Services Departments Government

Planning Commission Minutes
Feb. 13, 2017
6:30 p.m., DSB Auditorium

Commissioners present:  Michael Wilson, Gail Holmes, John Drentlaw, Michael Wagner, Thomas Peterson, Mark Fitz, John Gray.

Commissioners absent:  Brian Pasko

Staff present:  Glen Hamburg, Ben Blessing, Jennifer Hughes, Mike McCallister, Darcy Renhard.

  1. Commission Chair Drentlaw called the meeting to order at 6:30 p.m. 
  2. Chair Drentlaw asked if there was anyone who wished to provide public comment to an item not on the agenda.  There was none.
  3. Chair Drentlaw opened the public hearing for ZDO-263, which are proposed amendments to the marijuana ordinance.  Jennifer Hughes added exhibits 3 and 4 to the record.  This proposal is a legislative text amendment to the Clackamas County Zoning Ordinance.  Clackamas County first adopted the marijuana ordinance in 2016, and regulations were effective in January of 2016.  The Board of County Commissioners and the Planning Division both realized that there may be a need for some refinements to the ordinance in the future.  During discussions regarding the 2017-2108 Planning Work Program, the BCC directed staff to pursue a narrow set of amendments regarding fencing requirements, to amend the ordinance according to changes in State law, to add clarification to some language that is unclear, and to add processing as an allowed use in EFU and AG/F zones.  The current proposal is to amend sections 202, 316, 401, and 841 for these purposes.<

    Staff is proposing that there be a maximum height of 10 feet for fencing for any property that has a marijuana use.  Our concern is that properties may end up with fencing that looks like a prison.  Our proposal mirrors what is in the Multnomah County ordinance.  The significant issue for consideration is whether or not the fencing standard would be appropriate or too restrictive.

    The second issue for discussion is whether it is appropriate to permit the processing of extracts and/or concentrates in EFU and AG/F zones.  State law does provide for a certain level of processing for all agricultural uses and permits up to 10,000 square feet of processing space provided that 25% of the crops used are grown on site.  It doesn’t matter if it is pumpkins or marijuana.  The BCC’s concerns in the original approved ordinance were for safety, so the processing of concentrates and extracts were excluded.  Staff met with fire district personnel and other people who are involved in the marijuana industry.  There does not seem to be a consensus on the safety issue and whether or not it should be treated the same way as other agricultural processing facilities that employ similar processing technologies.  The State Building Codes Division advises that the processing of marijuana in agricultural zone can be done in an ag exempt building, which means that the County cannot require a building permit.  Electrical, mechanical, and plumbing permits would be required, though.  Someone could choose to get a building permit, but they would not be required to do so.  This could raise issues of exits, storage, and other safety concerns.  OLCC regulations require that structures must meet the Oregon Fire Safety Code.  One option that staff is suggesting is that even if we don’t move forward with extract processing, we could go ahead and allow concentrate processing which is a mechanical process, whereas processing of extracts is a more volatile procedure.

    The third issue that staff has raised is what the minimum lot size, setback, and structure separation requirements should be if we do allow processing.  The draft proposal requires a minimum 20-acre lot size, 100-foot setbacks, 150-foot separation between a processing facility and another structure that is not part of the same property, and a 1000-foot separation from residential zones.  It appears that all four standards would address the same issue, which setbacks alone could resolve.

    Staff’s recommendation is that the PC recommend approval of these standards, but that we would not allow extract processing in the AG/F or EFU zones.  Concentrate processing would be allowed on tracts that are a minimum of 20 acres.

    Commissioner Wagner asked what the difference is between concentrates and extracts.  Ben Blessing explained that either could be used in edibles or for other products, but that the production of concentrates uses a much less volatile process than extracts, which are produced using a hydrocarbon-based chemical process.  Commissioner Fitz asked if staff had considered just stating in the code that if butane or propane are used, then they must follow the appropriate fire code.  Jennifer replied that the fire department does not see itself as having the regulatory authority that OLCC states.  Commissioner Fitz said that if butane or propane are used for any of form of processing, then the Fire Marshall would have requirements.  Jennifer explained that the requirement is to have the butane or propane tank permitted through the State Fire Marshall, not the entire operation.  Only the tank itself is subject to the Fire Marshall requirement.  Commissioner Drentlaw asked what would prevent lots from being separated in the future if we allowed multiple lots to be considered together as a tract for permitting purposes.  Jennifer answered that those properties could be separated (sold separately) in the future, but the operation  would be in violation of their permit if the separation resulted in setback distances no longer being met.  Commissioner Drentlaw said that the industry seems to be elusive in nature.  He would not be able to put his construction workers in an environment with this type of setup.  Why are we allowing an industry with these safety risks to have an easier way around the rules?  Commissioner Fitz is worried that if we don’t allow it on more fertile properties, then we are going to lose the credible players.  These operations are going to exist, whether we permit them or not.  Commissioner Wagner argues that this is not a good reason to not have standards in place.

    Commissioner Drentlaw opened the hearing for public testimony.  There were no CPOs, hamlets, or villages that wished to provide testimony.  There were no other agencies who wished to provide testimony.

    Derek Metson (1300 John Adams St., Oregon City)-Mr. Metson has worked in the marijuana industry for a number of years now.  He feels that the staff recommendation is for the most part reasonable.  There are only a few types of extraction that use flammable chemicals.  Perhaps the code could be written in such a way as to call out processing when flammable chemicals are used.  Commissioner Wagner asked what people are making with extracts and why.  Mr. Metson explained that it was a similar process for decaffeinating coffee and to get essential oils.

    Timothy McNutt (14818 S. Teasel Creek Rd., Molalla)-Mr. McNutt is a small farmer who has extracted oils in the medicinal marijuana industry as well as making other essential oils for his cottage business.  He agrees that the marijuana industry has gone on without regulation for a long time, but thinks that imposing greater regulations will only invite more bad actors.  The division between concentrates and extracts is that concentrates would include something like hashish.  Splitting hairs and putting cumbersome regulatory structures into effect will not accomplish what the County wants as far as good businesses. Commissioner Wilson asked how much impact the proposed regulations will have on Mr. McNutt’s business as a small farmer.  Mr. McNutt replied that businesses will go to the most suitable location for their purposes.  It would cut off more than half of the market for him.

    Matt Wallstater (24700 S. Mulino Rd., Canby)-Mr. Wallstater is the owner of Pure Green and currently is building a business site within the County.  On behalf of the Oregon Cannabis Association, he would like to say that the proposed regulations are too restrictive and feels that a 5 acre minimum for processing and a 50 foot setback all around would be more than adequate.

    Shirley Morgan (PO Box 1351, Welches)-Clackamas County has received over 200 land use applications for marijuana operations.  There are already two cases in Oregon where extract facilities have exploded and completely destroyed the buildings.  A lawsuit ensued on one for failure to adhere to safety protocols and negligence.  Isn’t is wiser to engage unused industrial land for these processing purposes?

    Jesse Peters (29920 SW Old Well Rd., West Linn)-Mr. Peters has a 20-acre production facility in Canby.  He is also a professional firefighter and a Marine Corps veteran who has worked with explosives.  This industry is no different than other extraction processes for lavender, hops, canola oil, etc.  Processing concentrates is no different safety-wise than furling your hair at home.  He asks that he be treated no differently than any other agricultural processor.  The two explosions that have happened in Oregon were both in unpermitted, illegal facilities.  The buildings were not to code.  Those who want to play by the rules should be given the opportunity to do so.

    Theodore Handris (13455 S. Leland Rd., Oregon City)-Mr. Handris has been observing the progress of the grow operation on Leland Road.  This operation is using power that is more than the one breaker can handle.  They are going to cause power outages.  Now there is another grow operation that is being built ¾ of a mile down the road.  It is very doubtful that PGE is going to pay for the new transformers that these operations will need in order to run and not cause power outages.  These operations should have been placed in an industrial area with the capacity to provide the utilities that they will need.

    Sylvia Handris (13455 S. Leland Road, Oregon City)-Mrs. Handris feels that they have been violated under the laws and not given the right to voice their concerns prior to losing their peace of mind, not to mention their property value.  She is waiting for the inevitable impacts of having this operation next to their home and their personal well.

    Kendall Evans (13200 S. Warnock Rd., Oregon City)-Dr. Evans shared excerpts from the OSHA Standards and the Right to Farm Act and compared them to all subsections of ZDO section 841.

    Mary Skibbie (13102 S. Warnock Rd., Oregon City)-  Ms. Skibbie is concerned in particular with section 841.  The things that were mentioned by Dr. Evans are applicable to 841.04 and must conform to local, State, and national regulations.  All solvents per Colorado’s new processing law should be excluded.  Applicants must provide a copy of a $20 million liability policy, and an engineer must demonstrate that the filtration system is 100% effective.  She would like the language regarding research permits removed.  Clackamas County must hire an industrial research staff person to oversee compliance with marijuana regulations.

    Jerald Myra (21346 S. Milligan Rd., Oregon City)-There is one pot grow in his neighborhood and it is a real eyesore.  The measures that are currently in place do not deter the criminal activities, as these take place at night.   Since this operation doesn’t have a license, they probably aren’t reporting the crimes.  It looks like it is a prison with the barbed wire enclosure that they have put up.  He feels that the fence should be to protect the grow operation as well as the neighborhood around it.  He would like to see a fencing standard similar to Deschutes County.

    Barbara Evans (13200 S. Warnock Rd., Oregon City)-She has heard a lot of testimony on how great marijuana is going to be, but nobody talks about the number of dogs or cats that have died because of it, or the decrease in the intelligence of people who are using it.  There is a new disease where the only cure is to never have marijuana again.  On October 19, 2016, Jacob Magly was working as a contractor for a marijuana processing business in Astoria.  The blast that initiated from the basement of the building destroyed the entire building and caused Mr. Magly great personal harm.  Evidence points to the blast coming from the butane gas that is used to make the hash oil.  Both workers who were in the building at the time of the explosion had to be Life-flighted to the OHSU burn center.  Making extracts is a risky business that has gone on without regulations for a long time now.

    Aaron Ramirez (1201 Linn Ave., Oregon City)-On January 6, 2017, the only Oregon City Grille caught fire because of an illegal marijuana processing facility.  We are here to discuss whether we should allow clean, safe laboratory facilities for processing cannabis extraction, which is a heavily regulated industry.  The same technology is used for making decaf coffee and peanut oil.  He recommends that the processes that use flammable chemicals must be required to follow the same standards as other comparable industries with similar processes.  Commissioner Wagner asked Mr. Ramirez what he uses these products for as a doctor.  Mr. Ramirez answered that he is not a medical doctor; he is using this as a business opportunity.  Commissioner Drentlaw asked how the marijuana industry is going to be more prosperous due to less regulation.  There is no evidence of any industry in this country flourishing by having less regulation.  Mr. Ramirez is not asking for a lack of regulation in the marijuana industry, he is asking for clean, compliant, and safe facilities.

    Jean Roberts (Sandy, OR)-Ms. Roberts already lives next to a concentrate processing site.  There is constant concern regarding potential explosion, and the smell can be overpowering.  They burn pot piles on no-burn days, they have frequent loud parties.  This is simply not a place for this type of operation to be.  She is not aware of any other farm product that smells like skunks all year round or is federally illegal.  She asks that processing facilities be allowed only in the industrial areas.

    Jack Carlson (13517 S. Leland Rd., Oregon City)-Mr. Roberts described the Magly lawsuit regarding the safety deficiencies in the processing facility and the Oregon City Grille explosion.  There are serious safety concerns for the neighbors and surrounding property owners of these sites.

    Laura Underwood (48400 Wagoneer Loop, Sandy)-Ms. Underwood has concerns because of the potential safety risks to the surrounding neighbors if marijuana processing is allowed.  The Astoria facility had so many workplace safety violations, and we don’t have the code enforcement to ensure that these incoming processors will be in compliance even if we do have regulations and standards.  She asks that the processing businesses be prohibited in the AG/F and EFU zones.

    Bernice Carlson (13517 S. Leland Rd., Oregon City)-Ms. Carlson lives next to a marijuana grow operation in an EFU zone.  What was once a beautiful 4-acre pasture is now an operation with 6 proposed indoor greenhouses, all within 10 feet of her property.  Complaints were filed because there is a lack of sanitary facilities, they have loose dogs running around, they are illegally using the well, and this is not a crop like strawberries.  She no longer feels safe and secure.  Her property investments have not been protected.  Ten foot setbacks on 5-acre parcels are not enough.  There also needs to be an inspection prior to giving approval to these businesses.

    Chari Drentlaw closed the public testimony portion of the hearing and opened deliberations.

    Commissioner Peterson brought up the question of power usage on these properties.  It is an interesting dilemma, but it is not unlike having a zone change.  He asked how it works when you have a change of land use and how it drives infrastructure changes that are necessary to accommodate the changes.  Jennifer explained that from a land use perspective, the County Code does not specifically address power supply.  We do have standards for traffic and sanitation requirements.  We might have some control through a conditional use permit to require conditions that would mitigate the issue.  Mike McCallister said that he is not aware of any circumstance where we have evaluated the utility capacity.  Commissioner Peterson said that it strikes him as a challenge similar to putting in a residential development.

    Commissioner Holmes is concerned about these facilities burning on non-burn days.  Jennifer replied that these incidents should be reported to the fire department.  Commissioner Peterson does not recall any complaints about the lavender farm doing extracts.  Jennifer explained that they went through a zone change to rural industrial, which in turn meant that they had to obtain a building permit.  The main concern was the storage of the tanks of oils.  Commissioner Wagner did not hear anything about the life-saving aspects of marijuana this time, so he is good with staff’s recommendation as it is.  Commissioner Drentlaw said that the lavender farm went through the zone change process and came into compliance, whereas here we are talking about processors who may be out of compliance and are making no effort to come into compliance.  He compared people not being allowed to use heavy machinery when they are under the influence to employees in these facilities being under the influence and using highly flammable materials.  Commissioner Fitz believes that we should allow for the processing of extracts, as well as concentrates.  If they are a real business, then they are going to have insurance which will put them in a position of needing to comply with legal requirements.  Whatever we do, it doesn’t fix the problem of the bad guys who are not in, and have no intent of becoming, compliant with County Code.  Commissioner Drentlaw does not see why there should be any change to the Code other than to clean up the pieces that need it.  Otherwise, he thinks it should be left alone.  Commissioner Holmes asked if someone is contaminating the water table with their agricultural operations, will it only be answered by filing a complaint?  Jennifer explained that wells are regulated by the State, not the County.  Mike McCallister said that he suspects that it would be a civil matter, unless is really caused by unacceptable farm practices in which case it would go to the Oregon Department of Agriculture.  We need to look at this in terms of the land use impacts, because that is what the Land Use Planning Division does.  We need to focus on what the land use impacts are.  In terms of land use, there are 3 areas of focus: fencing, processing, and minimum lot sizes/setbacks.  We should evaluate based on what the surrounding property uses are.

    On the question of cleaning up the language, all commissioners agree that it is a good idea.  All commissioners agree that the 10-foot fencing standard is the proper approach.  Commissioner Fitz asked if there should be some sort of design standards.  Commissioner Holmes said that Deschutes County has some sort of stipulation that the fence have some sort of natural look to it and not be institutional in appearance.  Jennifer explained that that the standards should be clear and objective and not open to interpretation or be subjective.  Commissioner Wilson asked if the fencing standards would apply to the entire property if it is multi-use with marijuana.  Jennifer confirmed that they would.  Commissioner Wagner recommends approval of the fencing standard as presented by staff.

    Commissioner Wagner moved to recommend approval of the housekeeping amendments as presented by staff.  Commissioner Drentlaw seconded the motion.  Ayes=7, Nays=0. Motion passed.

    Commissioner Wagner moved to recommend approval of fencing standards as presented by staff.  Commissioner Fitz seconded the motion.  Ayes=7, Nays=0.  Motion passed.

    Commissioner Drentlaw moves to keep the existing code with no changes to processing in the EFU and AG/F zones.  There was no second.  Motion failed.

    Commissioner Wagner moved to recommend approval of staff’s recommendation on page 9 which would add concentrate processing as a permitted use to EFU and AG/F zones, but would not allow processing of extracts.  Ayes=5 (Wagner, Peterson, Fitz, Holmes, Wilson), Nays=1 (Drentlaw), Abstain=1 (Gray).  Motion passed.

    Commissioner Peterson feels that there should be money set aside for enforcement of the marijuana ordinance.  We have to acknowledge that as the industry increases, we need to ensure that the legal elements survive and that we drive the illegal operations away so that these neighbors do not have these concerns that we heard tonight.  Commissioner Wagner would like to recommend to the BCC that one complaint be enough to drive action on marijuana cases.

    The next Planning Commission meeting will be on February 27th.

    There being no further business, the Planning Commission adjourned at 9:17 p.m.

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