65, 67 and 75 through 125

This is a form letter much like a petition that different people have signed. The from letter

opposes AM-15-05 parts B and C due to setbacks, assertion that implementation would cripple

legal marijuana growers by over regulation resulting in thriving black market and the letter

suggest that Coos County should follow the guidelines in place by the State /OMMP.

The problem with this letter is not specific enough to address any of the criteria. Making

statements without facts or statements sufficient to allow a decision maker the ability to respond

precludes an appeal to the Land Use Board of Appeals. This letter falls in that category by not

provided evidence or facts to back up the statements. The Board of Commissioners is not

disputing medical aspects of the actual product. The job of the Board of Commissioners is to

classify the uses related to the product in the zoning ordinance.

The author of this letter failed to read the draft ordinance which states , medical marijuana

grow sites that comply with the Oregon Health Authority rules regarding medical

marijuana grow sites will not be regulated by the CCZLDO. Medical marijuana processing

in conjunction with a grow site that meets the requirements of Oregon Health Authority

shall be allowed without further authorization from Coos County. Any structures that are

associated with this use shall be required to receive proper permits.

It is staff’s opinion that a lot of misinformation was provided to current Oregon Medical

Marijuana Patient card holders in order to obtain signatures on petitions and form letters. As a

suggestion for future testimony the language should be read and specific language should be

addressed. Ms. McGrath testimony is an example of helpful testimony. She did provide personal

opinion but there were a lot of facts and valid questions raised. She also understands if a use is

not listed it is the same a prohibiting that use.

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Exhibit 124 is a brochure from Coos County Cannabis Community. Again the author of this

brochure only places bits of the language which is misleading and this provides no relevant

evidence or testimony for this proceeding.

Exhibit 125 adds additional comments to the form letter but again the statements made are not

addressing any criteria.

Robert Metcalf (Exhibit 126)

Mr. Metcalf claims that it is premature to add new uses to the ordinances as rules are changing at

the state level. Staff has reviewed the adopted changes that pertain to the proposed uses. Mr.

Metcalf fails to understand that if the use is not listed it is prohibited. He has testified he has a

dispensary but it is located within city limits and any ordinances amendments do not pertain to

uses inside of the city limits.

Stefani Eaton (Exhibit 127)

Ms. Eaton has submitted a petition. Pursuant to Article 5.7 of the CCZLDO “[a]ny party may

submit a petition into the record as evidence. The petition shall be considered as written

testimony of the party who submitted the petition. A petition shall not be considered to be

written testimony of any individual signer. To have standing, a person must participate orally at

the hearing or submit other individual written comments. Anonymous petitions or petitions that

do not otherwise identify the party submitting the petition shall not be accepted as evidence”.

The petition itself provides no relevant testimony.

In the written explanation of the petition Ms. Eaton has, like many other, requested a prohibition

on marijuana associated uses. She also did not understand that medical marijuana grow sites that

comply with the Oregon Health Authority rules regarding medical marijuana grow sites will not

be regulated by the CCZLDO. Medical marijuana processing in conjunction with a grow site that

meets the requirements of Oregon Health Authority shall be allowed without further

authorization from Coos County. Any structures that are associated with this use shall be

required to receive proper permits.

She makes comments about medical dispensaries but that language was already decided upon

and comments related to them are not relevant.

As with others, she urges the commission to only consider the medical marijuana patients. Land

use is not allowed to consider one group over another that would be discrimination. Decisions

are based on relevant testimony and evidence. Her concern is appreciated but none of the

statements made are relevant to the criteria.

Gene Landrum (Exhibit 128)

Mr. Landrum seems to be taking issue with hemp growing verses marijuana growing but does

not elaborate in a fashion that would allow staff to provide a response. There is no relevance to

the draft ordinance on marijuana.

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Exhibits 129-161

This is a form letter much like a petition that different people have signed. The from letter

opposes AM-15-05 parts B and C due to setbacks, assertion that implementation would cripple

legal marijuana growers by over regulating resulting in thriving black market and the letter

suggest that Coos County should follow the guidelines in place by the State /OMMP. This form

letter has been expanded to include a statement that it is premature to add new uses to the

ordinances as rules are changing as the state level. This legislative session has been adjourned

and any proposed amendments will not be considered until the next secession. Staff has

reviewed the adopted changes that pertain to the proposed uses.

The problem with this letter is it is not specific enough to address any of the criteria. Making

statements without facts or statements sufficient enough to allow a decision maker the ability to

respond precludes an appeal to the Land Use Board of Appeals. This letter falls in that category

by not provided evidence or facts to back up the statements. The Board of Commissioners is not

disputing medical or no medical benefits of the actual product. The job of the Board of

Commissioners is to classify the uses related to the product in the zoning ordinance.

The author of this letter failed to read the draft ordinance which states , medical marijuana

grow sites that comply with the Oregon Health Authority rules regarding medical

marijuana grow sites will not be regulated by the CCZLDO. Medical marijuana processing

in conjunction with a grow site that meets the requirements of Oregon Health Authority

shall be allowed without further authorization from Coos County. Any structures that are

associated with this use shall be required to receive proper permits.

Galen Black (Exhibit162)

This is hand written letter urging the Board of Commissioners to gather the facts but does not

explain in detail what fact the Board of Commissioners is missing. As stated in prior responses

the proposed ordinance will not regulate personal medical use of marijuana.

Teresa Mather (Exhibit 163)

Ms. Mather has provided a news articles but they seem to be for information. She does not

provide any reasons for the articles and the articles do not address any criteria.

Bonnie Bolle (Exhibit 164)

Ms. Bolle provided information from many sources to support legalizing cannabis. She does not

provide any reasoning for the information or a link to why this is relevant to current draft

ordinances.

Cathryn Stocco Olds (Exhibit 165)

Ms. Stocco Olds comments pertain to a prior draft and she has not updated her testimony to

address any of the new draft language.

ATTACHMENT A FINAL REVISED DRAFT

DEFINITIONS

Marijuana processor: a person who processes marijuana items in this state. If the marijuana processor processes

marijuana extracts, may not be located in an area zoned exclusively for residential use.

Marijuana producer: a person who produces marijuana in this state. Produces means the manufacture, planting,

cultivation, growing or harvesting of marijuana.

Marijuana retailer: a person who sells marijuana items to a consumer in this state.

Marijuana wholesaler: a person who purchases marijuana items in this state for resale to a person other than a

consumer.

Marijuana Processes: the processing, compounding or conversion of marijuana into cannabinoid products,

cannabinoid concentrates or cannabinoid extracts. Processes does not include packaging and labeling.

ZONES

Exclusive Farm and Forest Mixed Use Zones

Grow/Production, Small Scale Processing as allowed by ORS 215.283(1)(r) and Wholesaling of Marijuana is permitted as

a farm use subject to applicable development standards in Exclusive Farm Use and Forest Mixed Use. Structures will

require permits. Notwithstanding ORS chapters 195, 196, 197 and 215, the following are not permitted uses on land

designated for exclusive farm use:

1. A new dwelling used in conjunction with a marijuana crop;

2. A farm stand, as described in ORS 215.213 (1)(r) or 215.283 (1)(o), used in conjunction with a marijuana crop;

and

3. A commercial activity, as described in ORS 215.213 (2)(c) or 215.283 (2)(a), carried on in conjunction with a

marijuana crop.

Controlled Development and Rural Center (mixed commercial residential zones)

1. Grow/production is permitted in Rural Center and Controlled Development as a farm use subject to applicable

development standards.

2. Processing, Wholesaling and Retail/Dispensary for recreational or medical marijuana requires a conditional use

subject to the following:

a. The proposed use must be found compatible with surrounding uses or may be made compatible through the

imposition of conditions. b. Buildings shall not exceed the floor area standards set forth in OAR 660-022-0030(10).

c. Use is subject to the development standards.

d. Requires a parking plan.

e. Retail/Dispensary facilities may not be located, at the time of an application, within 1,000 feet of:

i. A public elementary or secondary school for which attendance is compulsory under ORS 339.020; or

ii. A private or parochial elementary or secondary school, teaching children as described in ORS

339.030(1)(a).

Rural Residential and Urban Residential

Grow/Production is permitted as a farm use subject to applicable development standards.

Industrial

Grow/production, processing and wholesaling is permitted subject to the following:

1. Shall comply with applicable development standards.

2. All industrial uses shall be located in building or buildings not to exceed the floor area standards set forth in OAR

660-022-0030(11).

Commercial

Grow/production, processing, wholesaling, retail/dispensary is permitted subject to the following:

1. Shall comply with applicable development standards.

2. All commercial uses shall be located in building or buildings not to exceed the floor area standards set forth in OAR

660-022-0030(10).

3. Retail/Dispensary facilities may not be located within 1,000 feet of:

a. A public elementary or secondary school for which attendance is compulsory under ORS 339.020; or

b. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a).

Memo to BOC 8-26-15 w-attachments.pdf

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