HomeMy WebLinkAboutCAP081315Central Point
City Hall
541-664-3321
City Council
Mayor
Hank Williams
Ward I
Bruce Dingler
Ward II
Michael Quilty
Ward III
Brandon Thueson
Ward IV
Allen Broderick
At Large
Rick Samuelson
Taneea Browning
Administration
Chris Clayton, City
Manager
Deanna Casey, City
Recorder
Community
Development
Tom Humphrey,
Director
Finance
Bev Adams, Director
Human Resources
Barb Robson, Director
Parks and Public
Works
Matt Samitore,
Director
Jennifer Boardman,
Manager
Police
Kri s Allison Chief
CITY OF CENTRAL POINT
City Council Meeting Agenda
August 13, 2015
Next Res. 1431
Next Ord. 2014
I. REGULAR MEETING CALLED TO ORDER -7:00 P.M.
III. ROLL CALL
IV. PUBLIC APPEARANCES—Comments will be limited to 3 minutes per
individual ors minutes if representing a group or organization.
V. SPECIAL PRESENTATION — Fire District No. 3
IrlI 41010M10IreZvl70117-11
Page 2 - 9 A. Approval of July 16, 2015 Council Minutes
10 B. Meeting Cancellation for Sept., Nov. and Dec.
VII. ITEMS REMOVED FROM CONSENT AGENDA
VIII. PUBLIC HEARING, ORDINANCES, AND RESOLUTIONS
12-43 A. Resolution No. A Resolution Approving a
Franchise Agreement Between the City of Central Point
and Rogue Valley Sewer Services (Clayton)
45-48 B. Resolution No. A Resolution Declaring the
City Council's Intent to Initiate an Amendment to the
Central Point Urban Growth Boundary (UGB), and the
Comprehensive Plan (Map) to Add Land from the City's
Urban Reserve Area (URA) CP -3 for Job Creation and
Open Space Preservation in the City of Central Point
(Humphrey)
50-76 C. First Reading — An Ordinance Amending Central Point
Municipal Code Chapter 17 Zoning Sections to Correct
Errors and Inconsistencies (Humphrey)
W. BUSINESS
78-83 A. Discussion Regarding Beekeeping in the City Limits (Humphrey)
85 B. Approval of 2015 Street Inlay/Street Preservation Project Bids (Samitore)
87-88 C. Battle of the Bones Financial Report (Samitore)
90-141 D. Discussion of the Impacts of HB3400 on City's Current Ordinances and
Marijuana Tax (Clayton)
X. MAYOR'S REPORT
XI. CITY MANAGER'S REPORT
XII. COUNCIL REPORTS
17111lIl979e1.lid OFA 170Yi9g3U8itl
XIV. EXECUTIVE SESSION
The City Council may adjourn to executive session under the provisions of ORS 192.660.
Under the provisions of the Oregon Public Meetings Law, the proceedings of an
executive session are not for publication or broadcast.
FtT9 ,1931911]901OFA 170Yi
Consent Agenda
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CITY OF CENTRAL POINT
City Council Meeting Minutes
July 16, 2015
REGULAR MEETING CALLED TO ORDER
Council President Bruce Dingler called the meeting to order at 7:00 p.m.
II. PLEDGE OF ALLEGIANCE
III. ROLL CALL: Mayor: Hank Williams, excused
Council Members: Bruce Dingler, Brandon Thueson, Taneea
Browning, Rick Samuelson, and Mike Quilty were present. Allen
Broderick, excused.
City Manager Chris Clayton; City Attorney Sydnee Dreyer; Police
Chief Kris Allison; Community Development Director Tom
Humphrey; Parks and Public Works Director Matt Samitore; and
City Recorder Deanna Casey were also present.
IV. PUBLIC APPEARANCES
Doreen Lewis, Manzanita Street Resident
Mrs. Lewis is concerned about the trash issues in the neighborhood and around
town. She cited several alleys that are being used as a dumping location for
mattresses and other household items. They have talked with the Community
Service Officer but does not feel that he has the tools to take care of this issue.
She also expressed concerns about the dog waste at Pfaff Park.
City Manager Chris Clayton stated that he will work with the CSO and Rogue
Disposal to see if there is a solution for this area. Police Chief Kris Allison stated
that they are planning to have a community meeting for this neighborhood. She is
confident they will be able to solve some of the issues this area is currently
facing.
Brett Morgan, Manzanita Street Resident
Mr. Morgan stated that it would be nice if Rogue Disposal does bring an extra bin
for that area it should be locked for the residents in the apartments. He is
concerned others will fill up the bin if it is not locked.
V. SPECIAL PRESENATION
Mr. Clayton introduced Tammy Westergard the new Jackson County Library
Manager. Ms. Westergard stated that the library is managed by a private
company. She is excited to be working in the area and can see lots of potential
for our library district. They are officially independent of Jackson County at this
point and they will be working on a Strategic Plan. She also presented the book
"Farm City" to the Council.
VI. CONSENT AGENDA
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A. Approval of June 25, 2015 City Council Minutes
Mike Quilty moved to approve the Consent Agenda as presented. Taneea
Browning seconded. Roll call: Bruce Dingler, yes; Taneea Browning, yes;
Brandon Thueson, yes; Rick Samuelson, yes; and Mike Quilty, yes. Motion
approved.
VII. ITEMS REMOVED FROM CONSENT AGENDA - None
VIII. PUBLIC HEARINGS, ORDINANCES AND RESOLUTIONS
A. Resolution No. 1428, A Resolution of the City of Central Point
Allowing the City Manager or his Designee to Execute the Revised
Local Agency Agreement with ODOT forthe Twin Creeks Crossing
Parks and Public Works Director Matt Samitore explained this is the one more
step towards completion of the rail crossing into Twin Creeks. The developer,
Twin Creeks Development LLC, has completed several physical improvements
that were associated with the grant project. Those commitments have been
subtracted from the agreement. The revised grant match is $787,515.
Previously, the City reached an agreement with Twin Creeks Development, LLC
for $500,000 cash for its share of the crossing. With both of these agreements in
place the City's contribution will be a maximum of $287,515, but could be
substantially less depending on how much value is associated with the work that
is currently underway and how much contingency is used in the project
construction.
There may be an issue regarding connecting sidewalks across the creek to the
high school. We may be obligated to build a pedestrian bridge over the creek
which would increase the cost to the City.
Mr. Clayton added that Mr. Samitore
agreement with the developer and
comfortable with the projected cost
estimated on the cost of the project.
has done a great job working on this
making all the arrangements. He is
D the city. He feels that ODOT over
There was discussion regarding the requirement of rail replacement between
Pine Street and Scenic. That is a subject that is still being worked on with the
Rail Company. The reasoning behind the rail replacement would be for noise
reduction and safety reasons. New tracks would allow them to coordinate the
signals between the three crossings. We may be able to use Urban Renewal
money for this requirement.
Mike Quilty moved to approve Resolution No. 1428, A Resolution of the City
of Central Point Allowing the City Manager or his Designee to Execute the
Revised Local Agency Agreement with ODOT for the Twin Creeks
Crossing. Brandon Thueson seconded. Roll call: Bruce Dingler, yes; Taneea
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Browning, yes; Brandon Thueson, yes; Rick Samuelson, yes; and Mike Quilty,
yes. Motion approved.
B. Resolution No. 1429, A Resolution Authorizing the City Manager to
Enter into an Agreement for Purchase of Right-of-way with James
Sutton of 4511 Hamrick Road in Lieu of Condemnation Proceedings
Mr. Samitore provided a brief background regarding the need to improve the
Beebe and Hamrick intersection. He has been negotiating with Mr. Sutton for well
over a year regarding the need purchase 259 sq. ft of his property for a new right
hand turn lane and future signal.
The final offer to Mr. Sutton includes $8,000 for the purchase of the property, free
water for 6 years and the city will not force annex the property for a specific
amount of years. In addition a new sound wall will be constructed parallel to
Beebe and Hamrick associated with the actual construction.
Upon completion of the agreement the city will have the necessary area needed
for a designated right turn lane. This will help immediately with the issues
associated with church related functions at the Catholic Church. Additionally,
there will be enough land for a future signal. This agreement will avoid
condemnation proceedings. If all goes as planned we could begin construction
on the turn lane and sound wall in August.
Brandon Thueson moved to approve Resolution No. 1429, A Resolution
Authorizing the City Manager to Enter into an Agreement for Purchase of
Right-of-way with James Sutton of 4511 Hamrick Road in Lieu of
Condemnation Proceedings. Rick Samuelson seconded. Roll call: Bruce
Dingler, yes; Taneea Browning, yes; Brandon Thueson, yes; Rick Samuelson,
yes; and Mike Quilty, yes. Motion approved.
C. Resolution No. 1430, A Resolution Directing the City Manager or His
Designee to Enter into a Second Amendment to a Road Easement
Agreement Between Central Oregon & Pacific Railroad, Inc., and the
City of Central Point.
Community Development Director Tom Humphrey explained the city entered into
two previous agreements with the railroad beginning in June 2008. The Railroad
Easement grants the right to construct, reconstruct, maintain and use a street or
highway upon and across its right-of-way. Both parties expected to be under
construction by the time the first 3 -year agreement concluded. Unfortunately, the
recession and revisions to the traffic signal layout at the crossing lead to an
amendment of the agreement and year to year payments to the railroad. The
proposed resolution includes the second and final amendment to the original
agreement.
Both parties have mutually agreed to the recitals and substance of the
agreement. Approval of the resolution directs staff to enact the agreement and to
make one final payment to the railroad relative to a road easement for the Twin
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Creeks Crossing. The payment will be made after the railroad signs and returns
the amendment. The agreement and final payment will secure the city's right to
the crossing location until such time as construction begins and a new crossing is
completed.
Taneea Browning moved to approve Resolution No. 1430, A Resolution
Directing the City Manager or His Designee to Enter into a Second
Amendment to a Road Easement Agreement Between Central Oregon &
Pacific Railroad, Inc., and the City of Central Point. Mike Quilty seconded.
Roll call: Bruce Dingler, yes; Taneea Browning, yes; Brandon Thueson, yes; Rick
Samuelson, yes; and Mike Quilty, yes. Motion approved.
IX. BUSINESS
A. Consideration of a Letter from the City Manager Endorsing the
Vietnam Veteran's Memorial Wall
Mr. Humphrey explained that the City has been approached by the Southern
Oregon Veterans Benefit (SOVB) organization about bringing an 80% replica of
the Vietnam Veterans Memorial Wall to Central Point. Members of the group
made a presentation to the Council earlier this year and a land use pre -
application has been submitted to the Community Development Department.
They have asked the city to write a letter of endorsement for the project and its
tentative location in Don Jones Memorial Park.
If the Council approves the letter of endorsement it will aid the organization with
fund raising. The organization knows that they have to receive land use approval
from the City for a Conditional Use Permit and they have started this process.
The Council is very concerned with the limited amount of parking for Don Jones
Park. There is not enough parking with the amenities that are in the park now.
Mike Quilty moved to approve a Letter from the City Manager Endorsing the
Vietnam Veteran's Memorial Wall. Brandon Thueson seconded. Roll call:
Bruce Dingler, yes; Taneea Browning, yes; Brandon Thueson, yes; Rick
Samuelson, yes; and Mike Quilty, yes. Motion approved.
B. Planning Commission Report
Community Development Director Tom Humphrey presented the Planning
Commission Report for July 7, 2015:
Unanimously recommended Option C to the City Council as the preferred
route for Gabbard Road. There was considerable discussion regarding
options for Gabbard Road to connect with East Pine Street. They
reviewed the study and conducted a public hearing with affected parties
and local residents.
Continued a public hearing to consider a Transit Oriented Development
(TOD) preliminary master plan on 18.91 acres in the Eastside TOD
District. The project site is located east of Gabbard Road and North of
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Beebe Road. The project site is within the LMR -Low Mix Residential and
MMR -Medium Mix zoning districts.
Continued the consideration of a Tentative Partition Plan to create three
parcels in the LMR -Low Mix Residential and MMR -Medium Mix
Residential zoning districts within the Eastside TOD District. The
Commission conducted a public hearing and took testimony from the
proponent and various property owners in the vicinity. This application
was associated with and dependent upon the Master Plan approval.
The Commission unanimously recommended forwarding various
amendments to the Municipal Zoning Code. The amendments to the
zoning code are for on-going maintenance to ensure clear standards and
efficient development. There are eleven minor amendments which are
administrative in nature and necessary for clear, concise and consistent
use of the Zoning Code. The recommended changes will be reviewed by
the City Attorney prior to bringing them forward to the City Council in
August.
The Commission was updated on the Interchange Area Management
Plan (IAMP) for 1-5 Exit 33 and a proposed schedule for IAMP 33
adoption and corresponding Transportation System Plan (TSP)
Amendment. They expect to consider this at their August meeting.
C. Discussion of Agreement with Jackson County Justice Court
Building to Include a Central Point Police Department Substation
Mr. Clayton stated that the City was notified by Jackson County in early July that
bids for the proposed Jackson County Justice Court at 4173 Hamrick Road had
been received. The bids exceeded preliminary cost estimates. Although
estimates generated during the design process suggested a total project cost of
$1.5 million, the lowest bid received was 2.5 million.
With the northeastern portion of the city being targeted for future commercial and
residential growth, an established police substation facility in this portion of the
community is strategically desirable when anticipating future public safety needs.
The city and county have agreed that a police substation located within the new
county court facility would be mutually advantageous. However, with the
significantly increased building costs, the county has proposed an increase in the
lease cost for the city. The original amount of the annual lease payment would
have been $7,000 for a 10 year lease. The new proposal would be an annual
payment of $9,734 for 15 years. Staff is looking for direction from the Council if
they would like to continue with this project.
There was discussion regarding the advantage of having a substation in different
areas of town. When officers are patrolling the east side of town they would be
closer to the assigned area when doing their work. There would be faster
response times if they are called out and had been in the substation rather than
City Hall. Council was concerned that the lease does not have a clause stating
that they cannot raise the annual cost for the substation. The east side of Central
Point is growing very fast and having this community service available on the
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east side would be nice but it is not imperative. It is a good opportunity, but we
can also broach other development as it comes available.
Council was in favor of the substation idea, but would like to see a better lease
option closer to the original amount. The City Manager is authorized to sign an
agreement without bringing it back to Council.
X. MAYOR'S REPORT — No Report
XI. CITY MANAGER'S REPORT
City Manager Chris Clayton reported that:
• He has been working on the rate proposal for the Medford Water
Commission. They will be submitting questions for the public hearings
regarding the Water Rate Study. They have found some inconstancies in the
study that is being done.
• Mr. Samitore has done a great job working with Mr. Sutton who has been
hauling water for his residence because of the water issue when work was
done on Beebe Road several years ago. The MWC is considering limiting
who will be able to haul water, they are thinking of only allowing Medford
residents access. He is glad to see that the City will be able to provide Mr.
Sutton water.
• The collection of the Excise Tax for the School District came in higher than
projected this quarter.
• The Supreme Court Ruling for Rogue River Sewer Services came in today.
The Courts ruled in favor of the City of Phoenix. The City of Central Point is
now able to proceed with the Franchise Agreement with RVSS.
• The storm that came through last week knocked down several trees in City
Parks. We are working with the residents to repair damaged fences.
• The Central Point Cemetery has a change in ownership. We are not sure if
this will be a good change yet. There is an RV trailer parked on the cemetery
property but we have been assured they are not living on the property. We
have been trying to meet with the new owners.
XII. COUNCIL REPORTS
Council Member Mike Quilty reported that:
• He attended an RVACT meeting on Tuesday. There is a push from OTC to
include tribes that have interest in the various ACTS. They may need to
include tribes when discussing transportation in proposed areas.
• OREGO is a new way to charge for gas tax. There are currently several
problems with the new program that have not been worked out yet. They are
still looking for volunteers to try the program.
• Washington DC House of Representative is passing bills but have not put
anything in place for funding the programs.
Council Member Brandon Thueson reported that he attended the School Board
meeting. He updated the Council on their meals program for breakfast and lunch
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for students. There is a big push to provide locally grown vegetables. They are
providing free lunches in several of our parks.
Council Member Rick Samuelson reported that he attended the 4" of July Parade
and Fun Run and a boxing event at the Expo. He was notified that someone from
the State is going to all the businesses regarding any improvements to Pine
Street downtown. This person is stating that any changes could take up to six
years to get approved through the State. Mr. Clayton explained that there are a
few sections of Pine Street that belong to the State and County, but the
improvements that we have discussed in the past are not part of their jurisdiction.
Council Member Bruce Dingler reported that he attended the Jackson County
Task Force for the Homeless. They are trying to get things set up for a homeless
camp along the greenway. There is a lot of research that will need to be done
before anything can go forward.
Council Member Taneea Browning reported that:
• She attended the Quarter Hour Association presentation of the sponsor
check. It was great to see what they bring to the city when they are at the
Expo. She was impressed with the amount of work they put in to bring that
event to our area.
• She attended the Battle of the Bones, it was a great hit with her family and
thanked Sarah Wright for the last minute move to include the water slide.
• She attended a Medford Water Commission meeting.
• The Chamber of Commerce and their team did a fantastic job on the parade
and the festival in the parks for the 4" of July. She also thanked the Public
Works and Parks Department for all their hard work during the event. She
enjoyed riding with the Mayor in the parade.
• She attended the ribbon cutting event for the Twin Creeks cottages.
• She attended a Fire District No. 3 Board meeting where they touched on their
mid -year performance report. The District will be working with Central Point
nonprofits to bring a little water fun for everyone along with public education
on fire risk, reduction, prevention and some new ideas on landscape.
XIII. DEPARTMENT REPORTS
Parks and Public Works Director Matt Samitore reported that:
• As expected attendance was down for Battle of the Bones this year because
of the extreme heat. He thanked everyone that helped with the event. He has
not heard of any negative comments for the event this year.
• Citizens should start seeing work on Freeman Road in the next week. The
work on the water line is almost complete and they will be able to begin
constructing the new road.
• They will be receiving a $300,000 grant to start construction for the
Skyermann Arboretum Park. There are some amazing trees on that property.
Police Chief Kris Allison reported that:
• The D.A.R.E. Show and Shinewill be August 1", 2015.
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• They are preparing for the Annual Police Department Open House to be on
September 12`", 2015.
• She has been doing Open House type events throughout the City. They are
willing to speak to different organizations if asked.
Community Development Director Tom Humphrey reported that:
• Community Development has been busy over the last few weeks. They have
received several building permits and applications.
• He is waking on the Boot Camp events that continue for our local
businesses.
Council Member Mike Quilty stated that the legislators are passing $4.5 Million
worth of grants for our region that are earmarked for non -road improvements.
These funds may work for the rail improvements that are required for Twin
Creeks Crossing.
City Attorney Sydnee Dryer reported that she will not be at either of the August
meetings. She will be waking on an Ordinance revision because of House Bill
3400. We may need to repeal our Marijuana Tax that was put in place last year.
It is still unclear if the implemented tax would be grandfathered in to the state
rules. We may be required to take it to a vote of the people.
XIV. EXECUTIVE SESSION - None
XV. ADJOURNMENT
Brandon Thueson moved to adjourn, Mike Quilty seconded, all said "aye" and
the Council Meeting was adjourned at 8:40 p.m.
The foregoing minutes of the July 16, 2015, Council meeting were approved by the City
Council at its meeting of August 13, 2015.
Dated:
Mayor Hank Williams
ATTEST:
City Recorder
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Return to A enda
Staff Report
05; -
CENTRAL
POINT
TO:
Honorable Mayor and City Council
FROM:
Deanna Casey, City Recorder
SUBJECT:
Cancellation of Council Meetings
DATE:
August 13, 2015
Administration Department
Chris Clayton, City Manager
Deanna Casey, City Recorder
September 24, 2015 Meeting Cancellation
Council Members and staff members would like to attend the League of Oregon Cities
Conference September 23- 26, 2015.
Staff is recommending and prepared to cancel the September 24, 2015 City Council
meeting.
November 26, 2015 Meeting Cancellation
The second meeting in November falls on Thanksgiving day. Staff recommends
cancelling this meeting.
December 24, 2015 Meeting Cancellation
The second meeting in December falls on Christmas Eve. Staff recommends cancelling
this meeting.
RECOMMENDED MOTION:
Approve the Consent agenda as presented.
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Resolution
RVSS Franchise
Agreement
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A
CENTRAL
POINT
ADMINISTRATION DEPARTMENT
140 South 3rtl Street Central Point, OR 97502 (S41) 664-7602 www.rentra l pointoregon.gov
STAFF REPORT
August 13", 2015
AGENDA ITEM: Adoption of the draft franchise agreement between the City of Central
Point and Rogue Valley Sewer Services.
STAFF SOURCE:
Chris Clayton, City Manager
BACKGROUND/SYNOPSIS:
The City of Central Point currently maintains franchise agreements with the following franchisees:
Pacific Power & Light (Pacific Corp.); Avista Utilities; Charter Communications; Hunter
Communications (Core Digital); L.S. Networks; Qwest Communications; Rogue Disposal and
Recycling and the City of Central Point (5% franchise on the City's water system). Each of these
franchised utilities currently pays a franchise fee for use of the City of Central Point's public right-
of-way. Current franchise rates vary from 5%-6% of gross revenues (within Central Point
boundaries), largely due to length of existing agreements. Recently expired agreements have been
renegotiated at 6%, while agreements with future expirations have remained at their previously
negotiated rate of 5%.
In 2012, the City of Phoenix became the first city to pass a franchise ordinance which places
operating requirements, and a franchise fee, on Rogue Valley Sewer Services (RVSS). RVSS has
opposed the implementation of such a franchise fee and, ultimately, challenged the City of
Phoenix's authority in court. The adjudication of this issue has resulted in both the Circuit Court
and Oregon Court of Appeals reaffirming the City of Phoenix's `home -rule' authority to impose a
franchise fee on RVSS, even though they are designated a special sewer district under Oregon
Revised Statute Chapter 450. This issue received final consideration from the Oregon Supreme
Court in July of 2015, with the Oregon Supreme Court affirming the decision of the lower courts.
Prior to the Oregon Supreme Court's ruling on this matter, the City of Central Point passed a
general utility license fee ordinance which allowed for alternate right-of-way use compensation
should the court rule in favor of Rogue Valley Sewer Services. A negotiated franchise agreement
remains an option under the general utility license fee ordinance, and this has been the preferred
alternative of Rogue Valley Sewer Services.
The attached franchise agrzeement represents a final document which has been subjected to multiple
reviews by both the City of Central Point and Rogue Valley Sewer Services. Both agencies had
agreed to wait for the Oregon Supreme Court's decision prior to implementing the new franchise
agreement.
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ATTACHMENTS:
I. Franchise Agreement between the City of Central Point and Rogue Valley Sewer Services.
2. Resolution adopting the Franchise Agreement between the City of Central Point and Rogue
Valley Sewer Services
3. Oregon Supreme Court's July 2015 decision (Rogue Valley Sewer Services v. City of
Phoenix).
RECOMMENDATION:
I. Approval of the resolution adopting a franchise agreement between the City of Central Point
and Rogue Valley Sewer Services.
PUBLIC HEARING REQUIRED:
No a public hearing is not required.
SUGGESTED MOTION:
Move to approve resolution adopting franchise agreement between the City of Central Point and
Rogue Valley Sewer Services.
Return to Agenda
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Sewer District Franchise Agreement
Between the City of Central Point and RVSS
This Utility Franchise Agreement (the "Franchise" or "Agreement") is entered into between the
City of Central Point (the "City`) and Rogue Valley Sewer Services (RVSS)
SECTION 1. Grant of Non-exclusive Franchise and General Utility Easement. The City hereby
grants a non-exclusive franchise to, and gives consent and privilege to, RVSS to lay sewers and
drains and related facilities in, on or under any public street, highway or road in the City, and
for this purpose enter upon it and make all necessary and proper excavations, restoring it to its
proper condition, including the right to maintain, operate, construct, upgrade and relocate such
sewer lines and drains and related facilities (collectively "Sewer Facilities') for the purpose of
supplying sewer service to the inhabitants of the City and persons and corporations beyond the
limits thereof.
SECTION 2. Term. The term of this Franchise and General Utility Easement shall begin August
151h, 2015 This Franchise and General Utility Easement shall expire on June 30, 2020.
SECTION 3. Non-exclusive Franchise. The city reserves the right to use the Public Ways for
itself or any other entity that provides services to City residences or businesses; and to grant
other or further franchises in, along, over, through, under, below or across any of its public
rights-of-way. This franchise shall in no way prevent or prohibit the City from using any of its
public rights-of-way or other public properties or affect its jurisdiction over them or any part of
them, and the City shall retain power to make all necessary changes, relocations, repairs,
maintenance, establishment, improvement and dedication of same, including the dedication,
establishment, maintenance and improvement of all new rights-of-way, thoroughfares, and
other public properties of every type and description, provided, however, that such use shall
not unreasonably interfere with RVSS's Sewer Facilities or RVSS's rights granted herein.
SECTION 4. City Regulatory Authority. In addition to the provisions herein contained, the City
reserves the right to adopt such additional ordinances and regulations as may be deemed
necessary in the exercise of its police power for the protection of the health, safety and welfare
of its citizens and their properties or the exercise any other rights, power, or duties required or
authorized, under the Constitution of the State of Oregon, the laws of Oregon or City
Ordinances.
SECTION 5. Indemnification. The City shall in no way be liable or responsible for any loss or
damage to property or any injury to, or death, of any person that may occur in the
construction, operation or maintenance by RVSS of its Sewer Facilities. RVSS shall indemnify,
defend and hold the City harmless from and against claims, demands, liens and all liability or
damage of whatsoever kind on account of RVSS's use of the Public Ways within the City, and
shall pay the costs of defense plus reasonable attorney's fees for any claim, demand or lien
brought hereunder. The City shall: (a) give prompt written notice to RVSS of any claim, demand
or lien with respect to which the City seeks indemnification hereunder; and (b) unless in the
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City's judgment a conflict of interest exists between the City and RVSS with respect to such
claim, demand or lien, permit RVSS to assume the defense of such claim, demand, or lien with
counsel satisfactory to City. If such defense is not assumed by RVSS, RVSS shall not be subject
to liability for any settlement made without its consent. Notwithstanding any provision hereof
to the contrary, RVSS shall not be obligated to indemnify, defend or hold the City harmless to
the extent any claim, demand or lien arises out of or in connection with any negligent or willful
act or failure to act of the City or any of its officers or employees.
6.1 Extension of City Limits. Upon the annexation of any territory to the City, the rights
granted herein shall extend to the annexed territory to the extent that City has such authority.
All Sewer Facilities owned, maintained, or operated by RVSS located within any public ways of
the annexed territory shall thereafter be subject to all of the terms hereof.
6.2 Annexation. When any territory is approved for annexation to the City, the City shall,
not later than ten (10) working days after passage of an ordinance approving the proposed
annexation, provide by certified mail to RVSS: (a) each site address to be annexed as recorded
on county assessment and tax rolls; (b) a legal description of the proposed boundary change;
and (c) a copy of the City's ordinance approving the proposed annexation. The notice shall be
mailed to:
Rogue Valley Sewer Services
PO Box 3130
Central Point, OR 97502
Additional or increased fees ortaxes, otherthan ad valorem taxes, imposed on RVSS as
a result of an annexation of territoryto the City shall become effective 30 days afterthe
effective date of the annexation provided notice is given to RVSS in accordance with within 10 -
days of the date the resolution was adopted.
SECTION 7. Planning, Design, Construction and Installation and Maintenance of Sewer
Facilities.
7.1 All Sewer Facilities installed or used under authority of this Franchise shall be used,
constructed and maintained in accordance with applicable federal, state and city laws, codes
and regulations, subject to preexisting nonconformities.
7.2 Except in the case of an emergency, RVSS shall, priorto commencing new construction
or major reconstruction work in the public way or street or other public places, apply for a
permit from the City, which permit shall not be unreasonably withheld, conditioned, or
delayed. The City shall not assess any fees related to the issuance of the permit. RVSS will
abide by all applicable ordinances and all reasonable rules, regulations and requirements of the
City, and the City may inspect the manner of such work and require remedies as may be
necessary to assure compliance. Notwithstanding the foregoing, RVSS shall not be obligated to
CAP081315 Page 15
obtain a permit prior to performing emergency repairs. In the event of an emergency, RVSS
shall obtain a permit as soon as practical after the start of the work.
7.3 To the extent practicable, all Sewer Facilities shall be located so as to cause minimum
interference with the Public Ways of the City. All Sewer Facilities shall be constructed, installed,
maintained, renovated or replaced in accordance with applicable rules, ordinances and
regulations of the City.
7.4 If, during the course of work on its Sewer Facilities, RVSS causes damage to or alters the
Public Way or public property, RVSS shall (at its own cost and expense and in a manner
approved by the City) replace and restore it to a condition comparable to that which existed
before work commenced.
7.5 Before commencing anystreet improvements or otherwork within a Public Waythat
may affect RVSS's Sewer Facilities, the City shall give written notice to RVSS.
7.6 No structures, buildings or signs shall be erected over RVSS's facilities or in a location
that inhibits reasonable access to its facilities.
7.7 RVSS shall provide as -built and electronic maps of newly installed or recently upgraded
facilities. As -built information shall be submitted in a format acceptable to the City.
SECTION 8. Relocation of Sewer Facilities.
8.1 The City reserves the rightto require RVSSto relocate Sewer Facilities within the Public
Ways in the interest of public convenience, necessity, health, safety or welfare
8.2 As the construction and reconstruction of public sewers is of primary interestto the
health, safety, and welfare of the public, the City, to the extent that it has the authority, will
request public utilities defined under ORS XXXX to relocate their facilities to accommodate
public sewer construction and reconstruction.
8.3 RVSS shall not be obligated to pay the cost of any relocation that is required or made a
condition of a private development.
SECTION 9. Subdivision Plat Notification. The City shall require that subdivision plats include
an approval line for RVSS. Before the City approves any new subdivision and before
recordation of the plat, the City shall mail notification of such approval and a copy of the plat to
RVSS:
Rogue Valley Sewer Services
PO Box 3130
Central Point, OR 97502
CAP081315 Page 16
SECTION 10. Vegetation Management. RVSS or its contractor may prune all trees and
vegetation which overhang the Public Ways, whether such trees or vegetation originate within
or outside the Public Ways, to prevent the branches or limbs or other part of such trees or
vegetation from interfering with RVSS's Sewer Facilities. Such pruning shall comply with the
American National Standard for Tree Care Operation (ANSIA300 and the City of Central Point
Tree Pion) and be conducted under the direction of an arborist certified with the International
Society of Arboriculture. A growth inhibitor treatment may be used for trees and vegetation
species that are fast-growing and problematic. Nothing contained in this Section shall prevent
RVSS, when necessary and with the approval of the owner of the property on which they may
be located, from cutting down and removing any trees which overhang streets.
SECTION 11. Compensation.
11.1 In consideration of the rights, privileges, and franchise hereby granted, RVSS shall pay to
the City from and after the effective date of the acceptance of this franchise, five percent (5%)
of its gross revenues derived from within the corporate limits of City. The term "gross revenue"
as used herein shall be construed to mean any revenue of RVSS derived from the retail sale and
use of sewer service within the municipal boundaries of the City after adjustment for the net
write-off of uncollectible accounts and corrections of bills theretofore rendered. All amounts
paid under this Section 11 shall be subject to review by the City; provided that only payments
which occurred during a period of thirty-six (36) months prior to the date the City notifies RVSS
of its intent to conduct a review shall be subject to such review. Notwithstanding any provision
to the contrary, at any time during the term of this Franchise, the City may elect to increase the
franchise fee amount as may then be allowed by adoption of the change in percentage by the
City. The increase shall be effective sixty (60) days after City has provided such written notice
to RVSS.
11.2 The franchise fee shall not be in addition to any other license, occupation, franchise or
excise taxes or charges which might otherwise be levied or collected by the City from RVSS with
respect to RVSS's sewer business or the exercise of this franchise within the corporate limits of
the City and the amount due to the City under any such other license, occupation, franchise or
excise taxes or other charges for corresponding periods shall be reduced by deducting those
charges from the amount of said franchise fee paid hereunder.
SECTION 12. Renewal. At least 120 days prior to the expiration of this Franchise, RVSS and the
City shall agree to either extend the term of this Franchise for a mutually acceptable period of
time or the parties shall use best faith efforts to renegotiate a replacement Franchise. RVSS
shall have the continued right to use the Public Way of the City as set forth in the City's Utility
License Fee Ordinance in the event an extension or replacement Franchise is not entered into
upon expiration of this Franchise.
SECTION 13. No Waiver. Neither the City nor RVSS shall be excused from complying with any
of the terms and conditions of this Franchise by any failure of the other, or any of its officers,
CAP081315 Page 17
employees, or agents, upon anyone or more occasions to insist upon or to seek compliance
with any such terms and conditions.
SECTION 14. Transfer of Franchise. RVSS shall not transfer or assign any rights under this
Franchise to anotherentity, except transfers and assignments byoperation of law, unless the
City shall first give its approval in writing, which approval shall not be unreasonably withheld;
provided, however, inclusion of this Franchise as property subject to the lien of RVSS's
mortgage(s) shall not constitute a transfer or assignment.
SECTION 15. Amendment. At any time during the term of this Franchise, the City, through its
City Council, or RVSS may propose amendments to this Franchise by giving thirty (30) days
written notice to the other of the proposed amendment(s) desired, and both parties,
thereafter, through their designated representatives, will, within a reasonable time, negotiate
in good faith in an effort to agree upon mutually satisfactory amendments(s). No amendment
or amendments to this Franchise shall be effective until mutually agreed upon by the City and
RVSS and formally adopted as an ordinance amendment.
SECTION 16. Non-Contestability—Breach of Contract.
16.1 Neither the City nor RVSS will take any action for the purpose of securing modification
of this Franchise in any Court of competent jurisdiction; provided, however, that neithershall
be precluded from taking any action it deems necessary to resolve difference in interpretation
of the Franchise nor shall RVSS be precluded from seeking relief from the Courts in the event
the legislature makes performance underthe Franchise illegal.
16.2 In the event RVSS or the City fai Is to fulfill any of their respective obligations under this
Franchise, the City, or RVSS, whichever the case may be, will have a breach of contract claim
and remedy against the other in addition to any other remedy provided by law, provided that
no remedy which would have the effect of amending the specific provisions of this Franchise
shall become effective without such action which would be necessary to formally amend the
Franchise.
SECTION 17. Notices. Unless otherwise specified herein, all notices from RVSS to the City
pursuant to or concerning this Franchise shall be delivered to the City Recorder's Office. Unless
otherwise specified herein, all notices from the City to RVSS pursuant to or concerning this
Franchise shall be delivered to the _General Manager, and such other office as RVSS may advise
the City of by written notice.
SECTION 18. Severability. If any section, sentence, paragraph, term or provision hereof is for
any reason determined to be illegal, invalid, or superseded by other lawful authority including
any state or federal regulatory authority having jurisdiction thereof or unconstitutional, illegal
or invalid by any court of common jurisdiction, such portion shall be deemed a separate,
distinct, and independent provision and such determination shall have no effect on the validity
CAP081315 Page 18
of any other section, sentence, paragraph, term or provision hereof, all of which will remain in
full force and effect for the term of the Franchise or any renewal or renewals thereof.
SECTION 19. Invoices. RVSS shall be entitled to include aline item on all customer invoices
showing the amount of franchise fee imposed.
CAP081315 Page 19
RESOLUTION NO.
A RESOLUTION APPROVING A FRANCHISE AGREEMENT BETWEEN THE
CITY OF CENTRAL POINT AND ROGUE VALLEY SEWER SERVICES.
RECITALS:
1. The City of Central Point holds rights-of-way in trust for the public and has the
responsibility and home -rule authority to manage and conserve the capacity of
such rights -of -ways.
2. The City of Central Point is authorized by Chapter 221 of the Oregon Revised
Statutes, the City of Central Point Charter and the Central Point Municipal Code
to regulate, and receive compensation from, utilities occupying right-of-way within
the City.
3. In Rogue Valley Sewer Services v. City of Phoenix, (SC -S062277: July 16,
2015), the Oregon Supreme Court upheld the authority of home -rule
municipalities to impose a franchise fee or privilege tax on special districts
defined by Oregon Revised Statue Chapter 450 (Sanitary Districts and
Authorities; Water Authorities).
Section 1. Franchise Agreement Adopted by City Council: The Franchise
Agreement between the City of Central Point and Rogue Valley Sewer Services is
hereby adopted by the City Council and approved for signature by the City Manager.
Passed by the Council and signed by me in authentication of its passage this
day of 20_
Mayor Hank Williams
ATTEST:
City Recorder
CAP081315 Page 20
No. 25 July 16, 2015 437
IN THE SUPREME COURT OF THE
STATE OF OREGON
ROGUE VALLEY SEWER SERVICES,
an Oregon municipality,
Petitioner on Reuiew,
CITY OF PHOENIX,
an Oregon municipality,
Respondent on Reuiew.
(CC 103450E2; CA A148968; SC 5062277)
On review from the Court of Appeals.`
Argued and submitted February 15, 2015.
Tommy A. Brooks, Cable Huston, LLP, Portland, argued
the cause and filed the briefs for petitioner on review. With
him on the brief were Casey M. Nokes and Clark I. Balfour.
J. Ryan Kirchoff, James Holmbeck Kirchoff, LLC, Grants
Pass, argued the cause and filed the brief for respondent
on review. With him on the brief was Kurt H. Knudsen,
Jacksonville.
C. Robert Steringer, Harrang Long Gary Rudnick P.C.,
Portland, filed the brief for amtet curiae Clackamas River
Water and Special Districts Association of Oregon.
Harry Auerbach, Chief Deputy City Attorney, Portland,
argued the cause for amicus curiae League of Oregon Cities.
Chad A. Jacobs, Beery, Elsner & Hammond, LLP, Portland,
filed the brief for amicus curiae League of Oregon Cities.
With him on the brief were Harry Auerbach, Portland, and
Sean E. O'Day, Salem.
H. M. Zamudio, Huycke O'Connor Jarvis, LLP., Medford,
filed the brief for amicus curiae City of Central Point.
° Appeal from Jackson County Circuit Court, C. Philip Arnold, Judge. 262
Or App 183, 329 Pad 1 (2914).
CAP081315 Page 21
438 Rogue Valley Sewer Services v. City of Phoenix
Before Balmer, Chief Justice, and Kistler, Walters,
Linder, Landau, and Baldwin, Justices,"
BALMER, C. J.
The decision of the Court of Appeals and thejudgment of
the circuit court are affirmed.
— Brewer, J., did out participate in the consideration or decision at this case.
CAP081315 Page 22
Cite as 357 Or 437 (2015) 439
BALMER, C. J.
In this declaratory judgment action, we consider
whether a home -rule city can impose a five percent fran-
chisefeeon a sanitary authority with overlappingjurisdic-
tion. The trial court concluded that the city had authority to
impose the fee at issue in this case, but declined to reach an
additional question whether the amount of the fee was rea-
sonable, because that issue was not presented by the plead-
ings. The Court of Appeals affirmed, concluding that the
city had authority to enact the ordinance providing for the
fee and that the sanitary authority's argument about rea-
sonableness was unpreserved. Rogue Vallev Sewer Services
U. Citv of Phoenix, 262 Or App 183, 202, 329 P3d 1 (2014).
On review, we conclude that the home -rule doctrine is the
proper framework for analyzing the fee at issue in this case
and that, under that framework, the imposition of the fee
was within the authority granted to the city by its charter
and was not preempted by state law. We also conclude that
the sanitary authority failed to raise the issue of the reason-
ableness. We therefore affirm.
I. BACKGROUND
Rogue Valley Sewer Services (RVS) owns, operates,
and manages equipment for the transmission of sewage. As
a "sanitary authority" organized under ORS chapter 450,
RVS is a type of local government entity called a local service
district. See ORS 174.116(2)(r) ("[Als used in the statutes
of this state[,l `local service district' [includes al sanitary
authority I I I organized under ORS 450.600 to 450.989.").
Local service districts are municipal corporations and local
governments. See ORS 198.605 ("Local service districts, as
defined by ORS 174.116, are municipal corporations."); ORS
174.116(1)(a) (" [Al s used in the statutes of this state[,l `local
government' means all cities, counties and local service dis-
tricts located in this state[.l").
Since 2004, RVS has provided sewer services to res-
idents of the City of Phoenix (city)—also a local government
under Oregon law, ORS 174.116(1)(a)although the rela-
tionship between RVS and the city has changed overtime. In
2004, the city and RVS entered into an intergovernmental
CAP081315 Page 23
440 Rogue Valley Sewer Services v. City of Phoenix
agreement that established the services that RVS would
provide and the rates that RVS would charge. At that time,
the city was not within the political boundaries of RVS. RVS
notes that, under that 2004 contract, it had the right—but
not the obligation—to use the city's facilities to provide
sewer services.
In 2006, a ballot measure asked voters of the city
whether the city should be annexed into the service area of
RVS. The ballot indicated to voters that the City Council
and the RVS Board of Directors had already "unanimously
adopted resolutions supporting this annexation" and that
"service rates will not be increased as a result of this annex-
ation." (Emphasis in original, underscoring omitted.) The
voters' pamphlet statements with respect to the ballot mea-
sure did not mention whether the city would or could impose
a franchise fee or tax on RVS. The residents of the city voted
to annex the city into the service area of RVS. As a result,
RVS became obligated to provide sewer services to the resi-
dents of the city because, for the purposes of sewer services,
the residents were now within RVS's ,jurisdiction.
In 2009, the city held a special election, and the
voters approved a home -rule city charter. The charter pro-
vides that the city "has all powers that the constitutions,
statutes, and common law of the United States and of this
state now or hereafter expressly or impliedly grant or allow,'
and that the charter is to "be liberally construed so the city
may exercise fully all powers possible under this charter
and under United States and Oregon law." City of Phoenix
Charter, § 4-5.
In 2010, the city passed Ordinance No. 928 (the
ordinance) imposing a "franchise fee in an amount equal to
five percent (5%) of the annual Gross Revenue of RVS I I I
in addition to taxes or fees, if any, owed to the City."' The
' Ordinance No. 928 defines 'Gross, Revenue' as 'a or, revenue, as determined
in mrdance with generally accepted accounting principles, received by RVSII
from the operation of its business,' with a few items of revenue excluded. Later,
in 2010, to "clarify an issue that has been caused in pending litigation between
ItVS[] and the City," the city modified the ordinance to clarify that the fee is
applicable solely to gross revenue received by ItVS[] from the operation of its
business within the City limits' Ordinanec No. 931, Sept 9, 2010. For clarity, we
tensile the ordinance," although both Ordinance No.928 and Ordinance No.931
are at issue in this ease.
CAP081315 Page 24
Cite as 357 Or 437 (2015) 441
ordinance directed RVS to pay the fee on a monthly basis
starting the first month after adoption of the ordinance.
The ordinance declares that the "primary purpose
of the collection of a franchise fee from RVS is to regulate
and reimburse the City for its costs associated with RVS,
and not to raise revenue." The ordinance elaborates that it
was passed for the purposes of "maintenance and operation
of the public rights of way" and "recoupment of the full costs
and full impacts associated with the use, occupation, and
other activities and effects by sanitary authorities and other
utilities on the public rights of ways." The ordinance cites
costs, including "additional oversight and associated costs
incurred from City administration, maintenance and repair
of City -owned facilities within City right-of-ways, special
services performed by the City, and office and field -related
costs." Overall, the ordinance declares that there is a "direct
relationship between the fee charged and the burden pro-
duced by the fee payer, RVS [ l."
RVS projected that the five percent franchise fee, as
assessed on the gross revenues that RVS received from res-
idents of the city, would have totaled approximately $30,741
per year. RVS calculated that, "to be fair to all other custom-
ers" living outside the city, it would have to raise its rates for
single-family residences in the city from $15.90 per month
to $16.70 per month.
RVS filed a complaint in circuit court seeking a
declaratory judgment and an injunction. Specifically, RVS
asked the court to:
"1. Declar[el whether the ordinance *"* is valid and
whether RVS is required to collect and pay over the fee
described in said ordinance.
"2. Grant an injunction prohibiting [the city] from col-
lecting the franchise fee' * *.
"3. For other such relief as the court may deem
equitable"
In the trial court, as part of cross-motions for summary
judgment discussed further below, the city reaffirmed the
CAP081315 Page 25
442 Rogue Valley Sewer Services v. City of Phoenix
factual assertions set out in the ordinance. The city claimed
that it incurs a variety of costs due to the direct impact of
RVS's operations in city streets. Although the direct costs
of the paving and construction work are borne by RVS, the
city argued that there are additional short-term and long-
term impacts that the city bears. Short-term impacts are
associated primarily with coordination and include review
of plans, inspection during construction, locating utilities,
processing encroachment permits, providing water from
city fire hydrants for flushing sewer lines, and designing
other city utility contracts to avoid RVS facilities. Long-
term impacts include costs of maintenance and repair of the
streets. Whenever a street surface is cut, a slight differential
settlement of the repaired surface is expected, and the joint
between the surfaces is more likely to be an entry point for
water. Over time, the city Public Works Department expects
to fill cracks and make minor repairs on cut streets, until it
becomes necessary to conduct a complete asphalt overlay of
the street. The city also asserted that, as a direct impact of
its relationship with RVS, it incurs general administrative
expenses, such as the costs of general administration and
oversight, budgeting, coordination of services, interactions
with the public, and other expenses. Together, the city esti-
mated that the cost of those impacts for 2009 was $29,425.
As such, the city asserted that the five percent franchise
fee—at around $30,000 per yearwasa reasonable esti-
mate of the annual cost to the city. Additionally, the city
pointed out that the five percent fee was consistent with
franchise fees that it imposes on other utilities operating in
city streets, including the local gas, telephone, power, and
cable television companies.
For its part, RVS disputed the existence of any
direct relationship between the franchise fee and the costs
that RVS's operations impose on the city. RVS argued that
the costs that the city identified are part of the normal oper-
ations of a city public works department—such as receiving
phone calls from citizens—and therefore are not caused by
RVS's operations, while other alleged costs are negligible or
nonexistent. RVS asserted that, when it proposes a project
within the city, it first submits a plan to the city's Public
CAP081315 Page 26
Cite as 357 Or 437 (2015) 443
Works Department for review and comment, and generally
receives a phone call or brief letter in response. The city typ-
ically observes any paving work to ensure that it meets the
city's standards, but, as noted, RVS bears the cost of the
paving and construction work associated with its projects.
At the time of summary judgment, only one project in the
city had required any street cutting or repaving, and only
one was planned for the upcoming year. RVS also argued
that the costs of its operations in the city are covered by var-
ious fees that the city charges—for example, a right-of-way
encroachment fee charged to cover the cost of plan review
for projects that impact the right-of-way.
Further, in its motion for summary judgment, RVS
argued that the city's home -rule authority to impose a fran-
chise fee was preempted by state law because franchise fees
are controlled by state statute. RVS also stated in its brief
although in the "Background Facts" section rather than as
a legal argument—that, "even assuming that [the city] has
authority to impose a franchise fee on RVS, the Ordinance
as worded relies upon an improper interpretation of Oregon
statutes, is too broadly written and has no rational basis
to support the rate." The city filed a cross-motion for sum-
mary judgment, arguing that it had authority to enact the
ordinance and that the fee "represents a reasonable esti-
mate of the annual cost to the City of the many impacts of
RVS identified in the Ordinance," and concluding that"[tlhe
5% fee is reasonable by all standards."
The trial court articulated the issue presented as
"whether or not the City xxx under its home rule charter
can charge a franchise fee on sewer operations provided by
[RVSI." The court found that "the analysis of the [city] in
its motion and in its response to [RVS's] motion is correct in
that it has the authority to impose the fee." Therefore, the
court granted the city's motion for summary judgment and
denied RVS's motion for summary judgment.
The city then submitted a proposed general judg-
ment. RVS objected to the proposed judgment on the ground
that the trial court's order resolved only the issue whether
the city had authority to charge the fee, but did not resolve
CAP081315 Page 27
444 Rogue Valley Sewer Services v. City of Phoenix
the issue of the reasonableness of the fee. RVS argued that
a question of fact existed as to the reasonableness of the fee
that precluded summary judgment and pointed to "compet-
ing affidavits" on the issue. RVS suggested that a limited
judgment—addressing only the issue of the city's authority
to impose the assessment—would be more appropriate. In
response, the city argued that the amount of the fee should
be left to the discretion of the city and was not at issue in the
case.
The trial court overruled RVS's objection to the
proposed general judgment, concluding that "there [was]
nothing left for the Court to adjudicate" because "nothing
in the complaint [or in RVS's motion for summary judgment
suggested that] RVS [] also challenged the reasonableness of
the fee in the event [the city's] authority was upheld." In so
holding, the court concluded:
"To be sure, in arguing the ordinance is too broad, RVS
cited the amount of the fee, but any such argument is sub-
sumed within the argument about the propriety of the ordi-
nance (assuming [the city] had the authority to enact it),
and the Court's decision upholding [the city]'s authority to
impose the fee, the content of the ordinance, and the impo-
sition of the fee, disposed of RVS'[s] argument about the
amount of the fee."
The court entered a general judgment in the city's favor.
RVS appealed, arguing that "the trial court erred
in concluding that the city was authorized to impose the
five percent franchise fee, and, alternatively, that the court
erred in granting summary judgment because genuine
issues of material fact exist regarding calculation of the
fee." Rogue Valley, 262 Or App at 187. As to the first argu-
ment, the Court of Appeals concluded that RVS's status as
a local government did not circumscribe the city's authority
as a home -rule municipality and that the city's home -rule
authority to enact the fee was not preempted by state law.
Id. at 188, 199. As to the second argument, the Court of
Appeals concluded that RVS had not preserved its argument
regarding the reasonableness of the amount of the fee and
rejected RVS's argument that the parties had tried the issue
by consent. Id. at 201-02. RVS petitioned for review in this
court, and we allowed the petition.
CAP081315 Page 28
Cite as 357 Or 437 (2015) 445
II. ANALYSIS
Ordinarily, when a "petitioner ['sl arguments impli-
cate the authority of [a] city, we begin with I I I the author-
ity of such local governments" under the "home -rule" provi-
sions of the Oregon constitution. Gunderson LLC u. City of
Portland, 352 Or 648, 658-59, 290 P3d 803 (2012). "'Home
rule' itself is not a constitutional term, and the actual consti-
tutional terms differ from state to state. But'home rule' has
been described as the 'political symbol' for the objectives of
local authority." L¢Grande/Astoria u. PERB, 281 Or 137,140
n 2, 576 Ptd 1204, adhii to on recons, 284 Or 173, 586 Ptd
765 (1978). Home rule is the authority granted to Oregon's
cities by Article XI, section 2, and Article IV, section 1(5), of
the Oregon Constitution—adopted by initiative petition in
1906—to regulate to the extent provided in their charters.
Article XI, section 2, provides, in part, "The legal voters of
every city and town are hereby granted power to enact and
amend their municipal charter, subject to the Constitution
and criminal laws of the State of Oregon[.l" In the same
1906 election, voters "reserved" initiative and referendum
powers "to the qualified voters of each municipality and dis-
trict as to all local, special and municipal legislation of every
character in or for their municipality or district." Or Const,
Art IV, § 1(5).
RVS argues, however, that the home -rule analysis
does not apply—or does not apply in the same way—in the
context of a fee or tax that one governmental entity imposes
on another and that the Court of Appeals erred in conclud-
ing that RVS's status as a local government has no impact
on the city's home -rule authority. As noted above, RVS is
a sanitary authority, and the legislature has expressed its
intention that sanitary authorities be considered municipal
corporations and a type of local government under Oregon
law. For those reasons, RVS claims, the trial court erred in
granting the city's motion for summary judgment based on
its home -rule authority. We review the trial court's rulings
on summary judgment "to determine whether 'there is no
genuine issue as to any material fact' and whether'the mov-
ing party is entitled to prevail as a matter of law."' Baelev u.
Mt. Bachelor Inc., 356 Or 543, 545, 340 P3d 27 (2014) (citing
ORCP 47 C).
CAP081315 Page 29
446 Rogue Valley Sewer Services v. City of Phoenix
A. Intergovernmental Taxation
RVS first argues that this is not a "home rule'
case because it involves "intergovernmental taxation." RVS
argues that the city must first have unmistakable, express
statutory authority before it can impose taxes or fees on
another local government. RVS draws that rule from three
of this court's cases: Portland u. Multnomah County, 135 Or
469, 296 P 48 (1931); Portland u. Welch et al., 126 Or 293,
269 P 868 (1928); and Cent. Lincoln PUD u. State Tax Com.,
221 Or 398, 351 Ptd 694 (1960). The city responds that this
case concerns a fee, rather than a tax, and therefore that
that case law is inapplicable.
All three ofthe cases uponwhich RVS relies concern
the imposition of a tax. In Welch, a city had offered land for
sale, but had not yet sold that land, and this court held that
the county in which the land was located could not impose
otherwise applicable property taxes on that land. 126 Or at
294-97. In Multnomah County, the opposite occurred: the
property was in private ownership on "tax day" when taxes
were assessed, but a city bought the property before any tax
had been levied. 135 Or at 470. This court held the property
was nonetheless "clearly exempt from taxation." Id. at 473.
In Central Lincoln, this court held that plaintiff, a people's
utility district (PUD), was subject to a utility corporation
excise tax. 221 Or at 401, 407. However, the court concluded
that its interpretation of the statute at issue did not nec-
essarily extend the tax to municipal corporations because
" ftlhe intention to tax a municipality is not to be inferred,
but must be clearly manifested by an affirmative legislative
declaration." Id. at 406. In that case, a clear legislative dec-
laration of the intention to tax PUDs existed, because PUDs
were specifically included in the statute. Id.
"A tax is any contribution imposed by government
upon individuals, for the use and service of the state. A fee,
by contrast, is imposed on persons who apply for or receive
a government service that directly benefits them." McCann
u. Rosenblum, 355 Or 256, 261, 323 P3d 955 (2014) (inter-
nal quotation and citation omitted). In McCann, this court
quoted Qwest Corp. u. City of Surprise, 434 F3d 1176, 1183
(9th Cir 2006), in support of the rule that the distinction
CAP081315 Page 30
Cite as 357 Or 437 (2015) 447
between a tax and a fee is whether the "charge is expended
for general public purposes, or used for the regulation or ben-
efit of the parties upon whom the assessment is imposed."
McCann, 355 Or at 261-62. Thus, the ballot measure at issue
in that case, which would have imposed a markup on whole-
sale alcohol sales, was properly labeled a "tax," because the
revenues generated by the markup would be distributed to
the state's general fund, as well as to the general funds of
cities and counties, and would be available for general gov-
ernment use. Id. at 261-62; see also Dennehy u. Dept. of Rev.,
305 Or 595, 605-06, 756 Ptd 13 (1988) (state statute did
not contravene constitutional limits on property taxation,
because "fulrban renewal financing is not a single, state-
wide tax to fund public structures or services unrelated to
the source of funding"; rather, it "places the cost of urban
renewal on the property that benefits from the expenditure
of the funds so raised").
A fee, then, is imposed on particular parties and is
used to regulate or benefit those parties rather than being
used for general public purposes or to raise revenue for such
purposes. In this case, the ordinance applies to one particu-
lar party only, RVS, and the ordinance directs that the city
will "allocate money collected from RVS only for costs and
reimbursement connected with proper regulatory purposes."
The money collected from the franchise fee is to be used to
cover "the full costs and full impacts associated with [RVS's]
use, occupation, and other activities" in the city's rights-of-
way, including "the additional oversight and associated costs
incurred from City administration, maintenance and repair
of City -owned facilities within City right-of-ways, special
services performed by the City, and office and field -related
costs." Although RVS expresses skepticism as to whether the
fee actually will be directed towards regulatory purposes
related to sanitary services, as the city claims, nothing in
the recordindicates that the fee will be used for general gov-
ernment purposes, rather than for appropriate regulatory
purposes.
In sum, the record establishes that the city will use
the money collected from the franchise fee to regulate and
benefit the party from whom the fee is collected and to cover
CAP081315 Page 31
448 Rogue Valley Sewer Services v. City of Phoenix
costs directly imposed on the city by that party. That "dis-
tribution scheme" and the "uses to which that money [can]
be put" demonstrate that the ordinance provides for the col-
lection of a fee, rather than a tax. McCann, 355 Or at 262
(wholesale alcohol markup properly labeled a "tax," because
not "used to provide services that directly benefit whole-
salers" but, rather, distributed to state, cities, and counties
for general government use). Because we conclude that the
ordinance provides for the collection of a fee, and not a tax,
RVS's arguments based on the prohibition of intergovern-
mental taxation discussed in some of our cases are inappo-
site here.'
B. Regulation of Other Public Entities
RVS next argues that the city cannot justify the
franchise fee based on its home -rule authority because reg-
ulation of another governmental entity is different from
regulation of private entities under the city's home -rule
powers. To allow regulation of other government entities,
RVS argues, would create a hierarchy among local govern-
ments that has no support in the law and would allow a city
to exercise authority beyond its boundaries. It contends that
such "extramural" or "extramunicipal" activity is not within
the scope of a city's home -rule powers and is impermissible
unless authorized expressly by statute.
RVS is correct that this court has recognized some
limits on a local government's authority to compel or coerce
another government to take some affirmative action. See
' At oral argument, RVS also argued that the ordinance cannot bosom to
provide Cor a -us, fee" because such fees arc charged in eschmege Cor some service,
right, or privilege. RVS claims that the city had already transferred the right to
use the right-oGway to RVS by consenting to the annexation. See ORS 450.815(9)
(a sa itary authority has the prover, to "[llay its sewms and drains in any public
street, highway or road in the county, and for this purpose enter upon it and
make all necessary and proper excavations restoring it to As proper condition ),
Thatis, ItVS argues, no benefit is conferred on ItVS in exchange for the franchise
fee, and therefore the ordinance cannot be characterized as a fee. We disagree.
As noted, a Cee is "'used for the regulnt(mz or beaefit of the lassessed] partes
AIX muo. 355 Or at 282 [quoting Qme.vt Corp., 434 yid at 1182 [e�nphay.,added]].
Although there in, be circumstances where the terns of conferring the benefit
on an .,sed party preclude,., the Tater imposition of a fee in the come of regu-
lation, that is not the situation in this ease, Even if we were to accept RVS'., argu-
ent that authority to use the right of %v ay was transferred with the annexation,
the ordinance provides for a fee for "regulation" of RVS; there is no requirement
that the ordinance also confer some additional benegt.
CAP081315 Page 32
Cite as 357 Or 437 (2015) 449
City of Eugene u. Roberts, 305 Or 641, 649-650, 756 Ptd 630
(1988) (home rule did not provide city with authority "to
compel action by state and county officials" to put an advi-
sory question on the state primary election ballot); DeFazio
u. WPPSS, 296 Or 550, 582, 679 Ptd 1316 (1984) (cities lack
authority to "assert coercive authority over persons or prop-
erty outside [their] boundaries'). For example, in Kiernan
u. Portland, 57 Or 454, 111 P 379, recons den, 57 Or 454,
112 P 402 (1910), dismissed for lack of jurisdiction, 223 US
151, 32 S Ct 231, 56 L Ed 386 (1912), the City of Portland
amended its charter to provide for construction of the
Broadway Bridge and that, "upon completion of the bridge [ j
the executive board shall surrender and deliver the posses-
sion thereof to the county court of Multnomah County." Id.
at 462. This court held that it was "beyond the power of the
[Clity [of Portland] to impose the care and maintenance
of a public bridge upon Multnomah County without the
county authorities['] consent thereto." Id. at 463. That was
so because Portland was attempting to compel Multnomah
County to assume a new governmental function—bridge
maintenance—and local governments cannot interfere with
another government's exercise of its own governmental
power and functions. See also Orval Etter, Municipal Home
Rule On and Off "Unconstitutional Law in Oregon"Now and
Then 103 (Sourcebook ed 1991) (describing Kiernan as "the
first ruling that home rule does not enable a city to change
a power or duty of a governmental entity other than the
city"); Letter of Advice dated Dec 24, 1985, to Senator Ken
Jernstedt (OP -5863) (concluding that city could impose an
excise tax or municipal surcharge on bridge tolls, but could
not compel the port to collect a tax on tolls because "a munic-
ipality, absent statutory authority, may not impose a duty
upon any other political subdivision or agency of the state to
collect municipal taxes").
Those principles, however, do not go so far as to pro-
hibit the city's fee in this case. While City of Eugene and
Kiernan demonstrate that a city cannot, on the basis of its
home -rule authority, impose a duty on or impair a power of
another governmental entity, nothing in those cases would
prevent a city from exercising the same kind of regulatory
authority over specific services provided by another local
CAP081315 Page 33
450 Rogue Valley Sewer Services v. City of Phoenix
government entity on the same basis as services provided
within the city by a private business. In this case, the fran-
chise fee of five percent of RVS's revenue places RVS on an
equal footing with other utilities operating within the city.
As discussed further below, the legislature has provided a
framework for cities to collect a franchise fee from utilities,
both public and private, operating within their rights-of-
way. See ORS 221.420; ORS 221.450. Where cities and util-
ities have not entered into an agreement for a different fee
arrangement, the legislature provides for a five percent fee.
ORS 221.450. Although RVS correctly points to limits on
the home -rule doctrine that prohibitlocal governments from
compelling affirmative conduct by other government enti-
ties, the limitations that it has identified do not restrict the
city's authority to pass the ordinance at issue in this case.
C. Home Rule
Under a city's home -rule authority, "the validity of
local action depends, first, on whether it is authorized by the
local charter or by a statute [, and] second, on whether it con-
travenes state or federal law." L¢Grande/Astoria, 281 Or at
142. The parties do not contend that the ordinance was not
authorized by the city's charter, which provides that the "city
has all powers that the constitutions, statutes, and common
law of the United States and of this state now or hereafter
expressly or impliedly grant or allow" and that the charter
is to "be liberally construed so the city may exercise fully all
powers possible under this charter and under United States
and Oregon law." City of Phoenix Charter, § 4-5. Therefore,
we must determine "whether the local rule in truth is incom-
patible with the legislative policy, either because both can-
not operate concurrently or because the legislature meant
its law to be exclusive." L¢Grande/Astoria, 281 Or at 148.
In making that determination, we assume that "the
legislature does not mean to displace local civil or admin-
istrative regulation of local conditions by a statewide law
unless that intention is apparent." LaGrande/Astoria, 281
Or at 148-49 (footnote omitted). A state statute will displace
the local rule where the text, context, and legislative his-
tory of the statute "unambiguously expresses an intention
to preclude local governments from regulating" in the same
CAP081315 Page 34
Cite as 357 Or 437 (2015) 451
area as that governed by the statute. Gunderson, 352 Or at
663 (emphasis added); see also US West Communications u.
City of Eugene, 336 Or 181, 186, 81 P3d 702 (2003) (applying
standard statutory interpretation methodology to a question
of home -rule city's authority to impose fee on telecommuni-
cations company).
RVS argues that ORS 221.420 and ORS 221.450
establish a comprehensive, statewide scheme that the legis-
lature intended to be the exclusive basis for city imposition
of fees upon utilities for using public rights-of-way. The city
responds that those statutes do not address sanitary author-
ities and, therefore, the legislature has not unambiguously
expressed any intention to preempt the ordinance at issue
here.
ORS 221.420(2)(a) provides that a city may:
"Determine by contract or prescribe by ordinance or other-
wise, the terms and conditions, including payment of
charges and fees, upon which any public utility, electric
cooperative, people's utility district or heating company, or
Oregon Community Power, may be permitted to occupy the
streets, highways or other public property within such city
and exclude or eject any public utility or heating company
therefrom."
RVS, as a sanitary authority organized under ORS
chapter 450, is not a "public utility" under ORS 221.420.
ORS 221.420(1)(a) provides that"public utility' is to be given
the meaning provided in ORS 757.005, which defines "public
utility" to include only those entities furnishing "heat, light,
water or power." ORS 757.005(1)(a)(A). RVS does not provide
heat, light, water or power; it provides sanitation services.
Therefore, ORS 221.420(2)(a) does not affirmatively provide
authority for the city to impose the fee at issue in this case,
but neither does it, standing alone, unambiguously preclude
the city from imposing the fee.
RVS also points to ORS 221.450, which provides:
"[Elvery incorporated city may levy and collect a privilege
tax from Oregon Community Power and from every elec-
tric cooperative, people's utility district, privately owned
public utility, telecommunications carrier as defined in
ORS 133.721 or heating company. The privilege tax may
CAP081315 Page 35
452 Rogue Valley Sewer Services v. City of Phoenix
be collected only if the entity is operating for a period of
30 days within the city without a franchise from the city
and actually using the streets, alleys or highways, or all
of them, in such city for other than travel on such streets
or highways. The privilege tax shall be for the use of those
public streets, alleys or highways, or all of them, in such
city in an amount not exceeding five percent of the gross
revenues of the cooperative, utility, district or company
currently earned within the boundary of the city. However,
the gross revenues earned in interstate commerce or on
the business of the United States Government shall be
exempt from the provisions of this section. The privilege
tax authorized in this section shall be for each year, or part
of each year, such utility, cooperative, district or company,
or Oregon Community Power, operates without a fran-
chise"
Like ORS 221.420, ORS 221.450 does not explicitly apply to
sanitary authorities like RVS.
Read together, RVS argues, ORS 221.420 and ORS
221.450 provide statutory authority that, for the enumer-
ated entities to which they apply, permits a city to either
enter into a franchise agreement with a utility or impose a
privilege tax in lieu of negotiating a franchise agreement.
The legislative history of House Bill (HB) 3021—the 1987
revision to ORS 221.420 and ORS 221.450—suggests that
the legislature was told that the statutes would operate so
that ORS 221.450 functioned as a "penalty clause," such
that,
"if xxx [y] on, as a private utility xxx don't sit down and
negotiate a franchise regulation ordinance or agreement so
that we're working together, then you're going to pay more.
You're going to pay five percent. If you come in and get a
franchise, and you sit down at the table *** and we mutu-
ally regulate it together, basically, then [you pay less]."
Tape Recording, House Committee on Environment and
Energy, HB 3021, Apr 22, 1987, Tape 122, Side B (statement
of Larry Shaw).
RVS argues, therefore, that the legislature intended
to occupy the field and preempt cities from imposing fees
on public utilities other than through the comprehensive
scheme established by ORS 221.420 and ORS 221.450. In
CAP081315 Page 36
Cite as 357 Or 437 (2015) 453
particular, RVS argues that the legislature intended the
list of utility service providers in ORS 221.420(2)(a) to be
construed as an exclusive list of utility service providers
that a city may target for such charges and fees—and that
all other nonenumerated entities cannot be charged simi-
lar charges or fees. Put differently, from those affirmative
statutory authorizations of privilege taxes that a city may
charge for certain utilities operating within the city, RVS
draws the negative implication that a city may not impose
such taxes or fees on other utilities.
Even if ORS 221.420 and ORS 221.450 establish a
comprehensive scheme as to municipal regulation of some
entities—an issue that we do not decide—that conclusion
would not preclude the city's fee in this case. RVS essen-
tially argues that, because sanitary authorities are not
specifically enumerated in ORS 221.420, the legislature
intended to exempt sanitary authorities from franchise fees.
Although RVS does not explicitly use the Latin term, that
argument invokes the logic of ezpressio unius est exclusio
alterius, literally "the expression of one is the exclusion of
others." See Blacks Law Dictionary 701 (10th ed 2014) ("A
canon of construction holding that to express or include one
thing implies the exclusion of the other, or of the alternative.
For example, the rule that `each citizen is entitled to vote'
implies that noncitizens are not entitled to vote."). Expessio
unius arguments are most powerful when there is reason
to conclude that a list of enumerated terms was intended to
be exhaustive. See Colbv U. Gunson, 224 Or App 666, 671,
199 P3d 350 (2008) ("the ezpressio unius guide to legisla-
tive intent corroborates, rather than supplies, meaning to a
statute").
To show that the legislature intended the list to be
exhaustive, RVS points to legislative history from HB 3021
relating to a proposal to add certain publically owned utili-
ties to the lists of already -enumerated privately owned enti-
ties in ORS 221.420 and ORS 221.450. In the hearings on
HB 3021, a representative wondered whether the bill would
apply to telephone cooperatives and was told it would not
"affect" entities that fell outside the definition of"public util-
ity." Tape Recording, House Committee on Environment and
Energy, HB 3021, Apr 22, 1987, Tape 122, Side B (statement
CAP081315 Page 37
454 Rogue Valley Sewer Services v. City of Phoenix
of Larry Shaw). From that slim legislative history, RVS con-
cludes that the franchise fee at issue here is invalid because,
if the statutes were not intended to apply to telephone coop-
eratives, they also were not intended to be applied to other
nonenumerated public entities.
A party that challenges a home -rule city's author-
ity as preempted by state law is required to show that the
legislature "unambiguously' expressed its intent—a high
bar to overcome. Gunderson, 352 Or at 663. As noted above,
in the context of the home -rule doctrine, we begin with
the assumption "that the legislature does not mean to dis-
place local civil or administrative regulation of local condi-
tions by a statewide law unless that intention is apparent."
L¢Grande/Astoria, 281 Or at 148-49. Only where the legis-
lature "unambiguously expresses an intention to preclude
local governments from regulating" in the same area gov-
erned by an applicable statute can that presumption against
preemption be overcome. Gunderson, 352 Or at 663 (empha-
sis added); of. State ex rel Haley u. City of Troutdale, 281 Or
203, 211, 576 Ptd 1238 (1978) (because any legislative intent
to preempt local action exceeding state "minimum" construc-
tion standards was "not unambiguously expressedf,l local
requirements compatible with compliance with the state's
standards are not preempted").
The legislative history of HB 3021 does not rise to
the level of "unambiguously" expressing legislative intent to
occupy the field. See State u. Gaines, 346 Or 160, 172-73 n 9,
206 Pad 1042 (2009) (reliance on "the beliefs of a single leg-
islator or witness" is "fraught with the potential for miscon-
struction"). Notably, the legislature has expressly preempted
local regulation of certain areas of law by using the word
"preempt" itself. See ORS 731.840(4) (" Whe State of Oregon
hereby preempts the field," and "filo county, city, district,
or other political subdivision or agency in this state shall so
regulate"); ORS 203.090 ("Thefsel provisions'`** preempt
any laws of the political subdivisions of this state relating
to the regulation of private security providers."). In other
statutes, it has expressed its disapproval of conflicting local
laws in equally clear terms. See ORS 461.030(1) ("no local
authority shall enact any ordinances, rules or regulations
CAP081315 Page 38
Cite as 357 Or 437 (2015) 455
in conflict with the provisions hereof"). However, we see no
reason to imply such broad preemption of the entire field of
utility regulation from the explicit authorization of regula-
tion of certain other utilities.
Further, ORS 221.420 and ORS 221.450 do not cre-
ate a statutory scheme that prevents the state law and local
ordinance from operating concurrently. LaGrandelAstoria,
281 Or at 148. Rather, the state regulates less extensively
than the local ordinance, and leaves it to cities to enact rea-
sonable conditions of consent for sanitary authorities. See
ORS 450.815(7); of. State ex rel Haley, 281 Or at 205, 211
(state building code providing for single wall construction
did not indicate that legislature intended to prevent cities
from enacting additional safeguards—such as requiring
double wall construction—and at minimum such an inten-
tion was not "unambiguously expressed"); Thunderbird
Mobile Club u. City of Wilsonville, 234 Or App 457, 474, 228
P3d 650 (2010), rev den, 348 Or 524, 236 P3d 152 (2010)
("Under L¢GrandelAstoria, '' I the occupation of a field of
regulation by the state has no necessary preemptive effect
.EI'll Instead, a local law is preempted only to the extent
that it `cannot operate concurrently' with state law, i.e., the
operation of local law makes it impossible to comply with a
state statute.").
That conclusion is strengthened by two other
expressions of the legislature's intent. First, in HB 3021
the legislature provided that, by enacting ORS 221.420 and
ORS 221.450, it was simply "reaffirmlingl the authority of
cities to regulate use of municipally owned rights of way"
and that it "recognize[ed] the independent basis of legisla-
tive authority granted to cities in this state by municipal
charters." ORS 221.415 (emphasis added).'' That is, the leg-
islature apparently thought that HB 3021 was not neces-
sary to provide cities with authority to impose taxes and
fees because they already possessed that authority. Rather,
the legislature passed that bill in response to a then -recent
' Although ORS 221.415 goes on to also affirm the authority of cities to
Impose charges upon publicly owned suppliers of electrical energy, as well as
privately owned suppliers," we do not read that subordinate clause as negatng
the broader affirmation of the authority of cities to regulate their rights-of-way.
CAP081315 Page 39
456 Rogue Valley Sewer Services v. City of Phoenix
circuit court decision that had held to the contrary with
respect to a people's utility district
Second, in a different statute, the legislature appears
to have anticipated the kind of fee at issue in this case
and provided that such conditions on the use of the public
rights-of-way by a sanitary authority are appropriate. ORS
450.815(7), in defining the powers of a sanitary authority,
provides that a sanitary authority may:
"Lay its sewers and drains in any public street, highway or
road in the county, and for this purpose enter upon it and
make all necessary and proper excavations, restoring it to
its proper condition. Howeuer, the consent of the proper city,
county or state authorities, as the case may be, shall first be
obtained and the conditions of such consent complied with."
(Emphasis added.) The legislature apparently intended
that use of public rights-of-way by a sanitary authority be
contingent upon its compliance with reasonable conditions
imposed by a city.
Because neither ORS 221.420 nor ORS 221.450
unambiguously express a legislative intent to preempt local
Specifically, the legislature was rmeting to the thenrecentcircuit court
decision in Cob.mbiu Riper People's Utility Desb ict n City of 5't. Ileleas et a!, No.
85-2236 [Columbia County Circuit Court, duly 15, 1986), In thatcasa, the circuit
art hold that "the legislature has declared by inference that People's Utility
Districts are not subiact to franchise fees (excise taxes) such as defendant cities
desire to anposa," Id. at 3, The legislature passed I1B 3021'iusl [as] a legislative
nergeary fix for the problem [presented by the circuit court case] and [did net
go] beyond that"Tape Recording, Panic Committee on environment and Energy,
IIB 8921, Apr 22, 1987, Tape 122, Side B (statemanb of Larry Shaw). Spacificallg
the legislature was bold that the "bill only affects electrical utilities" and that
other entities, such as telephone cooperatives, were not affected by this bill at
all"Id. Because CoL<m62u Riper was pending before the Court of Appeals at the
Lime, a representative noted that, if the cities wanted to continue thea appeal 'on
a home rule issue that says that the city has the right to [Ruposa a fee]—theta
Lip to them—but that issue stands aside from this bill. The home rule eaas is
a little broader, I think, than what we are dealing with here" Tape Recording,
Senate Agriculture and Natural Resources Contractor, IIB 3921, Apr 29,
1987, Tape 188, Side A fstatamanb of Itep Bruce IIugol. Therefore, it appears
that the legislature did not intend ED 3021 to impact the home -rule authority of
cities, buy instead, merely to clarify that such a fee could be imposed on People's
Utility Districts. See also ORS 221.415 ('Recognizing the independent basis of
legislative authority granted to cities in this state by municipal charters, the
Legislative Assmnbly intends °"^° to reaffimn the authority of cities to regulate
use of rnunTcipally owned fights of way and to accuse charges upon publicly
owned suppliers of electrical energy, as well as privately owned suppliers for the
use of such fights of way.").
CAP081315 Page 40
Cite as 357 Or 437 (2015) 457
action, and also because the statutes and legislative history
suggest that the legislature in fact did not intend to preempt
local governments from imposing such conditions on the use
of their rights-of-way by sanitary authorities, we conclude
that the franchise fee at issue in this case is not preempted
by state law.
D. Reasonableness of the Fee
Finally, RVS argues that the Court of Appeals
erred in ruling that its argument challenging the reason-
ableness of the franchise fee was not preserved. RVS asks
that we remand the case to the trial court to resolve mate-
rial questions of fact relating to the amount of the fee that
may be imposed. See Eugene Theatre et al. u. Eugene et al.,
194 Or 603, 613, 243 Ptd 1060 (1952) (fee "far in excess of
what might be deemed reasonably necessary for purposes
of regulation" is invalid). The city responds that the issue is
unpreserved because RVS's complaint did not state a sep-
arate claim for relief regarding the amount of the fee and
RVS's motion for summary judgment focused on whether
the city had authority to impose the fee, not whether the fee
was reasonable. On that basis, the city argues that the trial
court and the Court of Appeals properly declined to reach
the issue whether the amount of the fee was reasonable.
Even if the affidavits and cross-motions for sum-
mary judgment in this case "might provide a basis for an
amendment to the pleadings to make it an issue," a court
may not "award relief outside the issues of the case." Heintz u.
Sinner et ux, 232 Or 529, 533, 376 Ptd 478 (1962). As noted,
RVS did not seek a declaration that the fee was unreason-
able in amount. Rather, RVS's complaint asked the court to:
"1. Declar[el whether the ordinance I** is valid and
whether RVS is required to collect and pay over the fee
described in said ordinance.
"2. Grant an injunction prohibiting [the city] from col-
lecting the franchise fee' * *.
"3. For other such relief as the court may deem
equitable"
Moreover, RVS did not seek to amend its complaint during
or after the summary judgment proceedings.
CAP081315 Page 41
458 Rogue Valley Sewer Services v. City of Phoenix
Here, as the trial court stated, "nothing in the
complaint """ challenged the reasonableness of the fee, in
the event ]the city's] authority was upheld." This court has
explained that
"a decree or judgment must be responsive to the issues
framed by the pleadings and a trial court has no authority
to render a decision on issues not presented for determina-
tion. In absence of amendment of the pleadings, evidence
received without objection will not provide a basis for such
a decree."
Brown u. Brown, 206 Or App 239, 245, 136 P3d 745 (2006),
rev den, 341 Or 449 (2006) (internal quotation and cita-
tion omitted); see also Central Oregon Fabricators Inc.
U. Hudspeth 159 Or App 391, 403, 977 Ptd 416, rev den,
329 Or 10 (1999) (trial court erred in granting relief on
unpleaded theory, where plaintiffs never sought leave to
amend pleadings). Because RVS did not move to amend the
pleadings, it was not error for the trial court to overrule
RVS's objection to the proposed judgment.' We conclude
that the trial court correctly declined to rule on an issue
not properly before it.
III. CONCLUSION
We hold that the city was authorized, under its
home -rule authority, to adopt the ordinance at issue in this
case. The franchise fee that the ordinance prescribes is not
preempted by state law. RVS did not present the issue of the
' Although RVS acknowledges that Its complaint did not state a separate
claim for,nlief regarding the amount of the fee, and that it did net otherwise
end Its pleading, it nevertheless argues that that Issue was m9ed by consent
du 9ng the summary judgment proceedings. Under ORCP 28 B, "When Issues
not raised by the pleadings on, teed by express or Implied consent of the parties,
they shall be treated in all respects as if they had been raised in the pleadings"
OItCP 23 B, A' om.v o. C(tp of S,r ,fi,1d, 122 Or App 196, 201, 857 Ptd 887 (1998)
("G'emerally, a trial coua has no authority to render a decision on an issue not
framed by the pleadings. m °" ORCP 23 B states a limited exception to this rule:
if the parties expressly or impliedly content, they may VY issues mtraised in the
pleadin, )Ilene, the a mount ofthe fee was discussed in the summaryjudgmemt
proceedings in connection with eharacterining the ordinance as a tax or fee, but
not in see king a d,,I,, tion,, to whether the a mount of a fee was rea,enable. We
the ef n a agree with the Coua of Appeal, that the issue of the reasonableness of
the fee wa, not tried by e.p, s, or implied mmn,at of the Avnet Rogue V.11,,
282 Or App at 201.
CAP081315 Page 42
Cite as 357 Or 437 (2015) 459
reasonableness of the amount of the fee to the trial court in
its pleadings.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
Return to Agenda
CAP081315 Page 43
Resolution
UGB Amendment for
CP=3
CAP081315 Page 44
STAFF REPORT
AGENDAITEM:
om—
CENTRAL
POINT
STAFF REPORT
August 13, 2015
Planning Department
lam Humphrey.AICP
Community FJevelopment r)irector/
Consideration of a Resolution of Intent to Amend the Central Point Urban Growth Boundary (UGB),
Comprehensive Plan (Map) and the Central Point Municipal Code (Map) to Add Land from the City's
Urban Reserve Area (URA) CP -3 for Job Creation in the City of Central Point.
STAFF SOURCE:
Tom Humphrey, Community Development Director
BACKGROUND:
The Community Development Department continues to meet with companies and property owners who
would like to see other areas of the City's UGB expanded so that additional employment lands can be
annexed and developed. The City has received a Letter of Assertion, (Attachment A) requesting that the
Council pursue a UGB Amendment from Urban Reserve Area (URA) CP -IB. Our Urban Growth
Boundary Management Agreement (UGBMA) with Jackson County states that individuals and groups
may petition the Countv orappropriate City ... for initiating major legislative amendments which this
would be. The City adopted an updated Economic Element in 2014 which will be used in determining the
need for more employment land.
ISSUES:
The Council is being presented with the above background information in order to determine whether it
wants the City to proceed with an Amendment of its Comprehensive Land -Use Plan.
As the Council is aware, the Department of Land Conservation and Development (DLCD) needs to be
notified whenever a city proposes changes to its Comprehensive Plan. If the Council is in support of the
changes being proposed with this staff report, and would like to proceed, then a Resolution of Intent
(Attachment B) can be adopted to start the amendment process. The specifics of the amendment need not
be discussed at this nine but opinions can be offered, direction can be given to staff and an amendment
can be initiated.
ATTACHMENTS:
Attachment "A" — Letter of Assertion from Joel Ockunzzi, Broker, Oregon Opportunities dated 7/31/15
Attachment'B"— Resolution No. AResolution Declaring the City Council's Intent to Initiate an
Amendment to the Central Point Urban Growth Boundary (UGB), and the Comprehensive Plan (Map) to
Add Land fvin the City's Urban Reserve Area (URA) CP -3 for Job Creation and Open Space
Preservation in the City of Central Point.
ACTION:
Discuss UGB Amendment and initiate a Comprehensive Land -Use Amendment by Resolution using the
provisions in Chapter 17.96.020.
RECOMMENDATION:
Deliberate and 1) Approve a Resolution of Intention to Amend the Comprehensive Land -Use Plan; 2)
Defer a Resolution of Intention to a later date; 3) Decline the Letter of Assertion.
CAP081315 Page 45
L
O P P D R T O N I T I E_ 5
July 31s�, 2015
Attn; Chris Clayton
City of Central Point City
City Manager
140 S. 3rd Street
Central Point, Oregon 97502
541-664-3321
Chris,
Please be advised that I represent the parties in the process for transacting a purchase
and sale of the real property located at the intersection of Peninger Road & East Pine
Street known as, [two legally created parcels identified as; 37 2W 02D TL500 & TL600
totaling 17.14+/- acres and commonly known as Norcross].
The purpose for the transaction is for near term future development into an upscale
retail commercial center intended to include nationally known large retailers along with
consumer friendly pads for establishments, such as eateries, financial, apparel, etc. This
will require necessary action on the part of Central Point and Jackson County to initiate
the amendment process for expansion of the urban growth boundary, retail commercial
zone changes, and all other access requirements.
With the combined support and cooperation of Central Point and Jackson County the
enhancement by these actions taken will establish this location as what may best be
described as the gateway to the Expo, Jackson County Fairgrounds, and the forward
looking identity of Central Point.
This is an exciting opportunity and we look forward to working with you, the City of
Central Point, and Jackson County to accomplish our mutual goals!
Thank you in advance for your efforts to help see this through to fruition.
Respectfully,
Joel R. Ockunzzi — Broker licensed in the State of Oregon
Oregon Opportunities
? IR Bu.inc,, Park Dricc R00.7717''R 1 Paz D 11.77''.7001
19cdlord. OR 97?01 ?11.77'--.0000 00o.orop.com
CAP081315 Page 46
RESOLUTION NO.
A RESOLUTION DECLARING THE CITY COUNCIL'S INTENT TO INITIATE AN
AMENDMENT TO THE CENTRAL POINT URBAN GROWTH BOUNDARY (UGB),
AND THE COMPREHENSIVE PLAN (MAP) TO ADD LAND FROM THE CITY'S
URBAN RESERVE AREA (URA) CP -3 FOR JOB CREATION AND OPEN SPACE
PRESERVATION IN THE CITY OF CENTRAL POINT
RECITALS:
A. An amendment of the Central Point Comprehensive Land Use Plan may be initiated
by adoption of a resolution of intention by the City Council (Chapter 17.96.200.B);
and
B. The City's Urban Growth Boundary Management Agreement (UGBMA) with
Jackson County states that individuals and groups may petition the County or
appropriate City ... for initiating major legislative amendments. The City Council has
received a request to initiate a UGB amendment for property located in a newly
formed Urban Reserve Area (URA) known as CP -3.
C. The City Council has reason to believe that expansion of the UGB into CP -3 and
changes to the Comprehensive Plan (map) will facilitate the relocation and growth of
a prominent regional business and promotejob creation in the city consistent with the
development objectives for CP -3.
D. The City Council determines that it is in the City's economic interest and that the
public necessity and convenience and general welfare support such an amendment.
The Citv of Central Point resolves
Section 1: By this resolution the City Council authorizes the Community Development
Department to proceed with consideration of an amendment to the Urban Growth Boundary
(UGB), including necessary and related Comprehensive Plan (Map) Amendments.
Section 2: Unless otherwise authorized by the City Council the UGB amendment shall be
limited to URA CP -3 and the uses agreed to in the Regional Plan.
Section 3: All conditions of the Regional Plan Element applicable to UGB expansions in
general, and to CP -3 specifically, shall be satisfied in order to amend the UGB.
Section 4: Prior to formal application for the actions cited in Section 1 of this resolution the
requirements of Section 17.96 of the City of Central Point Municipal Code shall be met.
City Council Resolution No. (8/13/2015)
CAP081315 Page 47
PASSED by the Council and signed by me in authentication of its passage this 131' day of
August, 2015.
Mayor Hank Williams
ATTEST:
City Recorder
City Council Resolution No. (8/13/2015)
CAP081315 Page 48
Ordinance
Amending CPMC
Chapter 17 Zoning
The Official Ordinance will be presented at the
Council Meeting on Thursday night. The one
presented in the packet is a working document
for explanation purposes.
CAP081315 Page 49
STAFF REPORT
om—
CENTRAL
POINT
STAFF REPORT
August 13, 2015
Planning Department
lam Humphrey.AICP,
Community fJevelopment f]irector/
AGENDA ITEM: IV -A
Consideration of miscellaneous amendments to the Central Point Municipal Code, Zoning Ordinance
(Sections 17.08 Definitions; 17.24 R-2 District, 17.28 R-3 Disnicr, 17.32 C -N Disnicr, 17.37 C -2(M)
Disnicr, 17.44 C-4 Disnicr, 17.46 C-5 Disnicr, 17.57 Fences; 17.60 General Regulations; 17.65 TOD
District Zoning Regulations and 17.75 Off -Street Parking)
STAFF SOURCE:
Don But, Planning Manager
Ton Humphrey. Community Development Director
BACKGROUND:
Periodically it cones to the attention of City staff that the Zoning Code is in need of some minor
adjustment to improve its clarity, and hence its administration. At this time staff is proposing eleven (11)
minor amendments as follows:
Amendment 1, Section 17.08. 010 Definitions, specific and 17.08.410 TOD District and Corridor
Definitions and Uses
Added the following definitions:
• "NAICS - North American Industrial Classification System". This tern is being
used in Amendment 9.
• "Senor Housing" previously not defined in either 17.08.0 10 or 17.08.410, but
used in the Zoning Ordinance.
• "Independent Living" defined as a type of Senor Housing
• "Assisted Living" defined as a type of Senor Housing
• "Personal Care" defined as a type of Senor Housing
• "Nursing Facility" currently not defined, but used in the Zoning Ordinance.
The definitions related to Senior Housing have been added to address the different types of senior
housing being provided in today's market. The proposed change does not alter current policy.
Amendment 2, Section 17.24 R-2 District
17.24.020 Permitted Uses amended to clarify that all permitted residential uses must comply with
the R-2 districts minimum and maximum density standards, lot coverage and setbacks.
17.24.020(A) amended to read "Single-family detached" eliminating the language "One single-
family dwelling". This was done to clarify that single-fanily detached dwellings are permitted
but subject to compliance with density standards. This is necessary to assure that the City meets
its density objectives as set forth in the Regional Plan Element.
17.24.020(C) amended to remove reference to "One nvo-family dwelling" and replace with
"Duplex and single-family attached dwellings" as used in the R-3 district.
Page I of 3
CAP081315 Page 50
Amendment 3, Section 17.28 R-3 District
Section 17.28.020(A) and (B) Permitted Uses amended to eliminate as permitted uses single-
family detached dwellings and manufactured hones. These two uses cannot meet the density
requirements of the R-3 district and are therefore not a use consideration.
Amendment 4, Section 17.32 GN District
17.32.020(A) Permitted Uses amended to remove "other than those related to health care" for
professional and office uses. There was no rational reasoning for this restriction.
17.32.020(H) Permitted Uses amended to add statement regarding "Other uses not specified..."
used in other zoning districts.
Amendment 5, Section 17.37 C -2(M) District
17.37.020(A) Permitted Uses amended to delete "including" to be replaced with "such as" to
convey similarity in intended use.
17.37.020(6) Permitted Uses amended to add statement regarding "Other uses not specified...
used in other zoning districts.
Amendment 6, Section 17.44 C-4 District
17.44.020(A) Permitted Uses amended to add veterinary clinics as a permitted use as previously
approved by the Planning Commission (File No. 15007).
17.44.020(B) Permitted Uses amended to include the following language to the general
description of permitted uses "but not limited to". This clarifies the intent of the language to
provide examples of uses permitted.
Amendment 7, Section 17.46 C-5 District
17.46.020(A)(B)(C)(D) amended to include the "but not limited to language"
17.46.020(F) amended to remove the word "including" and replace with "such as" which is
broader in application, but retains the descriptive intent in permitted light industrial use types.
Amendment 8, Section 17.57 Fences
17.57.020(C) General Regulations, Table `Fence Regulations" amended to add a maximum
height limitation of six (6) feet.
17.57.020(C) General Regulations, Table `Fence Regulations" amended to delete language
"Chain Link Fencing, Apace -Board -Type Fencing, etc." to be replaced with "Fences in
Floodplain or Drainage Casements". The intent is to regulate fencing in a floodplain or drainage
easement, not the type of fencing.
17.57.020(C) General Regulations, Table `Fence Regulations" amended to add a maximum
height limitation of six (6) feet. The six (6) foot maximum height limitation has been standard
practice.
17.57.020(C) General Regulations, Table `Fence Regulations" explanation (a-1) amended to
remove reference to "6' fence" and replaced with `7' fence" per prior modifications.
17.57.020(C) General Regulations, Table `Fence Regulations" explanations (b, c, & d) to remove
the asterisks. The asterisks have no known meaning or reference.
17.57.020(C) General Regulations, Table `Fence Regulations" explanation (c) added language
referencing sight distance code section.
Page 2 of 3
CAP081315 Page 51
17.57.020(0 General Regulations, Table `Fence Regulations" explanation (e) added language
regarding impeding or diverting water through drainage easements.
17.57.020(C) General Regulations, Table `Fence Regulations" explanation (f) modified language
regarding variances.
Amendment 9, Section 17.60 General Regulations
17.60.140(A)(1) Authorization for Similar Use amended to add reference to the NAICS. This
legitimizes the City's prior use of the NAICS as a source for determining use similarity.
17.60.140(A)(2) Authorization for Similar Use amended removing the "not anticipated ..."
criteria. This particular criterion is not of value in determining use similarity. It is impracticable
for a land use code to consider and track all uses.
Amendment 10, 17.65.050 Zoning Regulations — TOD District and 17.65.060 Land Use — TOD
Corridors
17.65.050, Table 1 amended to allow personal service oriented uses in the MMR and HMR
district subject to being located on the ground floor of a multiple -family building or as second
story offices when located adjacent to an EC district. This applies the same criteria as used for
professional offices in the MMR and HMR district.
17.65.060, Table 4 amended to allow personal service oriented uses in the MMR district subject
to being located on the ground floor of a multiple -family building. This applies the same criteria
as used for professional offices in the MMR TOD Corridor.
17.65.050, Table 1 and 17.65.060, Table 4 amended explanation L3 to read `Permitted in existing
commercial building or new construction and clarified area limitation of 10,000 sq. f. as a
maximum. The intent of this amendment is for clarification, particularly as pertains to existing
commercial buildings.
Amendment 11, Section 17.75.039 Off -Street Parking Design and Development Standards
17.75.039 Off -Street Parking Design and Development Standards amended to add minimum
compact parking spaces. The Zoning Ordinance currently refers to and allows compact parking,
but does not identify the minimum dimensions for compact parking.
ISSUES:
All of the above amendments are administrative amendments necessary for the clear, concise, and
consistent use of the Zoning Ordinance. The amendments to not result in policy changes.
EXHIBITS/ATTACHMENTS:
Attachment "A"—Ordinance No. , An Ordinance Amending the Central Point Municipal Code
Zoning Sections to Correct Errors and Inconsistencies.
ACTION:
Consider proposed amendments and 1) forward the ordinance to a second reading, 2) make revisions and
forward the ordinance to a second reading or 3) deny the ordinance.
RECOMMENDATION:
Discuss ordinance proposal and forward ordinance and amendments to a second reading.
Page 3 of 3
CAP081315 Page 52
ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
ORDINANCE NO.
AN ORDINANCE AMENDING CENTRAL POINT MUNICIPAL CODE CHAPTER 17 ZONING
SECTIONS TO CORRECT ERRORS AND INCONSISTENCIES.
I
RECITALS:
A. Pursuant to CPMC, Chapter 1.01.040, the City Council, may frmn time to bine make revisions to
its municipal code which shall become part of the overall document and citation.
B. On July 7, 2015, the Central Point Planning Commission recommended approval of code
amendments to CPMC Chapters 17.08; Chapter 17.24; Chapter 17.28; Chapter 17.32;
Chapter 17.37; Chapter 17.44; Chapter 17.46; Chapter 17.57; Chapter 17.60;
Chapter 17.65 and Chapter 17.75. (zoning) .
C. On August 13, 2015, the City of Central Point City Council held a property advertised public
hearing: reviewed the Staff Report and findings: heard testimony and comments, and deliberated
on approval of the Municipal Code Amendment.
THE PEOPLE OF CENTRAL POINT DO ORDAIN AS FOLLOWS:
SECTION L Amendments to Sections 17.08 Definitions; 17.24R-2 District; 17.28 R-3 District;
17.32 C -N District; 17.37 C -2(M) District; 17.44 C-4 District; 17.46 C-5 District; 17.57 Fences;
17.60 General Regulations; 17.65 TOD District Zoning Regulations and 17.75 OffStreetParking
are intended to correct errors, improve clarity and administration of the municipal code.
Amendment 1
Section 17.08 Definitions
"NAICS" means the North American Industry Classification System (NAICS), the
standard used by Federal statistical agencies in classifying business establishments for
the purpose of collecting, analyzing, and publishing statistical data related to the U.S.
business economy.
"Senior Housing" means housing designed and constructed to accommodate the needs of
seniors and includes the following as defined herein: independent living facility, personal
care facility., and assisted living facility. Senior housing does not include nursing facilities.
Page 1 of 24
CAP081315 Page 53
ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
"Independent Living" means a multi -unit senior housing development, also known as congregate
housing that provides supportive services such as meals (common dinning), housekeeping,
social activities, and transportation.
"Assisted Living" means a state -licensed program offered at senior residential facilities with
services that include meals, laundry, housekeeping, medication reminders, and assistance with
Activities of Daily Living (ADLs) and Instrumental Activities of Daily Living (IADLs).
"Personal Care Facilitymeans a state licensed facility that specializes in caring for the memory
impaired resident.
"Nursing Facility" means a facility licensed by the state that provides 24-hour nursing care, room
and board, and activities for convalescent residents and those with chronic and/or long-term
illnesses. The availability of regular medical supervision and rehabilitation therapy is required.
This alternative may be referred to as a Nursing or Convalescent Home.
Section 17.08.410 TOD district and corridor Definitions and uses.
"Senior Housing" means housing designed and constructed to accommodate the needs
of seniors and includesthe following as defined in Section 187.08 Definitions independent living,
senior apartments, and assisted living facilities. Senior housing does not include nursing
facilities.
Amendment 2
Chapter 17.24 R-2, RESIDENTIAL TWO-FAMILY DISTRICT
17.24.020 Permitted uses.
The following uses and their accessory uses are permitted in the R-2 district:
A. Residential. The following residential uses are permitted subject to compliance with all the
code requirements such as lot coverage, setbacks, etc.the density standards in Section
17.24.055:
a. One-sgingle-family detached dwellings;
b. Single-family manufactured home, as defined in Section 17.08.010, and subject to the
following conditions:
I. The manufactured home shall be multi -sectional and enclose a space of not less than
one thousand square feet,
Page 2 of 24
CAP081315 Page 54
ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
ii. The manufactured home shall be placed on an excavated and back-filled foundation
and enclosed at the perimeter such that the manufactured home is located not more
than twelve inches above grade,
iii. The manufactured home shall have a pitched roof, with a minimum slope of three
feel in height for each twelve feel in width,
iv. The manufactured home shall have exterior siding and roofing which in color,
material and appearance is similar to the exterior siding and roofing material
commonly used on residential dwellings within Cenlral Point or which is comparable
to the predominant materials used on surrounding dwellings as determined by the
aty.
v. The manufactured home shall be certified by the manufacturer to have an exterior
thermal envelope meeting performance standards which reduce levels equivalent to
the performance standards required of single-family dwellings constructed under the
stale building code as defined in ORS 455.010,
A. The manufactured home shall have a garage or carport constructed of like material.
The city may require an attached or detached garage in lieu of a carport where such
is consistent with the predominant construction of dwellings in the immediately
surrounding area,
vii. In addition to the foregoing, a manufactured home and the lot upon which it is sited
shall comply with any and all development standards, architectural requirements and
minimum size requirements with which conventional single-family residential
dwellings on the same lot would be required to comply.
iag Duplex and single-family attached dwellings^i;;
dwell ag;
Amendment 3
Chapter 17.28 R-3, RESIDENTIAL MULTIPLE -FAMILY DISTRICT
17.28.020 Permitted Uses.
The following uses and their accessory uses are permitted in the R-3 district:
Page 3 of 24
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ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
C. Duplex and single-family attached dwellings;
D. Multiple -family dwellings and dwelling groups;
E. Boardinghouses and rooming houses;
F. Public schools, parochial schools, kindergartens, but not including business, dance, music, art, trade,
technical or similar schools;
Page 4 of 24
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ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
G. Public parks and recreational facilities;
H. Churches and similar religious institutions;
I. Developer's project office and sales office including mobile homes and trailers adapted to that purpose during
construction of the project only;
J. Residential facilities, as that term is defined in Oregon Revised Statutes 197.660(1); provided that the city
may require an applicant proposing to site a residential facility to supply the city with a copy of the entire
application and supporting documentation for state licensing of the facility, except for information which is
exempt from public disclosure under ORS 192.496 to 192.530;
K. Residential homes; and
L. Other uses not specified in this or any other district, if the planning commission finds them to be similar to
those listed above and compatible with other permitted uses and with the intent of the R-2 district as provided
in Section 17.60.140. (Ord. 1912(Exh. 1), 2008; Ord. 1691 §2, 1993; Ord. 1684 §36, 1993; Ord. 1615 §8, 1989
Amendment 4
Chapter 17.32. C -N, Neighborhood Commercial District
17.32.020 Permitted uses.
The following uses and their accessory uses are permitted outright, subject to compliance with all applicable
municipal, state and federal environmental, health, and safety regulations as well as the requirements for site
plans in Chapter 17_72:
A. Professional and financial offices and personal service establishments other than these r'^
^^.tea :aa4h
cars;
B. Retail stores, shops and offices supplying commodities or performing services other than vehicle and fuel
sales;
C. Eating and drinking establishments that do not possess a liquor license;
D. Desktop publishing, xerography, copy centers; I Return to Agenda
Page 5 of 24
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ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
E. Temporary tree sales, from November 1st to January 1st;
F. Public and quasi -public utility and service buildings, structures and uses;
G. Neighborhood shopping centers, which may include any of the permitted uses in this section. (Ord. 1881
(part), 2006; Ord. 1709 §1(pard, 1994).
H. Other uses not specified in this or any other district, if the planning commission finds them to be
similar to the uses listed above and compatible with other permitted uses and with the intent of the C-4
district as provided in Section 17.60.140, Authorization for similar uses
Amendment S
Chapter 17.37 C -2(M), Commercial -Medical District
17.37.020 Permitted uses.
The following uses are permitted in the C -2(M) district:
A. Professional and financial when such uses are in conjunction with health care facilities located in the
area, such as. including:
1. Hospitals;
2. Health care facilities required to be licensed by the state of Oregon;
3. Professional medical offices; and
4. Medical services, clinics and laboratories.
B. Personal services when the primary use is in conjunction with related health care facilities in the zone,
iecludingsuch as:
1. Barber and beauty shops;
2. Counseling services; and
3. Day care centers.
Page 6 of 24
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ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
C. Retail outlets, when such uses are in conjunction with health care facilities located in the area,
lecludiagsuch as:
1. Drugstore;
2. Health food;
3. Gifts, notions and variety;
4. Sit-down restaurant;
5. Delicatessen, pastry, confectionery, bakery;
6. Jewelry; and
7. Books and stationery.
D. Residential purposes, when developed tothe standards of the TOD-LMR, low mix residential district as set
forth in Chapter 17.65. (Ord. 1925 §2, 2009; Ord. 1684 §43(part), 1993).
E. Other uses not specified in this or any other district, if the planning commission finds them to be
similar to the uses listed above and compatible with other permitted uses and with the intent of the C-4
district as provided in Section 17.60.140, Authorization for similar uses
Amendment 6
Chanter 17.44 C-4 Tourist and Office -Professional District
17.44.020 Permitted uses.
The following uses are permitted in the C-4 district:
A. General professional and financial offices, including, but not limited to:
1. Banks and similar financial institutions;
2. Accounting and bookkeeping offices;
Page 7 of 24
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ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
3. Real estate offices;
4. Insurance company offices;
5. Legal services;
6. Architectural and engineering services;
7. Professional photo or art studios;
8. Counseling services;
9. Corporate or government offices;
10. Medical/dental offices;
11. Veterinary Clinics
B. Tourist and entertainment -related facilities, including but not limited to:
1. Convenience market, meat, poultry, fish and seafood sales; fruit and beverage stands;
2. Drugstores;
3. Automobile service station, automobile and recreational vehicle parts sales and repairs, and truck rentals;
4. Motel and hotel;
5. Walk-in movie theater;
6. Bowling alley;
7. Photo and art galleries;
8. Photo processing pickup station;
9. Travel agencies;
10. Barber and beauty shops;
11. Sit-down restaurants or dinner houses (including alcohol);
Page 8 of 24
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ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
12. Cocktail lounges and clubs serving alcoholic beverages;
13. Tavern with beer only;
14. Commercial parking lot;
15. Community shopping centers which may include any of the permitted uses in this section and may also
including but not limited toe the following uses:
a. Supermarkets;
b. Department stores;
c. Sporting goods;
d. Books and stationery;
e. Gifts, notions and variety;
f. Florists;
g. Leather goods and luggage;
In. Pet sales and related supplies;
i. Photographic supplies;
j. Health food;
k. Self-service laundry;
I. Antique shop;
m. Delicatessen;
n. Pastry and confectionery;
o. General apparel;
p. Shoes and boots;
Page 9 of 24
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ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
q. Specialty apparel;
r. Jewelry;
s. Clocks and watches, sales and service;
t. Bakery, retail only;
u. Bicycle shop;
v. Audio, video, electronic sales and service;
w. Printing, lithography and publishing;
16. Mobile food vendors;
18. Other uses not specified in this or any other district, if the planning commission finds them to be similarto
the uses listed above and compatible with other permitted uses and with the intent of the C-4 district as
provided in Section 17.60.140, Authorization for similar uses;
19. Large retail establishments. (Ord. 1946 (part), 2011; Ord. 1900 §2(part), 2007; Ord. 1882
(part), 2006; Ord. 1835 §1, 2003; Ord. 1823 §4(part), 2001; Ord. 1736 §2, 1996; Ord. 1727 §2,
1995; Ord. 1720 §1, 1995; Ord. 1684 §44, 1993; Ord. 1615 §37, 1989; Ord. 1511 §6, 1984; Ord.
1436 §2(part), 1981).
Amendment 7
Chapter 17.46 C-5, Thoroughfare Commercial District
17.46.020 Permitted uses.
The following uses are permitted in the C-5 district:
A. Professional and financial, including but not limited to:
1. Banks and similar financial institutions,
2. Real estate, insurance, and similar offices,
Page 30 of 24
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ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
3. Contractor's offices,
4. Medical services, clinics and laboratories;
B. Personal services, including but not limited to:
1. Self-service laundry and laundry pickup stations,
2. Photo processing pickup stations,
3. Photo processing laboratories,
4. Small appliance service,
5. Printing, lithography and publishing,
6. Locksmith,
7. Taxicab dispatch office,
8. Ambulance/emergency services,
9. Art and music schools,
10. Business/vocational schools,
11. Physical fitness/conditioning center, martial arts schools,
12. Carwash,
13. Automobile and truck service stations and repair shops,
14. Auto and furniture upholstery shops,
15. Veterinary clinics (within enclosed structure),
16. Barber shops,
17. Beauty salons,
18. Manicure salons;
Return to Agenda
Page 11 of 24
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ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
C. Retail outlets, including but not limited to:
1. Auto and truck sales (new and used),
2. Tire sales and service,
3. Glass and mirror sales and service,
4. Wallcovering, floorcovering, curtains, etc.,
5. Major appliances sales and service,
6. Hardware sales,
7. Monument sales,
8. Supermarket,
9. Convenience market,
10. Drugstore,
11. Feed, seed and fuel (within enclosed structure),
12. Electrical and plumbing supplies,
13. Heating and air-conditioning equipment,
14. Stone, tile and masonry supplies,
15. Nursery and gardening materials and supplies,
16. Antique shop,
17. Art and engineering supplies,
18. Pawnshop,
19. Sit-down restaurants, including service of beer, wine and liquor,
20. Drive-in fast food establishments,
Page 12 of 24
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ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
21. Tavern, beer sales only,
22. Public/quasi-public utilities and services,
23. Florist sales,
24. Pet sales,
25. General apparel,
26. Furniture sales, including used furniture,
27. Sporting goods sales, including firearms,
28. State -regulated package liquor stores,
29. Community shopping centers, which may include any of the permitted uses in this section
and the C-4 district,
30. Large retail establishment eighty thousand square feet or less as defined in
Section 17.08.010, Retail establishment, large;
D. Touristlrecreational-oriented uses, including but not limited to:
1. Hotel and motel,
2. Walk-in theater (fully enclosed),
3. Bowling alley,
4. Ice and roller skating rinks,
5. Dancehalls (nonalcoholic),
6. Billiard/pool hall,
7. Miniature golf,
8. Club and organizational meeting facilities;
CAP081315 Page 65
Page 13 of 24
ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
E. Commercial parking lots:
1. Recreational vehicle storage lots;
F. Light fabrication, iRml diagsuch as:
1. Light fabrication, assembly, packaging, mail-order sales and wholesale sales of consumer
goods,and
2. Light fabrication and repair shops such as blacksmith, cabinet, electric motor, heating,
machine, sheetrnetal, signs, stone monuments, upholstery and welding;
G. Other uses not specified in this or any other district, if the planning commission finds them to be similar to
the uses listed above and compatible with other permitted uses and within the intent of the C-5 district. (Ord.
1883 (part), 2006; Ord. 1736 §3, 1996; Ord. 1727 §3, 1995; Ord. 1721 §1, 1995; Ord. 1701 §1, 1994; Ord.
1698 §1, 1994; Ord. 1697 §1, 1994; Ord. 1695 §1, 1993; Ord. 1687 §1, 1993; Ord. 1684 §45, 1993; Ord. 1511
§8, 1984; Ord. 1452 §1, 1982; Ord. 1436 §2(part), 1981).
Amendment 8
17.57 FENCES
17.57.020 General regulations.
A. Fence Permits. A fence permit is required for all fences constructed within a public right-of-way, per
Section 12.20.020. Fences in the floodplain are regulated in accordance with the provisions established in
Section 8.24.260(A).
B. Building Permits. A building permit for the following structures shall be accompanied by a permit fee and a
plan review fee in an amount based on valuation per the building department fee schedule as adopted by the
city:
1. Barriers around swimming pools, as required by the 2003 State of Oregon Dwelling Specialty
Code, Chapter 41 and Appendix G; and the 1998 Oregon Structural Specialty Code, Appendix
Chapter 4;
Page 10 of 20
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ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
32. Masonry walls;
34. Retaining walls over four feet in height measured from the bottom of the footing to the top of
the wall; and
45. Retaining walls, any height, supporting a surcharge.
C. Setbacks and Design Criteria.
Page 15 of 24
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ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
Table 17.57.01
Fence Regulations
a. An encroachment fens permit is required 14for fences is-te he constructed in the public right-of-way.
a-1 A building permit is required for fencing around swimming pools, fences ever six -feet -in -height, masonry walls
and retaining walls.
*b: Forty -two -inch -high maximum fences height allowed within front yard setback area.
*c. No fencing will conflict with the sight distance requirements set by Section 17.60.110 and 17.60: ,:e
*d. Fence height will be measured from the finished grade on the side nearest the street.
Page 16 of 20
CAP081315 Page 68
R -L
R-1
R-2
R-3
C -N
C -2(M)
C-4
C-5
M-1
M-2
Maximum Fence Height
6'
6'
6'
6'
6'
6'
6'
6'
6'
6'
Fence Permit Required
a,
a-1
a,
a-1
a,
a-1
a,
a-1
a,
a-1
a,
a-1
a,
a-1
a,
a-1
a,
a-1
a,
a-1
Front Yard Setback For 6' Fence
20'
b
20'
b
20'
b
20'
b
20'
b
20'
b
20'
b
20'
b
20'
b
20'
b
Side Yard Setback
0'
0'
0'
0'
0'
0'
0'
0'
0'
0'
Rear Yard Setback
0'
0'
0'
0'
0'
0'
0'
0'
0'
0'
Comer Lot
10'
c
10'
c
10'
c
10'
c
10'
c
10'
c
10'
c
10'
c
10'
c
10'
c
Masonry Walls, Retaining Walls, Fences Over 6' in
Height
e
e
e
e
e
e
e
e
e
e
Chain I 'ink Fencing Space Emend Type Fem;mg
e
e
e
e
e
e
e
e
e
e
ences iin Floodplain or drainage easementsbacks
for Gates20'
F
20'
20'
20'
20'
20'
20'
20'
20'
20iances
f
f
f
f
f
f
f
f
f
f
a. An encroachment fens permit is required 14for fences is-te he constructed in the public right-of-way.
a-1 A building permit is required for fencing around swimming pools, fences ever six -feet -in -height, masonry walls
and retaining walls.
*b: Forty -two -inch -high maximum fences height allowed within front yard setback area.
*c. No fencing will conflict with the sight distance requirements set by Section 17.60.110 and 17.60: ,:e
*d. Fence height will be measured from the finished grade on the side nearest the street.
Page 16 of 20
CAP081315 Page 68
ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
e: See Section 8.24.260(A) for specific fence construction standards for fences located in or adjacent to a recognized
floodplain. No fence shall impede or divert the flow of water through any drainage easement unless it can be
determined that the fence will not adversely impact any property owner and will not adversely impact the
overall drainage system.
E Requests for vaAaasesexceptions to the standards in Table 17.57.01shall be made by application eei
as deg gretiel by the c ), manager and w I be 9,, awed n accordance with Chapter 17.8517.13.
Amendment 9
Chapter 17.60 General Regulations
17.60.140 Authorization for similar uses.
The planning commission may rule that a use, not specifically named in the examples of allowed uses of a
district shall be included among the allowed uses, if the use is of the same general type and is similarto the
permitted uses.
A. The planning commission in ruling upon similar uses shall find as follows:
1. That the use is closely related to listed uses in the NAICS and can be shown to exist
compatibly with those uses;
� That the se Was Rot aRt G Paged OF known to Ing St OR the effect Ve date of the Ord pence
nonetheless 6 RI aF to Perm tted Uses R 6 Ze, tFaff G, impact, appearance and other attr bmtes�
32. That the use is treated under local, state or national codes or rules in the same manner as
permitted uses. Except that these codes or rules shall not include land use or zoning
regulations; and;
43. That the use is consistent with the purpose of the district and the comprehensive plan map
and policies.
Page 17 of 24
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ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
B. The planning commission may rule upon similar uses for one or more districts either when a similar use is
proposed or at the time of amendments to the zoning text or zoning map. The city shall maintain a record of
rulings on similar uses. (Ord. 1615 §49, 1989; Ord. 1436 §2(parl 1981).
Amendment 10
Chapter 17.65 TOD DISCTRICTS AND CORRIDORS
17.65.050 Zoning Regulations —TOD Districts
Table 1
TOD District Land Uses
Use Categories
Zoning Districts
N
N
LMR
MMR
HMR
EC
GC
C
OS
Residential
Dwelling, Single -Family
N
N
N
Dwelling, Multifamily
N
N
N
Large and standard lot
Zero lot line, detached
P
P
L5
P
N
N
N
N
N
N
N
N
N
N
Attached row houses
P
P
P
C
N
N
N
Dwelling, Multifamily
N
N
N
Residential Facility
P
P
P
Multiplex, apartment
Coagjmam4Senior) housing
P
L6
P
P
P
P
Li
Li
Li
Li
N
N
N
N
Accessory Units
P1
P1
P1
C
N
N
N
Boarding/Rooming House
N
C
C
N
N
N
N
Family Care
N
N
N
Residential Facility
P
P
P
N
N
N
N
Page 18 of 24
CAP081315 Page 70
Family day care
Day care group home
Adult day care
P
C
I P P
C P
N
N
N N N
N N N
C
C
C
N
N
N
N
Home Occupation
P
P
P
P
N
N
N
Residential Facility
P
P
P
N
N
N
N
Page 18 of 24
CAP081315 Page 70
ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
Table 1
TOD District Land Uses
Use Categories
Zoning Districts
L3
LMR
MMR
HMR
EC
GC
C
OS
Residential Home
P
P
P
N
N
N
N
Commercial
Entertainment
N
N
C
P
P
N
N
Professional Office
C
L3
L3, L4
P
P
P
N
Retail Sales and Service
P
N
N
Community Services C C
C N N
P
C
Sales -oriented
C
L3
L3
P
P
N
N
Personal service-oriented
C
GL3
GL3,L4
P
P
N
N
Repair -oriented
N
N
N
P
P
N
N
Drive-through facilifies
N
N
N
P
P
N
N
Quick vehicle service
N
N
N
P
P
N
N
Vehicle sales, rental and repair
N
N N
P
P
N
N
Tourist Accommodations
Motel/hotel
Bed and breakfast inn
N
C
N C
C P
P
P
P
P
N
N
N
N
Industrial
Manufacturing
N
N
N
N
P
N
N
Industrial Service
Light
Heavy
N
N
N
N
N
N
N
N
P
C
N
N
N
N
Wholesale Sales
N
N
N
N
P
N
N
Civic
Community Services C C
C N N
P
C
Hospital C C C C N C N
Page 19 of 24
CAP081315 Page 71
ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
Table 1
TOD District Land Uses
Use Categories
Zoning Districts
LMR
MMR
HMR
EC
GC
C
OS
Public facilities
Religious assembly
Schools
Utilities
C
C
C
C C
C C
C C
C
C
N
C C N
N P N
N P L2
C
C
C
C
C
C
C
Open Space
Parks and Open Space
P
P
P
P
P
P
P
N—Not permitted.
P --Permitted use.
P1—Permitted use, one unitper lot.
C --Conditional use.
L1—Only permitted as residential units above ground floor commercial uses.
L2—School athletic and playfields only. School building and parking lots are not permitted.
L3—Permitted in existing commercial buildings or new construction with gGround floor businesses within
awith multifamily dwellings behdingabove ground floor. Maximum floor area e4for commercial use not to
exceed ten thousand square feet per tenant.
_4Secondstory offices may be permitted in areas adjacent to EC zones as a conditional use.
L5Onlypermitted as a transition between lower density zones and/or when adjacent to an environmentally sensitive
area.
_6Permittedonly when part of an existing or proposed 3mFgFegat hee,.,Ra senior housing project on abutting
property under the same ownership within the MMR or HMR district.
Section 17.65.060 — TOD Corridor, Table 4
Return to Agenda
Page 20 of 24
CAP081315 Page 72
ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
Table 4
TOD Corridor Land Uses
Use Categories
Zoning Districts
C
LMR
MMR
EC
GC
Residential
Dwelling, Single -Family
Large and standard lot
Zero lot line, detached
P L4 N N
P P N N
Attached row houses P I P N N
Dwelling, Multifamily
Multiplex, apartment
Congregate (senior) housing
P P L1 L1
L5 P Li N
Accessory Units
P1
P1
C
N
Boarding/Rooming House
N
C
N
N
Family Care
Family day care
Day care group home
P P N N
C C N N
Adult day care
C
C
N
N
Home Occupation
P
P
P
N
Residential Facility
P
P
N
N
Residential Home
P
P
N
N
Commercial
Entertainment
N
N
P
P
Professional Office
C
L3
P
P
Retail Sales and Service
Sales -oriented
Personal service-oriented
CAP081315 Page 73
C L3
P
P
C GL3
P
P
Page 21 of 24
ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
Table 4
TOD Corridor Land Uses
Use Categories
Zoning Districts
P P
LMR
MMR
EC
GC
Repair -oriented
Dnve-through facilities
Quick vehicle service
N N
P P
N N
P P
N N
P P
Vehicle sales, rental and repair N N N P
Tounst Accommodations
N
C
C
P
Motel/hotel
N
N
P
P
Bed and breakfast inn
N
C
C
P
P
N
N
N
P
Civic
Industrial
C
N
N
Manufacturing
N
N
N
P
Industrial Service
Light N N N P
Heavy
N
N
N
C
Wholesale Sales
N
N
N
P
Civic
Community Services
C C N N
Hospital C I C I C N
Public Facilities
C
C
C
C
Religious Assembly
C
C
C
N
Schools
C
C
N
N
Utilities C C C C
Open Space
Parks and Open Space P P P P
N—Not permitted.
Page 22 of 24
CAP081315 Page 74
ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
P --Permitted use.
P1—Permitted use, one unitper lot.
C --Conditional use.
L1—Only permitted as residential units above ground floor commercial uses.
L2—School athletic and playfields only. School building and parking lots are not permitted.
L3—Permitted in existing commercial buildings or new construction with gGround floor business within a
multifamily dwellings aboveground flooreeilding. Maximum floor area for commercial uses not to exceed e4 -len
thousand square feet per tenant.
L4Onlypermitted as a transition between adjacent lower density zones and/or when adjacent to an environmentally
sensitive area.
L5Permittedonly when part of an existing or proposed seniorcewgregate housing project on abutting property under
the same ownership within the MMR or HMR district.
Amendment 11
Chapter 17.75 Design and Development Standards
17.75.039 Off-street parking design and development standards.
All off-street vehicular parking spaces shall be improved to the following standards:
A. Connectivity. Parking lots for new development shall be designed to provide vehicular and pedestrian
connections to adjacent sites unless as a result of any of the following such connections are not possible:
1. Topographic constraints;
2. Existing development pattems on abutting property which preclude a logical connection;
3. Traffic safety concems; or
4. Protection of significant natural resources.
Page 23 of 24
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ATTACHMENT "A —draft Code Amendments
Official document will be presented at the meeting"
B. Parking Stall Minimum Dimensions. Standard parking spaces shall conform to the following standards and
the dimensions in Figure 17.75.03 and Table 17.75.02.. provided that compact parking spaces permitted in
accordance with Section 17.64.040(G), shall have the following minimum dimensions:
1. Width—Shall be as provided in Column "B" in Table 17.75.02;
Length -Shall reduce column "C" in the table 17.75.02 by no more than three (3) feet.
PASSED by the Council and signed by me in authentication of its passage this day of August 2015.
Mayor Hank Williams
ATTEST:
City Recorder
Return to A enda
Page 20 of 20
CAP081315 Page 76
Business
Discussion regarding
Beekeeping in the
City Limits
CAP081315 Page 77
INTEROFFICE MEMO
CENTRAL
POINT
TO: Honorable Mayor and City Councilors
FROM: Stephanie Holtey, Community Planner
Tom Humphrey, Community Development Director
DATE: August 13, 2015
RE: Bee Ordinance Discussion Item
Planning Department
Tom Humphrey, AIC P,
Community Development Director/
Assistant City Administrator
The City has received citizen requests to allow beekeeping within the city limits, a practice that is
currently prohibited in Section 8.094.090 of the Municipal Code. In response, staff has prepared a
provisional ordinance for discussion purposes based upon research of beekeeping requirements in the
cities of Medford and Ashland (Attachment "A"). Both communities have enacted code amendments to
allow urban beekeeping subject to limitations including but not limited to:
• Number of hives permitted, • Maintenance provisions, and;
• Locational factors, • Registration requirements.
• Equipment requirements,
A summary of the Medford and Ashland Beekeeping ordinance adoption and current status is attached
for your reference (Attachment "B").
Information regarding this discussion item has been posted on the City's website to solicit public input
on the matter. An update on any comments received will be presented at the City Council meeting.
The Governor is currently considering House Bill 2653. If signed into law, the State Department of
Agriculture will establish best practices for beekeeping in residential areas, including recommended
approaches for conflict management arising from beekeeping in residential areas. Based on our review
of the legislation, the only mandate is for local governments to evaluate existing ordinances and
determine whether to adopt new ordinances related to residential beekeeping within three years. If
Council directs staff to initiate code amendments at this time, the proposed amendments would be
prepared to satisfy any new requirements set forth by State law.
Based on information available at this time, staff is requesting direction from Council whether to initiate
code amendments to permit beekeeping in the city limits.
Enclosure
Return to Agenda
CAP081315 Page 78
ATTACHMENT "B"
Beekeeping Fact Sheet
Summary of Medford & Ashland Programs
City of Medford
Ordinance Enacted: May 2015 (help://www.ci.medford.or.us/Page.asn'?NavID=3415)
Citv Council & Citizen Concerns: Most concerns were relative to allergies and being stung by bees. Other concerns
included the need to minimize/avoid creation of nuisance and decreased livability through property care and maintenance
(i.e. continuous water source and keeping bee hives outside of required setback areas.
Registration Process: Form submission, including self -certified compliance. Registrations are maintained in a file and
mapped in the GIS for code enforcement and public information purposes. There is no fee required to register.
Summarv: The ordinance to allow beekeeping was strongly supported by members of the public that took the time
to submit written colrnments. According to the Planning Department, 70 public comments were received with 95% in
favor of beekeeping code amendments. The final vote at the City Council was split with the Mayor voting to break the tie
in favor of beekeeping.
Since the ordinance was enacted, three property owners have registered their hives and one complaint has been received.
The nature of the complaint is not known at this time. A copy of the Medford Bee Registry form is attached.
City of Ashland
Ordinance Enacted: August2013(http:/www.ashland.or.us/Page.asp'?NavID=15974)
Citv Council & Citizen Concerns: There was strong opposition and support of urban beekeeping. Most concerns
were relative to allergies and being stung by bees.
Registration Process: Online registration, including self -certification of compliance. Submissions are automatically
mapped on the City's website for public information purposes. The City follows -up with a letter acknowledging
registration and self -certification.
Summarv: In response to strong opposition expressed by citizens, the City prepared two iterations of the beekeeping
ordinance.
A more restrictive version would have required notification of surrounding property owners prior to approval.
The application would be denied if any resident or property in the notification area could provide a letter from a
physician stating that any person residing on the premises has an allergy to bee stings.
A less restrictive ordinance was adopted because beekeeping experts testified that the riskof being stung by a
beehive next door is no greater than a bee from a hive located a mile away. The reason for this is that bees roam
1-2 miles in any given day.
Since adoption, the only complaints received have been to report un -registered hives or registered hives without flyway
barriers (see note below). No complaints have been received due to aggressive bee behavior, including stings.
Note: Tlvwav barriers cause bees to fly up at [east iifeet. Thas secs their trajectory and lnfinn7_es unpacis to adjacent
property owners.
CAP081315 Page 79
ATTAC H M E NT "A"
ORDINANCE NO.
AN ORDINANCE ADDING CHAPTER 6.07 AND AMENDING SECTION 6.06.020 AND
8.04.090 TO ALLOW BEEKEEPING WITHIN THE CITY LIMITS
RECITALS:
A. The City Wide Strategic Plan recognizes the importance of agriculture to the City's
economy both past and future. Maintaining opportunities for small scale agriculture
is identified as a strategy for protecting agricultural land and managing growth.
B. Small scale urban agriculture, including beekeeping, provides opportunities for
residents to continue the tradition of producing locally grown food products while
supporting the presence and health of local honeybee populations.
C. It is the purpose and intent of this ordinance to provide for the safe and orderly
keeping of bees in the City of Central Point by establishing certain minimum
standards for the keeping of bees to protect the public health, safety and welfare of
the residents of the City of Central Point.
D. Words jrno^ throug in the following ordinance are to be deleted and words in bold
are added.
The City of Central Point resolves:
Section 1. To amend Section 6.06.020 as follows:
6.06.020 Exemptions.
A. Notwithstanding any restrictions or prohibitions of this chapter, animals of any kind and
any number may be kept by a school, museum or zoo for educational purposes; or the
exhibition for amusement purposes, temporarily, by a circus, carnival, or other exhibition
licensed in accordance with the applicable city ordinance. All rules as to sanitation and
humane treatment contained in this title shall govern the keeping of the animals and
maintenance of the premises or buildings where such animals are kept.
B. Police service dogs, while in the exercise of their law enforcement duties, are exempt
from any restrictions or prohibitions of this title.
C. Bee keeping established and operated in accordance with the provisions of
Chapter 6.07 are exempt from the prohibitions of this title.
D. S Any prohibited animal in the possession of an owner or custodian at the time the
owner or custodian's real property is annexed into the city limits of Central Point may be
kept as a nonconforming use provided the owner or custodian registers the animal(s)
CAP081315 Page 80
with the code enforcement officer. The animal(s) may be kept until such time as the
owner chooses to remove them from the property. No animal so described may then be
replaced by another animal. (Ord. 1901 §2(part), 2007).
Section 2. To add Chapter 6.07 "Bee Keeping" as follows:
Chapter 6.07
BEE KEEPING
6.07.010 Definitions
6.07.020 Bee Keeping
6.07.010 Definitions
"Apiary" and "apiary property" includes bees, honey, beeswax, bee comb, hives, frames
and other equipment, appliances and material used in connection with an apiary.
"Bees" means honey -producing insects of the genus Apis and includes the adults, eggs,
larvae, pupae or other immature stages thereof, together with such materials as are
deposited into hives by their adults, except honey and beeswax in rendered form.
"Beekeeper" includes any individual, partnership, association or corporation, but does
not include any common carrierwhen engaged in the business of transporting bees,
hives, appliances, bee cages or other commodities which are the subject of this chapter,
in the regular course of business.
"Colony" or "colonies of bees" refers to any hive occupied by bees.
"Disease" means pests, diseases or any condition affecting bees or their brood
"Hive" means any receptacle or container made or prepared for use of bees, or box or
similar container taken possession of by bees.
"Honeycomb" means a mass of hexagonal wax cells built by bees to contain their brood
and stores of honey.
6.07.020 Bee Keeping
The keeping or maintaining of bees, colonies of bees, hives, honeycombs, or containers
of any kind of character wherein bees are hived is subject to the following:
A. Registration with the city is required prior to establishing any hive or other
beekeeping activity on any lot or parcel within the city limits and the Director of
Community Development shall provide a beekeeping application and registration
process.
CAP081315 Page 81
B. Number of Hives Permitted
1. A maximum of three (3) bee hives shall be kept or maintained on a lot or parcel
less than one acre in size.
2. A maximum of six (6) hives shall be kept or maintained on a lot or parcel
greater than one acre in size.
3. A beekeeper who owns five or more hives is required by the state to register
them with the Oregon Department of Agriculture.
C. Hives shall be -kept -in -hives -with -consist of removable frames, which shall be kept
in sound and usable condition.
D. Hives shall not be placed within a required front, side or rear yard setback area.
E. In each instance where a hive is kept less than twenty five (25) feet from a
property line, a flyway barrier at least six (6) feet in height shall be maintained
parallel to the property line for a minimum of ten (10) feet in either direction from
the hive The flyway barrier may consist of a wall, fence, dense vegetation or a
combination there of, such that bees will fly over rather than through the material
to reach the colony.
F. A constant supply of fresh water shall be provided for the colonies on site within
fifteen (15) feet of each hive.
G. Each beekeeper shall ensure that no wax comb or other material that might
encourage robbing by other bees are left upon the grounds of the property. Such
materials once removed from the site shall be handled and stored in sealed
containers or placed within a building or other insect proof container.
H. The sale of surplus honey or bee's wax produced on site shall be permitted on the
property where the keeping of bees is permitted per applicable business license
and/or home occupation regulations. However, outdoor sales are prohibited.
I. Only docile common honey bees shall be permitted. African bees or any hybrid
thereof are prohibited.
J. A beekeeper shall immediately replace the queen in a hive that exhibits
aggressive characteristics, including stinging or attempting to sting without
provocation.
Section 3. To amend Section 8.04.090 Keeping bee's as follows:
8.04.090 Keeping bees.
CAP081315 Page 82
A. No person shall have, keep or maintain or permit to be kept or maintained upon land
under his control, any hives, swarms or colonies of bees, except as permitted in
accordance with the Bee Keeping requirements in Section 6.07.020.
B. A violation of Section 6.07.020 is declared to be a public nuisance, and may be
abated as provided for in this Chapter. ThG keep Rg OF Me ate R Rg Of aR ' h ves
colon as or swarms of bees s declared to const tute a pub! G nu sargoe and may be
abated apFav 'd ed 'n the chapter (OFF 817 TSR 1966)
Return to A endo
CAP081315 Page 83
Business
2015 Street
Inlay/ Preservation
Project Bid
CAP081315 Page 84
A
CENTRAL
POINT
PARKS & PUBLIC WORKS DEPARTMENT Matt Somitore, Director
140 South 3rtl Street Central Point, OR 97502 (S41) 664-7602 www.centra l pointoregon.gov
STAFF REPORT
August 6, 2015
AGENDA ITEM: Business item approving low bid for 2015 street inlay/street preservation
projects.
STAFFSOURCE:
Matt Samitore, Director
BACKGROUND/SYNOPSIS:
The Parks & Public Works Department has prepared a bid for pavement preservation for asphalt
removal and inlay. The base bid for the package includes the remainder of S. Front, S. Haskell and
S. Penninger.
FISCAL IMPACT:
The items are budgeted for the in the 2015/2017 FY Budget.
ATTACHMENTS:
The bid opening is occurring at 2:00 on the 103h of July. Staff will bring the bid results to the
Council meeting. As of the date of this report only Knife River, Inc. has expressed interest on
paving.
RECOMMENDATION:
Staff recommends approving the low bid.
PUBLIC HEARING REQUIRED:
No
SUGGESTED MOTION:
I move to approve the low bidder of in the amount of $ for the 2015/2017 pavement
preservation project.
Return to A endo
CAP081315 Page 85
Business
Battle of the Bones
2015 Report
CAP081315 Page 86
CENTRAL Finance Department
Staff Report POINT Be, Adams, Finance Director
To: Mayor&Council
From: Bev Adams, Finance Director
Matt Samitore, Parks & Public Works Director
Date: August 13, 2015
Subject: 2oi5 Battle of the Bones Report
Background:
On June 26`h & 27`h the City's Parks and Recreation division held the annual Battle of the Bones event. Total profit
from the 2oi5 BOB event is s3,86o.go.
Accounting changes: Last yearfollowing the BOB annual reportto the Council, there was discussion regarding
employee overtime costs thatwere included in the accounting forthis event. Because there are no employees costs
tracked or accounted for in other City supported events, Parks & Recreation staff requested that employee costs be
removed from the accounting forthis eventas well. Per this discussion and Council/ Administrative direction, Finance
has not included any employee costs in the accounting forthe 2015 event. Furthermore, in order to provide a
consistent and comparative accounting through all the years of the event, the employee costs have been removed -
causing a significant change in the annual recap.
The event: Forthe second year, the event was held Fridayevening from p pm to g pm; and all day Saturday; a change
from prioryearswhen the eventwasalso held on Sunday.
Overall the event planning, organization and clean up was exceptional. We had over 25 teams participate and the
response was the barbeque teams and general public was exce Ile nt. That being said there was a direct correlation with
heat and attendance. As the heat index increased the event attendance went down. We experienced about a 3o%
drop in attendance on both Fridayand Saturday evenings. We believe that was directly related to the heat being
around io5° each day.
Attached to this staff report is the financial recap for the 2oi5 event .
Staff recommends a s3,800 donation to the Parks & Recreation Foundation from the proceeds.
Recommended Action:
That Council review and accept by motion the Battle of the Bones financial recap and approve an amount to be
donated to the Parks & Recreation Foundation from the proceeds of the event.
CAP081315 Page 87
2015 Battle of the Bones Recap
Final Accounting -July 31, 2015
Direct City
Revenues Amount Costs
Battle
of the
Bones Revenues
(830-00-00-4811)
64,450.23
Battle
of the
Bones Revenues
(S1D-00-00-4811)(Rec'd in July/2015 YE accrual)
25,613.83
Total Revenue
90,064.06
Expenses Amount
BOB Expenses (Acct 810-40-53-6411)
BOB Musicians (Acct 810-40-53-6412)
Refund of BOB ticket (July 2016/2015 YE accrual)
81,193.44
5,ODD.00
9.72
Total Expenses 86,203.16
Event Net Profit (Loss) $ 3,860.90 3,860.90
'Donation made to Parks & Recreation Foundation
'Cost to City: $ 3,860.90 3,860.90
'(No Employee costs included)
Return to Agenda
CAP081315 Page 88
Business
HB 3400 Legal
Briefing
CAP081315 Page 89
A
CENTRAL
POINT
ADMINISTRATION DEPARTMENT
190 SouLh 3^- SLreeL I CerLrel Po, L, OR 97502 1 (591) 669-7602
STAFF REPORT
August 13, 2015
AGENDA ITEM: A discussion of the impacts of HB 3400 on City's current ordinances and
marijuana tax.
STAFF SOURCE:
Sydnee Dreyer, City Attorney
BACKGROUND:
In response to the OMMA and M91, in 2014 the City adopted Ordinance No. 1982 adding
Section 5.40 to the CPMC providing for the issuance of business licenses to owners of
Dispensaries, subject to the issuance of a conditional use permit In 2014, the City adopted
a temporary moratorium on dispensaries, which expired May 1, 2015. To date no
applications have been received. Additionally in 2014 the City adopted Ordinance No.
providing for a tax on medical and commercial recreational marijuana sales. Lastly, the
City adopted Ordinance No. 2007 adding Section 8.45 to the CPMC providing that all
medical and recreational marijuana grows must be conducted indoors.
Effective June 30, 2015, the legislature adopted HE 3400 that amended the Oregon Medical
Marijuana Act ("OMMA") and Measure 91 ("M91"). Additionally the legislature adopted SB
460 authorizing early sales of commercial marijuana by medical marijuana dispensaries.
As a result of such legislation, the City must consider the implications on its existing
ordinances and future regulation of such uses.
FISCAL IMPACTS:
Potential tax revenues from marijuana sales.
DISCUSSION:
Commercial Sales From Dispensaries:
➢SB 460 permits dispensaries to dispense small quantities of recreational marijuana
beginning October 1, 2015.
➢This right of dispensaries to sell recreational marijuana expires December 1, 2016.
➢Cities can opt out by adopting an ordinance prohibiting dispensaries from selling
recreational marijuana.
➢Though the City could adopt such an ordinance, at present no dispensaries exist and
no applications for such use have been received.
Pace 1 of 3
CAP081315 Page 90
Prohibition of Commercial production, processing, wholesale, retail and medical
marijuana dispensaries and processing sites.
➢ City could prohibit any or all of the foregoing uses by adopting an ordinance
referring the question as to whether to prohibit such uses to its constituents at the
next statewide general election in November 2016.
➢ If adopted, City would not be entitled to any of the tax revenue from marijuana sales
after July 1, 2017 (prior to July 1, 2017 state tax revenue distributed
proportionately based on population; after July 1 it's based on the number of
licensees in the City).
➢ 53% of City's constituents voted in favor of M91 so it is questionable whether such a
referendum would pass.
➢ If a dispensary or medical marijuana processing site were registered with the OHA
and received conditional use permit from City prior to said election, that site would
be grandfathered and exempt from the city-wide prohibition.
➢ Prohibition has no effect on recreational personal grows of marijuana.
Reasonable Time Place Manner Ordinances:
➢ HB 3400 confirms local government's right to adopt reasonable time place manner
restrictions on commercial and medical uses.
➢ State law currently prohibits medical and commercial marijuana processors,
commercial retail stores, and medical marijuana dispensaries in residential zones;
dispensaries and retail stores within 1000 feet of certain public and private schools
(unless the school is established after the business is approved); dispensaries within
1000 feet of another dispensary; and dispensaries located at a grow site.
➢ Recreational grows are not included in the list of reasonable TPM restrictions;
however, HB 3400 would continue to permit local ordinances that are not
inconsistent with the OMMA; M91; and HB 3400.
➢ City currently has reasonable time place manner ordinances for dispensaries, and
medical and recreational grows. No change is recommended at this time for such
uses.
➢ City should consider reasonable time place manner regulations on commercially
licensed use which become legal January 1, 2016.
Local Option Tax:
Local taxes are prohibited except as follows: the City may refer to the electors
whether to adopt a tax or fee on commercial retail licenses.
➢ The tax or fee may not exceed 3%.
➢ The tax or fee may not be imposed on medical marijuana sales.
Pore 2 oL 3
CAP981315 Page 91
➢ City's current ordinance likely not valid. City must adopt new ordinance referring
the question to the voters in order to adopt a tax.
➢ This would be considered at the next state-wide general election in this case
November 2016.
➢ Staff recommends the City retain a higher ceiling in the event state law changes.
Though this might be stricken, it would allow the City to potentially raise the tax
rate without the need for further referendum.
Limits on Number of Medical Marijuana Plants:
➢ Currently state law allows a caregiver to grow up to 6 plants for each cardholder; up
to 4 cardholders per caregiver.
➢ At a particular site, multiple caregivers can grow thus creating the possibility of
large medical grow sites.
➢ HB 3400 adopted new restrictions as follows:
o Limits in Residential Zones: The new limit for a cardholder located within a
residential zone is as follows: maximum 12 plants regardless of the number
of cards unless such cardholder was growing more than 12 plants on
December 31, 2014, such individual can continue to grow that number of
plants, but in no case to exceed 24 plants.
o Limits in all other Zones: Limited to no more than 48 plants per address.
However, if a person was growing more than 48 -plants on December 31,
2014, such individual can continue to grow that number but in no case to
exceed 96 -plants.
o Other Limits: If OHA suspends or revokes a registration for a person
responsible for a grow site, then any subsequently produced plants cannot
exceed 12 in a residential zone or 48 in other zones.
o Confiscation: If law enforcement determines that marijuana is being grown
in excess of these provisions, only those plants in excess of the number of
mature plants permitted may be confiscated.
ATTACHMENTS:
Attachment "A" Council Briefing from City Attorney; Attachment"B" LOC Summary
regarding marijuana legislation; Attachment "C" Memorandum from Beery Elsner &
Hammond, LLP regarding marijuana legislation.
RECOMMENDATION:
Direct Staff to Prepare an Ordinance referring to the electors the question of whether to
adopt a tax of 3% to be considered at the next state-wide general election; or Direct Staff to
Prepare and Ordinance Repealing Ordinance No. _ imposing a tax on medical and
recreational marijuana.
Return to Agenda
Pore 3 of 3
CAP081315 Page 92
TO: Central Point City Council
c/o Chris Clavton
FROM: Svdnee Drever
RE: Legislative Update — HB 3400
Regulation of Medical and Recreational Marijuana
DATE: July 13, 2015
House Bill 3400, Amending Measure 91 (M91) and the Oregon Medical Marijuana Act
(OMMA) was adopted on June 30, 2015. The purpose of this memo is to outline those
amendments as they relate to the City's ability to regulate, prohibit or tax such uses. HB 3400
also contains provisions relating to criminal penalties, testing, labeling, etc. which are beyond the
scope of this opinion.
A. Timing
As the Council is aware, personal recreational growth of marijuana was legalized effective July
1, 2015. Under M91, licensed recreational facilities consisting of production (growth,
harvesting); processing (compounding, converting), wholesale, and retail sales become legal
January 4, 2016.
However, SB 460 (as of July 7 has not been signed by the governor) will allow registered
medical marijuana dispensaries to sell limited quantities of recreational marijuana as of October
1, 2015. Such sales do not include extracts, edibles etc., and quantities are limited These
provisions expire December 31, 2016, at which time presumably dispensaries will be limited to
medical sales. However, if signed by the governor, the City may adopt an ordinance prohibiting
retail sales from dispensaries.
B. Prohibition
HB 3400 provides some opportunity for cities to prohibit all licensed recreational marijuana
facilities (production, processing, wholesale, and retail) as well as dispensaries and medical
processing sites either by ordinance, if the city had 55% or more votes against M91, or by
referendum if fewer than 55% of the constituents voted no. For qualifying cities with a no vote
CAP081315 Page 93
of 55% and above, such an ordinance must be adopted within 180 -days of the effective date of
this legislation, which will be December 27, 2015.
With respect to Central Point, 47% of its constituents voted against M91; thus the abbreviated
route is not available to the City. Rather to prohibit such uses, the City would need to adopt an
ordinance prohibiting any or all of the foregoing uses and refer the question to the electors of the
City, for approval at the next statewide general election following adoption of such ordinance.
The City would also be required to provide notice of such ordinance to OHA and/or the OLCC
and upon receiving notice of the prohibition said agencies would cease issuing
registration/licensing within the City. However, any dispensary or medical processing site that
was registered with OHA and had successfully completed a city land use process prior to the
adoption of the ordinance would be exempt from such prohibition.
In addition to referring the question, M91 allows constituents to submit a petition to the City to
call an election on whether licensed premises should be prohibited within City limits.
NOTE: Personal recreational growth of marijuana (up to 4 plants, and 8 oz. of usable marijuana)
cannot be prohibited.
C. Reasonable Time Place Manner Regulations
HB 3400 provides greater clarification as to what constitutes a reasonable time place manner
ordinance. HB 3400 clarifies that local government is preempted from regulating marijuana
except as provided therein.
The following are listed as reasonable regulations of marijuana. Reasonable conditions on the
manner in which:
➢ licensed growers produce marijuana (growth);
➢ licensed processors process marijuana;
➢ licensed wholesalers sell marijuana;
➢ license retailers sell marijuana;
➢ the public accesses licensed premises;
➢ licensed business can be located (i.e. zoning);
➢ a licensed business operates such as hours of operation, proximity to other uses (except
that no requirement may be adopted that requires such uses to be more than 1000 feet
apart from one another);
➢ a medical grow site, medical processing site or dispensary may be located;
➢ the public accesses a medical marijuana grow site;
➢ hours of operation for a medical grow site;
➢ transfers of medical marijuana are made at a processing site or dispensary; and
➢ a medical grow site, processing site or dispensary is operated.
It is interesting to note that while this is an open-ended list of reasonable regulations, it does not
address the right of a City to regulate the manner in which a personal recreational grow takes
place. While the statute makes clear that it is intended to supersede and replace any municipal
CAP081315 Page 94
charter amendment or local ordinance inconsistent with sections 3-70 the City's ordinance
regulating personal grows in the City is arguably consistent with HB 3400, in that it allows such
grows to occur in all zones and does not limit the amount of marijuana grown or possessed. It
simply requires indoor grows, which should continue to be a reasonable time place manner
restriction.
D. Local Option Tax
HB 3400 settles the question of a local government tax on marijuana growth and sales. All such
local taxes are prohibited except in the following instance: the City may adopt an ordinance to be
referred to the electors as to whether to adopt a tax or fee. However the tax or fee may not
exceed 3%. Though this is referred to the electors, it may not be included in an ordinance
referring the question as to whether to prohibit such uses. Rather these must be submitted as
separate questions to the electors.
E. Land Use
HB 3400 also requires cities to issue a land use compatibility statement within 21 -days of either:
receipt of the LUCS request; or final local permit approval if the use is a conditional use. The
LUCS is a requirement for registration/licensing. Issuance of the LUCS is not a land use
decision.
F. Medical Grow Site Limits
The last major amendment involves a limit on the number of plants at certain grow sites. While
the provision is lengthy, a brief summary is provided below. Law enforcement will need to be
well trained as to these issues in order to effectively enforce upon receipt of a complaint.
In general each cardholder may grow 6 plants and each caregiver growing for a cardholder may
grow for 4 cardholders. Thus a single caregiver could grow 24 -plants. Multiple caregivers can
grow significantly more on a site.
Limits in Residential Zones of Cities: The new limit for a cardholder located within a
residential zone of a City is as follows: maximum 12 plants regardless of the number of cards.
However, if such cardholder was growing more than 12 plants on December 31, 2014, such
individual can continue to grow that number of plants, but in no case to exceed 24 plants.
Limits in all other City Zones: Limited to no more than 48 plants per address. However,
if a person was growing more than 48 -plants on December 31, 2014, such individual can
continue to grow that number but in no case to exceed 96 -plants.
Other Limits: If OHA suspends or revokes a registration for a person responsible for a
grow site, then any subsequently produced plants cannot exceed 12 in a residential zone or 48 in
other zones.
CAP081315 Page 95
Confiscation: If law enforcement determines that marijuana is being grown in excess of
these provisions, only those plants in excess of the number of mature plants permitted may be
confiscated.
G. Next Steps
The City currently has the following marijuana -related ordinances:
1) Time place manner restrictions on dispensaries. There does not appear to be anything in
this new legislation that would require amendments to the City's dispensary ordinance;
2) Grow Site Ordinance. This ordinance requires personal and medical grows to be
conducted indoors. As discussed above, arguments can be made that this is a reasonable
regulation consistent with HB 3400 and need not be amended at this time; and
3) Local Option Tax. As discussed above, the legislature clarified that cities may not adopt
a local option tax unless a) it is referred to the voters; and b) it does not exceed 3%. At
present the City's ordinance has a ceiling higher than 3%. The City Manager will likely
recommend to Council that the City retain a ceiling higher than 3% to allow flexibility
for the future, and refer to the electors the question of imposing a tax of 3%. To protect
the City we would want to have language that if any component of the ordinance is
deemed illegal, it will be stricken and read as if that section had been deleted. That
should be an adequate means to deal with a higher ceiling.
Prohibition? The City currently does not prohibit such uses. To do so the City would be
required to refer the question to the voters. However, in doing so the City would not be able to
share in any state revenues from marijuana. Thus the Council should weigh whether to propose
prohibiting some or all of the licensed and registered uses or to allow such uses subject to
reasonable regulation and in doing so be permitted to take a share of the state's tax revenues.
CAP081315 Page 96
2015 Marijuana Legislation: What Local Governments Need to Know
Bills
• HB 3400: Omnibus bill that amended the Oregon Medical Marijuana Act and the Measure 91
• HB 2041: Revised the state tax structure for commercial marijuana
• SB 460: Authorized early sales of commercial marijuana by medical marijuana dispensaries
• SB 844: Miscellaneous provisions
Home Rule
Home rule is the power of a local government to set up its own system of governance and gives that
local government the authority to adopt ordinances without having to obtain permission from the state.
City governments in Oregon derive home rule authority through the voters' adoption of a home rule
charter as provided for in the Oregon Constitution. A home rule charter operates like a state
constitution in that itvests all government power in the governing body of a municipality, except as
expressly stated in that charter, or preempted by state or federal law. Where the Legislature's intent to
preempt local governments is not express and where the local and state law can operate concurrently,
there is no preemption. As a result, generally a negative inference that can be drawn from a statute is
insufficient to preempt a local government's home rule authority.
Although this document summarizes the provisions of HB 3400A, cities may be able to impose
regulations in addition to those authorized under HB 3400A under their home rule authority.
Local Government Ban
(effective lune 30, 2015)
What Cities Can Ban (HB 3400A §§ 133(2), 134(1))
There are 7 types of marijuana activities regulated under HB 3400A. Cities can ban any of the following
6 marijuana activities:
• Medical marijuana processors (preparing edibles, skin and hair products, concentrates, and
extracts)
• Medical marijuana dispensaries
• Commercial marijuana processors (preparing edibles, skin and hair products, concentrates, and
extracts)
• Commercial marijuana producers (growers)
• Commercial marijuana wholesalers
• Commercial marijuana retailers
Cities cannot ban medical marijuana grow sites. However, the law places limits on the number of plants
and the amount of marijuana that can be located at any one medical marijuana grow site (HB 3400A §§
82, 82a):
o General Rule: 12 mature plants per grow site in residential zones; 48 mature plants per
grow site in all other zones
CAP081315 Page 97
Grandfathering: If all growers at the site had registered with the state by January 1,
2015, the grow site is limited to the number of plants at the grow site as of December
31, 2015, not to exceed 24 mature plants per grow site in residential zones and 96
mature plants per grow site in other zones
Usable marijuana: A grower may possess the amount of usable marijuana harvested
from the plants not to exceed 12 pounds per plant for outdoor grow sites and 6 pounds
per plant for indoor grow sites.
How Cities Can Ban
Under HB 3400A, there are two avenues for cities to ban marijuana activities, but one of those avenues
is available only to certain cities and only during a limited time period.
Option 1: Vater Referral (HB 34O0A § 134)
All cities have the option of banning any of the marijuana activities listed above through the following
voter referral process:
• The city council adopts an ordinance that prohibits any of the 6 marijuana activities listed above.
• The city council provides the text of the ordinance to the Oregon Health Authority (if prohibiting
medical marijuana activities) and/or the Oregon Liquor Control Commission (if prohibiting
commercial marijuana activities).
• The OHA and OLCC will stop registering and licensing the prohibited activities until the next
statewide general election.
• The city council refers the ordinance to the voters at a statewide general election(November
elections in even -numbered years).
Option 2: Ban Adopted by the City Council (HB 3400A § 133)
• A city council can adopt a ban on any of the 6 marijuana activities listed above by enacting an
ordinance only if the following conditions are met:
o The city is located in Baker, Crook, Gilliam, Grant, Harney, Jefferson, Klamath, Lake,
Malheur, Morrow, Sherman, Umatilla, Union, Wallowa, or Wheeler County;' AND
o The city council adopts the ordinance by December 24, 2015 (180 days after the
effective date of the legislation)
• The city council must provide the text of the ordinance to the Oregon Health Authority (if
prohibiting medical marijuana activities) and/or the Oregon Liquor Control Commission (if
prohibiting commercial marijuana activities).
• The OHA and OLCC will stop registering and licensing the prohibited activities.
Effect on Existing Medical Marijuana Processors & Dispensaries (HB 3400 §§ 133(6), (7), 134(6), (7), 135)
• Dispensaries registered with the state by the time the city adopts a prohibition ordinance, or
that had applied to be registered by July 1, 2015, are not subject to the prohibition if they have
successfully completed a city or county land use application process.
' HB 3400A allows a city council ban for cities located in counties that voted against Measure 91 by 55
percent or more.
CAP081315 Page 98
• Medical marijuana processors registered with the state by the time the city adopts the
prohibition ordinance are not subject to the prohibition if they have successfully completed a
city or county land use application process.
Tax Implications (HB 3400A §§ 133(5), 134(5); HB 2041 §14(4))
• Local Tax: A city that adopts an ordinance prohibiting marijuana activities in itsjurisdiction may
not impose a local tax on marijuana. (HB 3400A §§ 133(5), 134(5))
• State Tax: A city that adopts an ordinance prohibiting marijuana activities is not eligible to
receive state marijuana tax revenues from the 17 percent state tax imposed on commercial
sales of marijuana. (HB 2041 § 14(4))
o Collectively, cities will receive 10% of the state marijuana tax revenues, distributed as
follows to cities that do not prohibit marijuana activities (HB 2041 § 14(2)):
• Before July 1, 2017, distributed proportionately based on population
• After July 1, 2017, distributed based on the number of licensees in the city, with
50 percent distributed based on the number of producer, processor, and
wholesale licensees and 50 percent distributed based on the number of retail
licensees
Local Government Tax (HB 3400A § 34a)
(effective June 30, 2015)
What Cities Can Tax
Under HB 3400A, cities may impose up to a 3 percent tax on sales made by those with commercial retail
licenses.
How Cities Can Impose a Tax
Cities may adopt an ordinance imposing the tax, but it must be referred to the voters at the next
statewide general election (meaning a November election in an even -numbered year). However, cities
may not impose a local tax if they have prohibited marijuana activities through a local ban.
Time, Place, and Manner Restrictions
(medical provisions operative March 1, 2016; commercial provisions operative January 1, 2016)`
State Law Restrictions
• Medical and Commercial Marijuana Processors: Cannot locate in residential zones if processing
marijuana extracts. (HB 3400 §§ 14(2)(c), 85(3)(a))
• Medical Marijuana Dispensaries and Commercial Retail Stores
o Cannot locate in residential zones (HB 3400 §§ 16, 86)
o Cannot locate within 1000 feet of certain public and private schools, unless the school is
established after the marijuana facility (HB 3400 §§ 16, 17, 86, 86a)
' Although these provisions do not take effect immediately, some of these provisions are already part of
existing state law. Cities should consult their city attorneywhen enacting time, place, and manner
restrictions.
CAP081315 Page 99
o Medical marijuana dispensaries cannot locate within 1000 feet of another dispensary
(HB 3400A § 86)
o Medical marijuana dispensaries cannot locate at a grow site (HB 3400A § 86)
• Compliance with Zoning Requirements (HB 3400A § 34(4)): Before issuing any license, the OLCC
must request a statement from the city that the requested license is for a location where the
proposed use of the land is a permitted or conditional use. If the proposed use is prohibited in
the zone, the OLCC may not issue a license. A city has 21 days to act on the OLCC's request, but
when that 21 days starts to run varies:
o If the use is allowed as an outright permitted use, 21 days from receipt of the request
o If the use is a conditional use, 21 days from the final local permit approval.
What Cities Can Regulate (HB 3400A §§ 33, 89)
Although the League believes that the Legislature has not foreclosed other regulatory options, HB 3400A
expressly provides that cities may impose reasonable regulations on the following:
• The hours of operation of retail licensees and medical marijuana grow sites, processing sites,
and dispensaries
• The location of all 4 types of commercial licensees, as well as medical marijuana grow sites,
processing sites, and dispensaries, except that a city may not impose more than a 1,000 foot
buffer between retail licensees
• The manner of operation of all 4 types of commercial licensees, as well as medical marijuana
processors and dispensaries
• The public's access to the premises of all types of commercial licenses, as well as medical
marijuana grow sites, processing sites, and dispensaries
The law also provides that time, place, and manner regulations imposed on commercial licensees must
be consistentwith city and county comprehensive plans, zoning ordinances, and public health and safety
laws, which would be true of any ordinance imposed by a city.
Early Sales (SB 460)
(awaiting the Governor's signature — effective on passage)
How Early Sales Work (SB 460 §§ 2, 3)
• Starting October 1, 2015, medical marijuana dispensaries may sell the following amounts of
commercial marijuana to a person who is 21 or older:
0 1/4 ounce of dried marijuana leaves and flowers per person per day
0 4 marijuana plants that are not flowering
o Marijuana seeds
• Starting January 4, 2016, sales of commercial marijuana from medical marijuana dispensaries
will be subject to a 25 percent sales tax (HB 2041 § 21a)
• Commercial sales from medical marijuana dispensaries are allowed through December 31, 2016
How Cities Can Ban Early Sales (SB 460 § 2(3))
A city can adopt an ordinance prohibiting the early sale of commercial marijuana from medical
marijuana dispensaries within its jurisdiction. No voter referral is required.
CAP081315 Page 100
Timeline
June 30, 2015 — HB 3400A becomes effective. However, many provisions of the law do not go into effect
immediately.
July 1, 2015— Personal possession of limited amounts of commercial marijuana is allowed for those 21
or older.
October 1, 2015—Sales of commercial marijuana from medical marijuana dispensaries begin, unless a
city has enacted an ordinance prohibiting early sales pursuant to SB 460 § 2(3).
December 24, 2015—City councils that are eligible to adopt a prohibition on marijuana activities
without a voter referral must have adopted the prohibition by this date.
January 1, 2016— Most amendments to Measure 91 go into effect. In addition, after this date, medical
marijuana growers may apply for an OLCC license to grow commercial marijuana at the same site.
January 4, 2016—The OLCC must approve or deny commercial license applications as soon as
practicable after this date. (HB 3400A § 171. In addition, medical marijuana dispensaries engaging in
early sales of commercial marijuana must begin collecting a 25 percent state tax on those sales.
March 1, 2016— Most amendments to the OM MA go into effect.
November 8, 2016 — Next statewide general election. Cities may refer measures on prohibition of
marijuana activities and measures on local taxes at this election.
December 31, 2016—Early sales of commercial marijuana from medical marijuana dispensaries end.
Return to Agenda
CAP081315 Page 101
L i i Beery Elsner
Hanlnlond LLP
Blazing the Oregon Trail —
Marijuana is Here, Now What?
OCCMA Summer Conference 2015 — Bend, OR
David F. Doughman, Partner
Chad A. Jacobs, Partner
Beery Elsner & Hammond, LLP
July 7, 2015
NOTES
Primer on Recreational Marijuana in Oregon
WHAT IS LEGAL
✓ Oregonians over 21 may possess up to 8 oz. of "usable" marijuana in their home
and 1 oz. outside their home.
✓ Individuals over 21 may grow 4 plants per residence, out of unaided public view.
✓ Adults over 21 may consume marijuana at home or on private property out of
public view.
✓ Adults over 21 may share or giveaway marijuana to other adults 21 and older.
✓ Adults over 21 may make edible marijuana products at home and share them
with other adults 21 and over.
WHAT IS NOT LEGAL
✓ It is illegal to smoke or otherwise consume marijuana in public.
✓ It is illegal to transport marijuana in or out of the state, including to and from
Washington.
✓ It is illegal to possess more than 1 oz. of usable marijuana outside of one's home.
✓ It is illegal to give marijuana to anyone under 21 years old.
✓ It is illegal to smoke or consume marijuana and drive. Marijuana use and
consumption is subject to Oregon DUII laws.
✓ It is illegal for individuals to sell marijuana or edible marijuana products even to
adults 21 and over.'
Return to Agenda
Sales in Oregon must be done by licensed retailers regulated by OLCC (or medical
marijuana dispensaries).
CAP081315 Page 104
Most Relevant Sections of HB 3400:
Local Time, Place and Manner Regulations (Sections 33 and 89)
SECTION 33. Section 59, chapter 1, Oregon Laws 2015, is amended to read:
(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;
(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.
SECTION 89. (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 cannabinoid
CAP081315 Page 105
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.
Land Use (Section 34)
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;
(b) A farm stand, as described in ORS 215.213 (1)(r) or 215.283 (1)(0), 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.
CAP081315 Page 106
(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.
Local Option Tax (Section 34a)
SECTION 34a. (1)(a) Except as expressly authorized by this section, the authority to
impose a tax or fee on the production, processing or sale of marijuana items in this state
is vested solely in the Legislative Assembly.
(b) Except as expressly authorized by this section, a county, city or other municipal
corporation or district may not adopt or enact ordinances imposing a tax or fee on the
production, processing or sale of marijuana items in this state.
(2) Subject to subsection (4) of this section, the governing body of a city or county may
adopt an ordinance to be referred to the electors of the city or county as described in
subsection (3) of this section that imposes a tax or a fee on the sale of marijuana items
that are sold in the area subject to the jurisdiction of the city or the unincorporated area
subject to the jurisdiction of a county by a person that holds a license under section 22,
chapter 1, Oregon Laws 2015.
(3) If the governing body of a city or county adopts an ordinance under this section, the
governing body shall refer the measure of the ordinance to the electors of the city or
county for approval at the next statewide general election.
(4) An ordinance adopted under this section may not impose a tax or fee in excess of 3
percent.
Local Option (Sections 133-136)
SECTION 133. (1) As used in this section, "qualifying city or county' means a county,
or a city located in a county, in which not less than 55 percent of votes cast in the
county during the statewide general election held on November 4, 2014, on Ballot
Measure 91 (chapter 1, Oregon Laws 2015) were in opposition to the ballot measure.
(2)(a) The governing body of a qualifying city or county may adopt ordinances that
prohibit the establishment of any one or more of the following in the area subject to the
jurisdiction of the city or the unincorporated area subject to the jurisdiction of the county:
(A) Marijuana processing sites registered under section 85 of this 2015 Act;
(B) Medical marijuana dispensaries registered under ORS 475.314;
CAP081315 Page 107
(C) Marijuana producers licensed under section 19, chapter 1, Oregon Laws 2015;
(D) Marijuana processors licensed under section 20, chapter 1, Oregon Laws 2015;
(E) Marijuana wholesalers licensed under section 21, chapter 1, Oregon Laws 2015;
(F) Marijuana retailers licensed under section 22, chapter 1, Oregon Laws 2015; or
(G) Any combination of the entities described in this subsection.
(b) The governing body of a qualifying city or county may not adopt an ordinance under
this section later than 180 days after the effective date of this 2015 Act.
(3) If the governing body of a qualifying city or county adopts an ordinance under this
section, the governing body must provide the text of the ordinance:
(a) To the Oregon Health Authority, in a form and manner prescribed by the authority,
if the ordinance concerns a medical marijuana dispensary registered under ORS
475.314 or a marijuana processing site registered under section 85 of this 2015 Act; or
(b) To the Oregon Liquor Control Commission, if the ordinance concerns a premises for
which a license has been issued under section 19, 20, 21 or 22, chapter 1, Oregon
Laws 2015.
(4)(a) Upon receiving notice of a prohibition under subsection (3) of this section, the
authority shall discontinue registering those entities to which the prohibition applies.
(b) Upon receiving notice of a prohibition under subsection (3) of this section, the
commission shall discontinue licensing those premises to which the prohibition applies.
(5) Notwithstanding any other provisions of law, a qualifying city or county that adopts
an ordinance under this section may not impose a tax or fee on the production,
processing or sale of marijuana or any product into which marijuana has been
incorporated.
(6) Notwithstanding subsection (2) of this section, a medical marijuana dispensary is not
subject to an ordinance adopted under this section if the medical marijuana dispensary:
(a) Is registered under ORS 475.314 on or before the date on which the governing body
adopts the ordinance; and
(b) Has successfully completed a city or county land use application process.
(7) Notwithstanding subsection (2) of this section, a marijuana processing site is not
subject to an ordinance adopted under this section if the marijuana processing site:
(a) Is registered under section 85 of this 2015 Act on or before the date on which the
governing body adopts the ordinance; and
(b) Has successfully completed a city or county land use application process.
SECTION 134. (1) The governing body of a city or county may adopt ordinances to be
referred to the electors of the city or county as described in subsection (2) of this section
that prohibit or allow the establishment of any one or more of the following in the area
subject to the jurisdiction of the city or the unincorporated area subject to the jurisdiction
of the county:
(a) Marijuana processing sites registered under section 85 of this 2015 Act;
CAP081315 Page 108
(b) Medical marijuana dispensaries registered under ORS 475.314;
(c) Marijuana producers licensed under section 19, chapter 1, Oregon Laws 2015;
(d) Marijuana processors licensed under section 20, chapter 1, Oregon Laws 2015;
(e) Marijuana wholesalers licensed under section 21, chapter 1, Oregon Laws 2015;
(f) Marijuana retailers licensed under section 22, chapter 1, Oregon Laws 2015; or
(g) Any combination of the entities described in this subsection.
(2) If the governing body of a city or county adopts an ordinance under this section, the
governing body shall submit the measure of the ordinance to the electors of the city or
county for approval at the next statewide general election.
(3) If the governing body of a city or county adopts an ordinance under this section, the
governing body must provide the text of the ordinance:
(a) To the Oregon Health Authority, in a form and manner prescribed by the authority,
if the ordinance concerns a medical marijuana dispensary registered under ORS
475.314 or a marijuana processing site registered under section 85 of this 2015 Act; or
(b) To the Oregon Liquor Control Commission, if the ordinance concerns a premises for
which a license has been issued under section 19, 20, 21 or 22, chapter 1, Oregon
Laws 2015.
(4)(a) Upon receiving notice of a prohibition under subsection (3) of this section, the
authority shall discontinue registering those entities to which the prohibition applies until
the date of the next statewide general election.
(b) Upon receiving notice of a prohibition under subsection (3) of this section, the
commission shall discontinue licensing those premises to which the prohibition applies
until the date of the next statewide general election.
(5) Notwithstanding any other provisions of law, a city or county that adopts an
ordinance under this section that prohibits the establishment of an entity described in
subsection (1) of this section may not impose a tax or fee on the production, processing
or sale of marijuana or any product into which marijuana has been incorporated.
(6) Notwithstanding subsection (1) of this section, a medical marijuana dispensary is not
subject to an ordinance adopted under this section if the medical marijuana dispensary:
(a) Is registered under ORS 475.314 on or before the date on which the governing body
adopts the ordinance; and
(b) Has successfully completed a city or county land use application process.
(7) Notwithstanding subsection (1) of this section, a marijuana processing site is not
subject to an ordinance adopted under this section if the marijuana processing site:
(a) Is registered under section 85 of this 2015 Act on or before the date on which the
governing body adopts the ordinance; and
(b) Has successfully completed a city or county land use application process.
CAP081315 Page 109
SECTION 135. (1) Notwithstanding sections 133 and 134 of this 2015 Act, a medical
marijuana dispensary is not subject to an ordinance adopted pursuant to section 133 or
134 of this 2015 Act if the medical marijuana dispensary:
(a) Was registered under ORS 475.314, or has applied to be registered under ORS
475.314, on or before July 1 , 2015; and
(b) Has successfully completed a city or county land use application process.
(2) This section does not apply to a medical marijuana dispensary if the Oregon Health
Authority revokes the registration of the medical marijuana dispensary.
SECTION 136. (1) Notwithstanding sections 133 and 134 of this 2015 Act, a marijuana
processing site is not subject to an ordinance adopted pursuant to section 133 or 134 of
this 2015 Act if the person responsible for the marijuana processing site or applying to
be the person responsible for the marijuana processing site:
(a) Was registered under ORS 475.300 to 475.346 on or before July 1, 2015;
(b) Was processing usable marijuana as described in section 85 (1) of this 2015 Act on
or before July 1, 2015; and
(c) Has successfully completed a city or county land use application process.
(2) This section does not apply to a marijuana processing site if the Oregon Health
Authority revokes the registration of the marijuana processing site.
Preemption (Section 57)
SECTION 57. Section 58, chapter 1, Oregon Laws 2015, is amended to read:
Sec. 58. The provisions of sections 3 to 70, chapter 1, Oregon Laws 2015, are designed
to operate uniformly throughout the state and are paramount and superior to and fully
replace and supersede any municipal charter amendment or local ordinance
inconsistent with the provisions of sections 3 to 70, chapter 1, Oregon Laws 2015.
Amendments and ordinances that are inconsistent with the provisions of sections 3 to
70, chapter 1, Oregon Laws 2015, are repealed.
Limits on Grow Sites (Sections 82, 82a and 82b)
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.
CAP081315 Page 110
(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.
(7) If a law enforcement officer determines that a registry identification cardholder, the
designated primary caregiver of a registry identification cardholder, or a person
responsible for a marijuana grow site under ORS 475.304 who grows marijuana for a
CAP081315 Page 111
registry identification cardholder, possesses a number of mature marijuana plants in
excess of the quantities specified in this section, the law enforcement officer may
confiscate only the excess number of mature marijuana plants.
SECTION 82a. (1) Except as provided in subsection (2) of this section, a registry
identification cardholder and the designated primary caregiver of the registry
identification cardholder may jointly possess no more than 24 ounces of usable
marijuana.
(2) Subject to subsection (3) of this section, a person designated to produce marijuana
by a registry identification cardholder may possess the amount of usable marijuana that
the person harvests from the person's mature marijuana plants, provided that the
person may not possess usable marijuana in excess of the amount of usable marijuana
in the person's possession as reported to the Oregon Health Authority under section
81a of this 2015 Act.
(3) A person designated to produce marijuana by a registry identification cardholder
may not possess usable marijuana in excess of:
(a) For a marijuana growsite located outdoors, 12 pounds of usable marijuana per
mature marijuana plant; or
(b) For a marijuana growsite located indoors, six pounds of usable marijuana per
mature marijuana plant.
SECTION 82b. The amendments to ORS 475.320 by section 82 of this 2015 Act apply
to persons who registered with the Oregon Health Authority under ORS 475.304 before,
on or after the operative date specified in section 179 of this 2015 Act.
SB 460 (NB: Governor Brown has not yet signed as of July 7, 2015, though she is
expected to do so):
SECTION 1. Section 2 of this 2015 Act is added to and made a part of ORS 475.300 to
475.346.
SECTION 2. (1) As used in this section:
(a) "Limited marijuana retail product" means:
(A) The seeds of marijuana;
(B) The dried leaves and flowers of marijuana; and
(C) A marijuana plant that is not flowering.
(b) "Marijuana" means the plant Cannabis family Cannabaceae, any part of the plant
Cannabis family Cannabaceae and the seeds of the plant Cannabis family
Cannabaceae.
(c) "Medical marijuana dispensary" means an entity registered with the Oregon Health
Authority under ORS 475.314.
CAP081315 Page 112
(2) Notwithstanding any other provision of law, on and after October 1, 2015, a medical
marijuana dispensary may sell limited marijuana retail product to a person who is 21
years of age or older if:
(a) The person presents proof of age to the medical marijuana dispensary before
entering into the medical marijuana dispensary;
(b) The medical marijuana dispensary verifies that the person is 21 years of age or older
at the time of the sale;
(c) The medical marijuana dispensary sells no more than one-quarter ounce of limited
marijuana retail product to the person per day if the person is purchasing the dried
leaves and flowers of marijuana; and
(d) The medical marijuana dispensary sells no more than four units of limited marijuana
retail product to the person if the person is purchasing a marijuana plant that is not
flowering.
(3) A city or county may adopt ordinances prohibiting the sale of limited marijuana retail
product as described in this section in the area subject to the jurisdiction of the city or
the unincorporated area subject to the jurisdiction of the county.
(4) The authority shall adopt rules to implement this section, including rules that:
(a) Are necessary to ensure the public health and safety; and
(b) Ensure that a medical marijuana dispensary complies with this section.
(5) The authority may prohibit a medical marijuana dispensary from selling limited
marijuana retail product as described in this section if the medical marijuana dispensary
violates this section.
SECTION 3. Section 2 of this 2015 Act is repealed on December 31, 2016.
SECTION 4. This 2015 Act being necessary for the immediate preservation of the public
peace, health and safety, an emergency is declared to exist, and this 2015 Act takes
effect on its passage.
CAP081315 Page 113
ORDINANCE NO.
AN ORDINANCE ADDING SECTION XXXX TO THE XXXXXXX MUNICIPAL CODE
PROHIBITING THE ESTABLISHMENT OF CERTAIN MARIJUANA FACILITIES WITHIN
THE CITY.
WHEREAS, House Bill 3460 (2013) requires medical marijuana dispensaries to registerwith the
Oregon Health Authority and establishes rules for the State of Oregon's regulation of medical marijuana
dispensaries;
WHEREAS, Senate Bill 1531 (2014), placed additional restrictions on medical marijuana dispensaries
and expressly permitted the City to impose a temporary moratorium on the operation of registered
medical marijuana facilities within City limits;
WHEREAS, Ballot Measure 91. which was approved by the voters ofOregon in Novemberof 3014.
permits the manufacturing, distribution. sale. possession and use of recreational marijuana in this State;
WHEREAS, House Bill 3400 (2015) expressly permits local jurisdictions to prohibit the establishment
ofnhanjusna facilities within theirjunsdictional limits and the City desires to impose such limits
pursuant o this authority;
WHEREAS. the City believes House Bill 3400 is not the only source of authority for the City to
prohibit the establishment of marijuana facilities; and
WHEREAS, the City Council finds that the public health, safety mud general welfare of the City, its
residents and its visitors necessitates and requires the adoption ofthis ordinance prohibiting the
establishment mud operation ofangouana facilities within City limits.
NOW,THEREFORE, THE CITY OF XXXXXXX ORDAINS AS FOLLOWS:
Section I. Section XXX — Prohibition on Marijuana Facilities — is added to the XXXXXX Municipal
Code to read as follows:
SECTION XXXXXX— Prohibition on Marilnana Facilities.
A. Prohibition. No person, business orentity may establish a marijuana facility within City limits.
The establishhnent. maintenance, or operation of a facility by a person, business or any other
entity within the City in violation ofthis section is declared to be a public nuisance.
B. Definitions. For the puq>oses ofthn section a "marijuana facility 'includes:
1. Manjuana processing sites registered with the Oregon Health Authonty;
3. Medical mannarra dispensaries registered with the Oregon Health Au[honty;
3. Mannana producers licensed by the Oregon Liquor Control Commission;
4. Mannera processors licensed by the Oregon Liquor Control Commission;
5. Manjuma wholesalers licensed by the Oregon Liquor Control Commission; and
6. Manjuma retailers licensed by the Oregon Liquor Control Commission_.._
uusuka
CAP081315 Page 114
Violations and Enforcement
1. The establishment maintenance or operation ofa marijuana facility by a person, business or
any other entity within the City in violation ofthe requirements ofthis section will be subject
to any and all enforcement remedies available to the City under law and /orthe XXXXXX
Municipal Code including but not limited to enforcement pursuant to Chapter XXX �fTic Comment [A2]'I, --s
XXXXXX Municipal Code and /orthe filing ofan appropriate action and pursuit ofan
appropriate remedy in a court ofcompetent jurisdiction.
2. The City may abate any nuisance under this chapter either pursuant to Chapter XXXXX of
the XXXXXX Municipal Code or it may pursue any other remedies available to it including
but not limited to an action seeking declaratory reliefand,or injunctive relief.
3. Ifthe city brings an action in either law or equity in any of the courts ofthis state (including
the U.S. District Court for the District of Oregon) other than its municipal court for the
enforcement ofthis Chapter, the city shall be entitled to the award of its reasonable attorneys
fees in the event it is the prevailing party.
Stolon 2. This Ordinance being necessary for the immediate preservation ofthe public peace, health
and safety, an emergency is declared to exist, and this Ordinance takes effect on XXXXX x, 2015.
PASSED BY THE COENCIL THIS DAY OF XXXXX, 2015.
APPROVED BY THE MAYOR THIS DAY OF XXXXX, 2015.
ATTEST
Cil, R—rder
11119111 3I
M..
CAP081315 Page 115
ORDINANCE NO.
AN ORDINANCE PROHIBITING THE SALE OF LIMITED MARIJUANA RETAIL PRODUCT PURSUANT TO
OREGON SENATE BILL 460 �ND DECLARING AN EMERGENCYI
WHEREAS, the Oregon Legislature passed and the governor signed SB 460, which permits medical
marijuana dispensaries to sell "limited marihuana retail products" beginning October 1, 2015, to persons
without a medial marijuana card who are at least 21 years old;
WHEREAS, SB 460 defines a "limited marijuana retail product' as marijuana seeds, dried marijuana
leaves/dried marijuana flowers and a marijuana plant that is not flowering;
WHEREAS, SB 460 will permit medial marijuana dispensaries to sell limited marijuana retail products to
non -card holders until recreational dispensaries are licensed and established; and
WHEREAS, SB 460 expressly permits dties and counties to enact an ordinance prohibiting medical
marijuana dispensaries from doing so.
NOW, THEREFORE, �he City/County of _ ordains as follows)
Section 1. Medical marijuana dispensaries (a/k/a medical marijuana "facilities"(may only sell
limited marijuana retail products as that term is defined in Oregon Senate Bill 460
(2015) to persons who are registered cardholders under the Oregon Medical Marijuana
Act. Medical manjuana dispensaries are otherwise prohibited from selling limited
marijuana retail products to any other persons.
�ection 24 In order to preserve the health, safety and welfare of the Cit,/Count, of its
residents and its visitorsthe City Council/Board of Co loners for
declare an emergency to exist Therefore thsordinance seffectve upon
its passage.
CAP081315 Page 116
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ORDINANCE NO. 3 QG 7
AN ORDINANCE AMENDING 18.08,18.32.025, 18.32.030, 18.40.030,
18.40.040,18.52.020 AND 18.94.120 OF THE ASHLAND MUNICIPAL
CODE ALLOWING MEDICAL MARIJUANA DISPENSARIES IN
SPECIFIED PORTIONS OF THE COMMERCIAL (C-1), EMPLOYMENT
(E-1), AND INDUSTRIAL (M-1) ZONING DISTRICTS
Annotated to show deletions and additions to the code sections being modified. Deletions are
hold thwdAhrogio and additions are in hold underline.
WHEREAS, Article 2. Section I of the Ashland City Charter provides:
Powers of the City The City shall have all powers which the constitutions, statutes, and
common law of the United States and of this State expressly or impliedly grant or allow
municipalities, as fully .as though this Charter specifically enumerated each of those
powers, as well as all powers not inconsistent with the foregoing; and, in addition thereto,
shall possess all powers hereinafter specifically granted. All the authority thereof shall
have perpetual succession.
WHEREAS, the above referenced grant of power has been interpreted as affording all
legislative powers home role constitutional provisions reserved to Oregon Cities. City of
Beaverton v. International Ass'n of Firefighters, Local 1660, Beaverton Shop 20 Or. App. 293;
531 P 2d 730, 734 (1975); and
WHEREAS, the Oregon Legislature enacted House Bill 3460 in 2013 (ORS 475.314) which
requires the Oregon Health Authority to develop and implement a process to register medical
marijuana facilities; and -
WHEREAS, under Oregon law, local governments may regulate the operation and location of
certain types of businesses within their jurisdiction limits except when such action has been
specifically preempted by state statute; and
WHEREAS, the City Council determined it is necessary to establish rules and regulations
permitting medical marijuana dispensaries as a new land use within the City and minimizing the
potential impacts to nearby residential neighborhoods; and
WHEREAS, the Planning Commission of the City of Ashland conducted a duly advertised
public hearing on the amendments to Title 18 Land Use of the Ashland Municipal Code on May
13, 2014, , and following deliberations, recommended approval of the amendments by a
unanimous vote; and
WHEREAS, the City Council of the City of Ashland conducted a duly advertised public hearing
on the above -referenced amendments on June 17, 2014 and, following the close of the public
An Ordinance Amending AMC Title 18 for Medical Marijuana Dispensaries Page 1
CAP081315 Page 117
hearing and record, deliberated and conducted first and second readings approving adoption of
the ordinance in accordance with Article 10 of the Ashland City Charter; and
WHEREAS, the City Council of the City of Ashland has determined that in order to protect and
benefit the public health, safety and welfare of existing and future residents of the City, it is
necessary to amend the Ashland Land Use Ordinance in the manner proposed, that an adequate
factual base exists for the amendments, that the amendments are consistent with the
comprehensive plan and that such amendments are fully supported by the record of this
proceeding.
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS
SECTION 1. The above recitations are true and correct and are incorporated herein by this
reference.
SECTION 2. Chapter 18.08 [Definitions] is hereby amended to include the following new
definition:
SECTION 18.08.486 Medical Marijuana Dispensaries.
Any facility registered by the Oregon Health Authority under ORS 475.3UU to 475.346
that dispenses marijuana pursuant to ORS 475.314.
SECTION 3. Section 18.32.025 [C-1 Retail Commercial District — Special Permitted Uscs] is
hereby amended to read as follows:
SECTION 18.32.025 Special Permitted Uses.
The following uses and their,accessory uses are permitted outright subject to the
requirements of this section and the requirements of Chapter 18.72, Site Design and Use
Standards.
A. Commercial laundry, cleaning and dyeing establishments.
1. All objectionable odors associated with the use shall be confined to the lot upon
which the use is located, to the greatest extent feasible. For the purposes of this
provision, the standard for judging "objectionable odors" shall be that of an
average, reasonable person with ordinary sensibilities after taking into
consideration the character of the neighborhood in which the odor is made and the
odor is detected.
2. The use shall comply with all requirements of the Oregon Department of
Environmental Quality.
B. Bowling alleys, auditoriums, skating rinks, and miniature golf courses. if parking
areas we located within 200' of a residential district, they shall be shielded from
residences by a fence or solid vegetative screen a minimum of 4' in height.
C. Automobile fuel sales, and automobile and truck repair facilities. These uses may
only be located in the Freeway Overlay District as shown on the official zoning map.
D. Residential uses.
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I. At least 65% of the total gross floor area of the ground floor, or at least 50% of the
total lot area if there are multiple buildings shall be designated for permitted or
special permitted uses, excluding residential.
2. Residential densities shall not exceed 30 dwelling units per acre in the C -I District,
and 60 dwelling units per acre in the C-1-DDistrict. For the purpose of density
calculations, units of less than 500 square feet of gross habitable floor area shall
count as 0.75 of a unit.
3. Residential uses shall be subject to the same setback, landscaping, and design
standards as for permitted uses in the underlying C-1 or C-1-DDistrict.
4. Off-street parking shall not be required for residential uses in the C -1-D District.
5. If the number of residential units exceeds 10, then at least 10% of the residential
units shall be affordable for moderate income persons in accord with the standards
established by resolution of the Ashland City Council through procedures contained
in the resolution. The number of units required to be affordable shall be rounded
down to the nearest whole unit.
E. Drive -up uses as defined and regulated as follows:
1. Drive -up uses are defined as any establishment which by design, physical facilities,
service or by packaging procedures encourages or permits customers to receive
services, obtain goods other than automobile fuel, or be entertained while remaining
in their motor vehicles. rhe components of a drive -up use include kiosks, canopies
or other structures; windows:. stalls; queuing lanes and associated driveways. Drive -
up uses may be approved in the C -t District only, and only in the area east of a line
drawn perpendicular to Ashland Street at the intersection of Ashland Street and
Siskiyou Boulevard
2. Drive -up uses are prohibited in Ashland's Historic Interest Area as defined in the
Comprehensive Plan. The four existing non-confomting financial institution drive -
up use in operation in the Historic Interest Area as of August 7, 2012 may redevelop
or relocate within the C-1 and C-1-Dzoned portions of Ashland Historic Interest
Area subject to the following requirements:
a. Relocation or redevelopment of a drive -up use within the C-1 or C -I -D zoned
portions of the Historic Interest Area shall be subject to a Type 11 Site Review
procedure as a Special Permitted Use.
b. Relocated or redeveloped drive-upusesmay only be placed on a secondary
building elevation, and only accessed from an alley or driveway. A secondary
building elevation is defined as a building's side or rear elevation which does not
face a street, other than an alley.
c. Driveways serving relocated or redeveloped drive -up uses shall not enter from or
exit to a higher order street frontage or through a primary elevation of the
building, and driveways or queuing lanes shall be not placed between a building
and the right-of-way other than an alley.
d. No demolition of or exterior change to a building considered to be a historic
resource shall be permitted to accommodate the relocation or redevelopment of a
drive -up use.
e. Regardless of the number of drive -up windows/lanes in use in the current
location, with a relocation or remodel the number of windows/lanes shall be
reduced to one (1).
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3. Drive -up uses are subject to the following criteria:
a. The average waiting time in line for each vehicle shall not exceed five minutes.
Failure to maintain this average waiting time may be grounds for revocation of
the approval.
b. All facilities providing drive -up service shall provide at least two designated
parking spaces immediately beyond the service window or provide other
satisfactory methods to allow customers requiring excessive waiting time to
receive service while parked.
c. A means of egress for vehicular customers who wish to leave the waiting line
shall be provided.
d. The grade of the stacking area to the drive -up shall either be flat or downhill to
eliminate excessive fuel consumption and exhaust during the wait in line.
e. The drive -up shall be designed to provide as much natural ventilation as possible
to eliminate the buildup of exhaust gases.
f Sufficient stacking area shall be provided to ensure that public rights-of-way are
not obstructed.
g. The sound level of communications systems shall not exceed 55 decibels at the
property line and shall otherwise comply with the Ashland Municipal Code
regarding sound levels.
h. The number of drive -up uses shall not exceed the 12 in existence on July 1,
1984. Drive -up uses may be transferred to another location in accord with all
requirements of this section. The number of drive -up window stalls shall not
exceed 1 per location, even if the transferred use had greater than one stall.
i. A separate ministerial "Drive -Up Transfer" permit shalt be obtained for the
transfer of any drive -up use when such transfer is not associated with a Site
Review or Conditional Use permit application in order to formally document
transfer of the use.
j. Drive -up uses which we discontinued without a properly permitted transfer shall
be deemed to have expired after unused for six (6) months. Discontinuation of a
drive -up use is considered to have occurred when the drive -up use is documented
as having ceased on site through a ministerial, Site Review or Conditional Use
permit review, or upon on-site verification by the Staff Advisor.
k. All components of a drive -up use shall be removed within sixty (60) days of
discontinuation of the use through abandonment, transfer, relocation or
redevelopment.
F. Kennel and veterinary clinics where animals are housed outside, provided the use is
not located within 200' of a residential district.
G. Medical marihuana dispensaries meeting all of the following requirements:
1. The disoensary must be located on a property with a boundary line adjacent to a
boulevard, except that dispensaries are not permitted in the Downtown Design
Standards zone.
2. The dispensary must be located in a permanent building and may not locate in a
trailer, cargo container, or motor vehicle. Outdoor storage of merchandise, raw
materials, or other material associated with the dispensary is prohibited.
3. Any modifications to the subject site or exterior of a building housing the
dispensary must be consistent with the Site Design Use Standards, and obtain
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Site Review approval if required by section 18.72.030. Security bars or grates on
windows and doors are prohibited.
4. The dispensary must not have a drive -up use.
5. The dispensary must provide for secure disposal of marijuana remnants or bv-
trroduets: such remnants or hv-products shall not be placed within the
dispensary's exterior refuse containers.
6. The dispensary is registered with the Oregon Health Authority under the state of
Oregon's medical marijuana facility registration system under ORS 475.300 —
ORS 475.346, and meets the requirements of OAR Chapter 333 Division 8
Medical Marijuana Facilities.
SECTION 4. Section 18.32.030 [C-1 Retail Commercial District—Conditional Uses] is hereby
amended to read as follows:
SECTION 18.32.030 Conditional Uses.
The following uses and their accessory uses are permitted when authorized in accordance
with the chapter on Conditional Use permits:
A. Electrical substations.
13. Automobile fuel sales, and automobile and truck repair facilities, except as allowed as a
special permitted use in 18.32.025.
C. New and used car sales, boat, trailer, and recreational vehicles sales and storage areas,
except within the Historic Interest Area as defined in the Comprehensive Plan.
D. Hotels and motels.
E. Temporary uses.
F. Outdoor storage of commodities associated with a permitted, special permitted or
conditional use.
& Hostels, provided that the facility be subject to an annual Type I review for at least the
first three years, after which time the Planning Commission may approve, under a Type II
procedure, a permanent permit for the facility.
H. Building material sales yards, but not including concrete or asphalt batch or mixing
plants.
1. Churches or similar religious institutions.
J. Wireless Communication Facilities not permitted outright and authorized pursuant to
Section
18.72.180.
K. Structures which are greater than forty (40) feet in height, but less than fifty-five (55)
feet, in the "D" Downtown Overlay District.
materials, or other material associated with the dispensary is prohibited.
3. Anv modifications to the subject site or exterior of a building housing the
dispensary must be consistent with the Site Design Use Standards, and obtain
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products; such remnants or by-products shall not be placed within the
dispensary's exterior refuse containers.
6. The dispensary is registered with the Oregon Health Authority under the state of
Oregon's medical marijuana facility registration system under ORS 475.300 —
ORS 475.346, andmeetsthe requirements of OAR Chapter 333 Division 8
Medical Marijuana Facilities.
SECTION S. Section 18.40.030 [E-1 Employment District — Special Permitted Uses] is hereby
amended to read as follows:
SECTION 18.40.030 Special Permitted Uses.
The following uses and their accessory uses are permitted outright subject to the
requirements of this section, including all requirements of 18.72, Site Design and Use
Standards.
A. Bottling plants, cleaning and dyeing establishments, laundries and creameries.
1. All objectionable odors associated with the use shall be confined to the lot upon
which the use is located to the greatest extend feasible. For the purposes of this
provision, the standard for judging "objectionable odors' shallbe that of an average,
reasonable person with ordinary sensibilities after taking into consideration the
character of the neighborhood in which the odor is made and the odor is detected.
2. The use shall comply with all requirements of the Oregon Department of
Environmental Quality.
B. Wholesale storage and distribution establishments. Provided, however, that for the uses
specified in subsection A and B above, no deliveries or shipments shall be made from
Spm to 7am where the property on which the use is located is within 200 feet of any
residential district.
C. Recycling depots, provided the use is not located within 200' of a residential district.
D. Kennels and veterinary clinics where animals are housed outside, provided the use is not
located within 200' of a residential district.
R. Residential uses. As indicated as R -Overlay on the official zoning map, and in
conformance with the Overlay Zones chapter 18.56.
F. Cabinet, carpentry, machine, and heating shops, if such uses are located greater than 200'
from the nearest residential district.
G. Manufacture of food products, but not including the rendering of fats or oils. For any
manufacture of food products with 200' of a residential district:
I. All objectionable odors associated with the use shall be confined to the lot upon
which the use is located, to the greatest extent feasible. For the purposes of this
provision, the standard for judging `objectionable odors" shall be that of an average,
reasonable person with ordinary sensibilities after taking into consideration the
character of the neighborhood in which the odor is made and the odor is detected.
Odors which are in violation of this section include but arc not limited to the
following:
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a. Odors from solvents, chemicals or toxic substances.
b. Odors from fermenting food products.
c. Odors from decaying organic substances or human or animal waste.
2. Mechanical equipment shall be located on the roof or the side of a building with the
least exposure to residential districts. Provided, however, that it may be located at any
other location on or within the structure or lot where the noise emanating from the
equipment is no louder, as measured from the nearest residential district, than if
located on the side of the building with least exposure to residential districts.
Mechanical equipment shall be fully screened and buffered.
H. Cold Storage Plants, if such uses are located greater than 200' from the nearest residential
district.
1. Automobile and truck repair facilities, excluding auto body repair and paint shops. All
cars and trucks associated with the use must be screened from view from the public right-
of-way by a total sight obscuring fence. Facilities of 3 bays or larger shall not be located
within 200' of a residential district.
L Medical marijuana dispensaries meeting all of the following requirements:
1. The dispensary must be located on a property with a boundary line adjacent to a
boulevard. -
3. Anv modifications to the subject site or exterior of a building housing the
dispensary must be consistent with the Site Design Use Standards, and obtain
Site Review approval if required by section 18.72.030. Security bars or grates on
windows and doors are prohibited.
4. The dispensary must not have a drive -up use.
5. The dispensary must provide for secure disposal of mariivana remnants or by-
products: such remnants or bv-Droducts must not be placed within the
dispensary's exterior refuse containers
SECTION 6. Section 18.40.040 [E-1 Employment District — Conditional Uses] is hereby
amended to read as follows: -
SECTION 1.8.40.040 Conditional Uses.
The following uses and their accessory uses are permitted when authorized in accordance
with the chapter on Conditional Use Permits:
A. Electrical substations.
B. Mini -warehouses and similar storage areas.
C. Contractor equipment storage yards or storage and rental of equipment commonly used
by a contractor.
D. Automobile fuel sales.
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L. New and used car sales, boat, trailer and recreational vehicles sales and storage areas,
provided that the use is not located within the Historic Interest Area as defined in the
Comprehensive Plan.
F. Hotels and motels.
G. Any use which involves outside storage of merchandise, raw materials, or other material
associated with the primary use on the site.
11. Private college, trade school, technical school, or similar school. -
1. Cabinet, carpentry, machine, and heating shops, if such uses are located less than or equal
to 200' from the nearest residential district.
J. Cold storage plants, if such uses are located less than or equal to 200' from the nearest
residential district.
K. Automotive body repair and painting, including paint booths.
L the use shall not be located within 200' of the nearest residentially zoned property.
2. All objectionable odors associated with the use shall be confined to the lot, to the
greatest extent feasible. For the purposes of this provision, the standard for judging
"objectionable odors" shall be that of an average, reasonable person with ordinary
sensibilities after taking into consideration the character of the neighborhood in which
the odor is made and the odor is detected.
3. The use shall comply with all requirements of the Oregon Department of
Environmental Quality.
L. Churches and similar religious institutions.
M. Nightclubs and Bars.
N. Theaters (excluding drive-in) and similar entertainment uses.
O. Temporary uses.
P. Wireless Communication Facilities not permitted outright and authorized pursuant to
Section 18.72.180.
O. Medical marijuana dispensaries, except as allowed as a special permitted use in
18.40.030, and meeting all of the following requirements:
3. Any modifications to the subject site or exterior of a building housing the
dispensary must be consistent with the Site Design Use Standards, and obtain
Site Review approval if required by section 18.72.030. Security bars or grates on
windows and doors are prohibited.
dispensary's exterior refuse containers.
Medical Marijuana Facilities.
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SECTION 7, Section 18.52.020 [M-1 Industrial District —Permitted Uses] is hereby amended
to read as follows:
SECTION 18.52.020 Permitted Uses.
The following uses and their accessory uses are permitted outright:
A. Any manufacturing, processing, assembling research, wholesale or storage use.
B. Railroad yards and freight stations, trucking and motor freight stations and facilities.
C. Public and public utility service buildings, structures and uses.
D. Permitted, special permitted and Cconditional uses in the Employment District
listed in Section 18.40.020 18.40.030 and 18.40.040 of this Chapter, except
residential uses. Medical marijuana dispensaries must meet the special use
requirements of 18.40.030.J.
E. Building materials sales yards.
F. Permitted uses in the Employment IN tFi-t I*qtPd in SPOiGH 18.40/020 Of this
SECTION 8. Section 18.94.120 [Home Occupations — Prohibited Uses] is hereby amended to
read as follows:
SECTION 18.94.120 Prohibited Uses.
The following uses we prohibited as home occupations:
A. Any activity that produces radio or TV interference, noise, glare.. vibration, smoke or
odor beyond allowable levels as determined by local, state or federal standards.
B. Any activity involving on-site retail sales, except as allowed in the Historic Railroad
District or items that are incidental to the occupational use, such as the sale of beauty
products from salons, lesson books or sheet music for music teachers, or computer
sollware for computer consultants.
C. Any uses described in this section or uses with similar objectionable impacts because
of automobile traffic, noise, glare, odor, dust, smoke or vibration:
1. Ambulance service;
2. Ammunition or firearm sales;
3. Ammunition reloading business;
4. Animal hospital, veterinary services, kennels or animal boarding;
5. Auto and other vehicle repair, including auto painting;
6. Repair, reconditioning or storage of motorized vehicles, boats, recreational
vehicles or large equipment on-site; and
7. Medical marijuana dispensaries.
SECTION 9. Severability. The sections, subsections, paragraphs and clauses of this ordinance
are severable. The invalidity of one section,subsection, paragraph, or clause shall not affect the
validity of the remaining sections, subsections, paragraphs and clauses.
SECTION 10. Codification. Provisions of this Ordinance shall be incorporated in the City
Code and the word "ordinance" may be changed to "code", "article", "section", or another word,
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and the sections of this Ordinance may be renumbered, or re -lettered, provided however that any
Whereas clauses and boilerplate provisions, and text descriptions of amendments (i.e. Sections 1-
4) need not be codified and the City Recorder is authorized to correct any cross-references and
any typographical errors.
The foregoing ordinance was first read by title only in acc rdance with Article X
Section 2(C) of the City Charter on the 14day of , 2014,
and dud ASSED and
ADOPTED this _/ day of 2014.
arbara M. Christensen, City Recorder -
SIGNED and APPROVED this _/ day ofJ�H\
Dennis
Reviewed a o form:
AA
cti
David Lohniagg,t6ty Attorney
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ORDINANCE No. 3868
AN ORDINANCE AMENDING ORDINANCE NO. 3848, AN ORDINANCE RELATED TO
NUISANCES; AND DECLARING AN EFFECTIVE DATE
Whereas, the City Council recognizes that drying, production, processing, keeping or storage of
marijuana, without appropriate safeguards in place, can have a detrimental effect upon public safety
and neighboring citizens; and
Whereas, the City Council finds and declares that the health, safety and welfare of its citizens are
promoted by requiring that persons engaged in drying, cultivation, production, processing, keeping, or
storage of marijuana to ensure that it is not accessible to unauthorized persons and that its odor does
not travel to other properties;
NOW THEREFORE, THE CITY OF PENDLETON ORDAINS AS FOLLOWS:
Section 9 shall be amended in the following manner:
SECTION 9. Odors and Perceptible Effects of Presence of Marijuana.
A. No person may permit or cause unreasonable quantities of soot, cinders, noxious acids, fumes a
gases to escape, causing harm to another person or to the public, or endangering the health, comfort
and safety of any person a the public, or permit a cause such materials to injure or damage property
a business.
B. For purposes of this Section, the following definitions apply:
(a) Marijuana. All parts of the plant Cannabis family Moraceae, whether growing or not; the resin
extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, a
preparation of the plant a its resin, whether kept for medicinal use a otherwise.
(b) Odor of marijuana. The characteristic of marijuana that may be perceived by the sense of smell.
C. For purposes of this Section, every law enforcement officer that is certified by the Oregon Board
of Police Standards and Training, is sufficiently trained to identify the sight and odor of marijuana and
whose opinion as to the presence of the odor of marijuana shall be presumed affirmative proof
thereof.
D. Unlawful Release of Marijuana Odor. No owner of real property or person in charge thereof shall
allow, permit a cause the odor of marijuana to emanate from that premises to any other property.
E. Screening requirements. No owner of real property or person in charge thereof shall permit the
possession, cultivation or production of marijuana in a place that may be seen by normal unaided
vision from a public place or neighboring property.
F. Violation of Subsections D. and E. herein are declared to be a public nuisance, punishable
pursuant to Section 29. Violations of this section may be abated in the manner provided in this
ordinance.
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PASSED by the City Council and approved by the Mayor June 2, 2015.
Phillip W. Houk, Mayor
ATTEST:
Andrea Denton, City Recorder
Approved as to Form:
Nancy Kerns, City Attorney
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CHAPTER 31
MEDICAL MARIJUANA
31.001. Purpose
31.005. Definitions
31.010. Administration: Rulemaking
31.015. License Required
31.020. License Fees: Proration
31.025. License Tenn and Renewal
31.030. Transferability
31.035. Display of License
31.040. License Requirements
31.045. New Licenses
31.050. Renewal of License
31.055. License Revocation
31.060. Civil Enforcement
31.065. Unlawful Failure to Obtain License
31.070. Unlawful Activity by Licensee.
31.075. Unlawful Engaging in Licensed Activity While License is Suspended or Revoked.
31.080. Standards of Operation.
31.085. Location
31.090. Criminal Background Checks.
31.095. Inspection
31.100. Examination of Books, Records, and Premises.
31.105. Confidentiality
31.001. Purpose. The purpose of this Chapter is to create a licensing and regulatory program for
Medical Marijuana Facilities that protects the public health, safety, and welfare.
31.005. Definitions. Except as the context otherwise specifically requires, as used in this Chapter,
the following mean:
(a) Career school has the meaning as defined on Oregon Administrative Rule 333-008-
1010(5).
(b) Chief means the Chief of the Salem Police Department or the Chief's designee.
(e) Elementary school has the meaning as defined in Oregon Administrative Rule 333-
008-1010(10).
(d) Fire Code Official means the Fire Chief of the Salem Fire Department or the Fire
Chief's designee.
(e) License means the written form of permission required in order to operate a business
or pursue a vocation as required by this Chapter, and is not intended to be an
endorsement of a particular business or vocation or licensee.
(1) Licensee means a person engaged in the business of furnishing or operating a business
defined by this Chapter, whether upon contract or by offering such service to the public
generally.
(g) Marijuana has the meaning given that term in ORS 475.302.
(h) Medical marijuana means marijuana used for the exclusive benefit of a person to
mitigate the symptoms or effects of the person's debilitating medical condition.
(i) Medical marijuana facility, or "facility," means a facility that is registered by the
Oregon Health Authority and that sells, distributes, transmits, gives, dispenses, or
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otherwise provides medical marijuana to a natural person with a registry identification
card. A "facility" includes all premises, buildings, cartilage, or other structures used to
accomplish the storage, distribution and dissemination of marijuana.
Q) Person means any natural person, partnership, corporation, Limited Liability
Company, government entity, association or other entity in law or fact.
(k) Person or persons with a financial interest means any person that has loaned or given
money or real or personal property to the applicant, or principal of the applicant for use
by the proposed facility within the preceding year.
(1) Principal means members, partners, or corporate officers, and all stockholders holding
more than ten percent of the voting stock for any applicant who is not a natural person.
(m) Registry identification card means a document issued by the Oregon Health
Authority that identifies a person authorized to engage in the medical use of marijuana,
and the person's designated primary caregiver, if any.
31.010. Administration; Rulemaking.
(a) The Chief shall administer and enforce the provisions of this Chapter, and shall have
the authority to render written and oral interpretations, and to adopt administrative rules
and procedures necessary for its proper administration and enforcement.
(b) The Chief may investigate any applicant for a license to ensure compliance with the
requirements of this Chapter. The Chief may require, as part of any application for a
license, that any premises sought to be licensed be inspected to ensure compliance with
the requirements of this Chapter. The Chief may require the fingerprinting of any natural
person whose name is required to be furnished in connection with any application, may
require the submission of a criminal history including, but not limited to, an FBI
Identification Record, and may require an applicant to provide such additional
information that the Chief determines is necessary to evaluate the application. The
applicant is responsible for any fees or costs associated with the criminal background
check.
31.015. License Required. A license issued pursuant to this Chapter shall be required for any
person engaging in the operation of a medical marijuana facility.
31.020. License Fees; Proration
(a) Fees for licenses required by this Chapter shall be set by resolution of the City
Council in an amount not to exceed 52,000.00.
31.025. License Term and Rcncwal.
(a) A license shall be valid from the date of issuance for a period of one year.
(b) A license may be renewed for additional one year terms as provided by this Chapter.
31.030. Transferability. Licenses issued under this Chapter shall not be transferred to any other
person.
31.035. Display of License. Upon request, the licensee shall show the license to any person with
whom the licensee is dealing as part of the licensed activity or to the Chief or the Chief's designee.
31.040. License Requirements. In addition to any other requirement set forth in this Chapter, each
licensee shall:
(a) Notify the Chief in writing within ten business days of any change in the material
information related to the license including, but not limited to, change ofname, address,
telephone number, additional employees or volunteers, additional principals or persons
with a financial interest, criminal history, or registered agent. No new principal may
become involved in a licensed business until an application is submitted to and approved
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by the Chief for that new principal. If a new principal does become involved in a licensed
business prior to approval, the Chief may revoke the license pursuant to the procedures
set forth in SRC 31.045.
(b) Advertise for business only in the name in which a license is issued.
31.045. New Licenses.
(a) Application. An application for a new license shall include the following
information, in addition to any other information specifically required elsewhere in this
Chapter:
(1) The applicant's name and address;
(2) The names and residence addresses of all principals of the applicant;
(3) The names and residence addresses of all persons with a financial interest
that have loaned or given money or real or personal property to the applicant, or
principal of the applicant for use by the proposed facility within the preceding
year;
(4) The names and residence addresses of all persons who are or anticipated to
be at the bine of application an employee or volunteer at the proposed facility;
(5) The address to which mail concerning the license may be sent;
(6) All business addresses maintained or to be maintained by the applicant in the
state of Oregon;
(7) Submission of complete application for a criminal background check for
the applicant, and all principals, persons with a financial interest, employees and
volunteers of the proposed Facility;
(8) The names of at least three natural persons who can give an informed
account of the business and moral character of the applicant and principals;
(9) The signature of the applicant, if a natural person, or otherwise the signature
of an authorized agent of the applicant, if the applicant is other than a natural
person;
(10) The address of the proposed facility;
(11) If the applicant is leasing the property where the facility will be located, the
name and address of the owner, landlord, and property manager of the location of
the proposed facility;
(12) A complete description of the proposed accounting and inventory systems
for the facility;
(13) Certification that the proposed facility is registered as a facility with the
Oregon Health Authority pursuant to ORS 475.314;
(14) Other information deemed reasonably necessary by the Chief to complete
review of the application.
(b) Review of Application.
(1) No application shall be deemed complete until all of the information required
by subsection (a) of this section has been provided and the applicant has paid all
fees associated with the license, including a non-refundable application fee.
(2) Upon receipt of a complete application, the Chief shall conduct such
investigation as the Chief deems necessary to determine whether the application
meets the qualifications for the license and whether statements made in the
application are true. The Chief shall conduct a criminal background check on all
applicants, principals, persons with a financial interest, employees and volunteers
of the proposed Facility.
(c) Issuance of New License. A new license shall be granted to the applicant unless:
(1) The applicant made an untrue or incomplete statement on, or in connection
with, the application for the license; provided, that if such untrue or incomplete
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statement was the result of excusable neglect, the applicant may resubmit an
application in which such defect is corrected.
(2) The applicant fails to meet all requirements of federal, state and local laws
and regulations, including, but not limited to, other permitting or licensing
requirements and land use regulations, except that a license application for a
facility will not be denied solely because marijuana is illegal under federal law.
(3) The applicant, principal, or person with a financial interest in the facility fails
the criminal background check as required by SRC 31.090.
(4) The applicant, principal, or person with a financial interest in the Facility has
an outstanding warrant for his or her arrest.
(d) Notification to Applicant.
(1) If an application for a new license is approved, the Chief shall notify the
applicant in writing that the application has been approved. The notice shall
contain any conditions placed on the approval and any further requirements the
applicant must meet before a license will be issued.
(2) If an application for a new license is denied, the Chief shall notify the
applicant in writing that the application has been denied. The notice shall contain
a short and plain statement of the reason for the denial and a statement that the
applicant may appeal the denial as set forth in SRC Chapter 207.
(c) Issuance; Effective Date.
(1) After notice to the applicant, and upon payment of all fees associated with
the license, the Chief shall issue the license.
(2) A license is effective as of the date of issuance.
31.050. Renewal of License
(a) Renewals Permitted. A license may be renewed. An application to renew an
existing license shall be submitted not less than thirty days prior to the expiration date of
the existing license and shall be accompanied by any non-refundable application fee. If
an application to renew an existing license is not submitted within such thirty day period,
a new license is required.
(b) Application. An application to renew an existing license shall include the following
information, in addition to any other information specifically required elsewhere in this
Chapter:
(1) The applicant's name;
(2) A copy of the license for which renewal is sought
(3) A list of any and all crimes for which the applicant has been convicted within
the twelve months preceding the date of the renewal application, together with
the dates and places of such convictions;
(4) Identification and correction of any change in the information submitted in
the application for the existing license;
(5) The signature of the applicant, if a natural person, or otherwise the signature
of an authorized agent of the applicant, if the applicant is other than a natural
person.
(c) Review of Application.
(1) No application to renew an existing license shall be deemed complete until
all of the information required by subsection (b) of this section has been
provided, and the applicant has paid all fees associated with the application.
(2) Upon receipt of an application to renew an existing license, the Chief may
make such investigation as the Chief deems necessary to determine whether the
Facility is in compliance with all federal, state, and local laws and regulations,
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except that a license renewal application may not be denied solely because
marijuana is illegal under federal law.
(d) Criteria for Renewal of License. An application to renew an existing license shall
be granted unless:
(1) The applicant made an untrue or incomplete statement on, or in connection
with, the application to renew; provided, that if such untrue or incomplete
statement is the result of excusable neglect, the applicant may resubmit an
application to renew an existing license within the times provided in this section.
(2) The applicant no longer meets all requirements of federal, state, and local
laws and regulations, including, but not limited to, other professional licensing
regulations and land use regulations, except that a license renewal application
may not be denied solely because marijuana is illegal under federal law.
(3) Any person required to submit to a criminal background check as required by
SRC 31.090 fails the criminal background check.
(4) The applicant has an outstanding warrant for his or her arrest.
(5) The applicant has maintained or conducted the licensed business or vocation
in a manner contrary to the terms of the existing license or contrary to any
provision of this Chapter.
(6) Any other license or permit required to engage in the business or vocation
has been denied, suspended, revoked, or cancelled.
(7) The applicant has engaged in any behavior or activity that would endanger
public health, safety and welfare.
(c) Notification to Applicant.
(1) If an application to renew an existing license is approved, the Chief shall
notify the applicant in writing that the renewal has been approved. The written
notice shall contain any conditions placed on the renewal and any further
requirements the applicant must meet as a condition of renewal.
(2) If an application to renew an existing license is denied, the Chief shall notify
the applicant in writing that the renewal has been denied. The written notice shall
contain a statement of the reasons for the denial and statement that the applicant
may appeal the denial as set forth in SRC Chapter 20J.
(f) Issuance; Effective Date.
(1) After notice to the applicant, and upon payment of all renewal fees, the Chief
shall issue the renewal license.
(2) A renewed license is effective as of the expiration date of the prior license.
31.055. License Revocation
(a) A license issued pursuant to this Chapter shall be revoked if:
(1) The licensee, principal, employee, volunteer or person with a financial
interest in the facility fails to allow inspection or examination of the facility, or
examination of records, books, surveillance videotape or digital recordings as
required in this Chapter.
(b) A license issued pursuant to this Chapter may be revoked if:
(1) The licensee fails to comply with any of the requirements of this Chapter of
the license.
(2) The licensed activity is being conducted in a manner that presents an
immediate danger to property or public health, safety or welfare.
(3) The licensee or principal of licensee is arrested or convicted of any felony or
drug related misdemeanor.
(4) The Oregon Health Authority suspends or revokes the registration of the
medical marijuana facility to which the license pertains.
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(5) The licensee is doing business in violation of any applicable federal, state, or
local law or regulation, except that a license for a medical marijuana facility may
not be revoked solely because marijuana is illegal under federal law.
(6) The licensee provides or has provided false or misleading material
information or has failed to disclose a material fact on the application for the
license or in connection with the licensed activitv.
(7) The licensee has been assessed a civil penalty in connection with the
licensed activity and fails to pay the penalty within the time required.
(S) Federal or state statutes, regulations, or guidelines are modified, changed,
enforced, or interpreted in such a way by state or federal law enforcement
officials as to prohibit operation of the facility.
(c) The Chief shall provide written notice of revocation to the licensee. The written
notice shall state the basis for revocation of the license and shall inform the licensee of
the right to appeal the revocation as set forth in SRC Chapter 20J.
(d) The notice shall be given at least fifteen business days before the revocation becomes
effective. If the licensee corrects the basis for the revocation within the fifteen business
day period, the Chief may discontinue the revocation proceedings.
(c) A licensee who has had his or her license revoked may, after ninety calendar days
from the date of revocation, apply for a new license in the manner provided by this
Chapter. A licensee who has had his or her license revoked two times within any
consecutive twelve-month period shall be ineligible to apply for a license for two years
from the date of the last revocation.
31.060. Civil Enforcement.
(a) Civil Penalty. Any person who fails to comply with the requirements of this Chapter
or the terms of a license issued hereunder, who undertakes an activity regulated by this
Chapter without first obtaining a license, or who fails to comply with a cease and desist
order issued pursuant to this Chapter shall be subject to a civil penalty as provided in
SRC Chapter 201, not to exceed 52,000 per violation. Each day that a violation continues
shall constitute separate violation.
(b) Civil Penalties Against Agents. Any person who acts as the agent of, or otherwise
assists, a person who engages in an activity which would be subject to a civil penalty,
may likewise be subject to a civil penalty.
(c) Abatement. Any building or structure established, operated, or maintained contrary
to this Chapter is a public nuisance and may be abated as provided in SRC Chapter 50.
(d) Appeals. Any person who is a party to a decision of the Chief, or any administrative
enforcement order issued by the City pursuant to this section, may appeal the decision or
enforcement order to the Hearings Officer by following the process set forth in SRC
Chapter 201. The hearing on the appeal shall follow the contested case procedures set
forth in SRC 201.240 through 201.430.
(c) Proceedings by City Attorney. The City Attorney, upon request of the Chief, may
institute any legal proceedings in circuit court necessary to enforce the provisions of this
Chapter. Proceedings may include, but are not limited to, injunctions to prohibit the
continuance of the licensed activity, and any use or occupation of any building or
structure used in violation of this Chapter.
(f) Remedies not Exclusive. The remedies provided in this Chapter are cumulative and
not mutually exclusive and are in addition to any other rights, remedies, and penalties
available under any other provision of law.
31.065. Unlawful Failure to Obtain License.
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(a) It shall be unlawful for a person to engage in any business or vocation for which a
license is required by this Chapter without first obtaining a license therefor.
(b) A violation of this section is a misdemeanor.
(c) Upon conviction for the above offense, the court may in addition to any other
sanction or condition of probation authorized by law, prohibit the defendant from
operating, being employed, volunteering or having afinancial interest in the medical
marijuana facility.
31.070. Unlawful Activity by Licensee.
(a) It shall be unlawful for a licensee to engage in a licensed activity, or to allow or
permit the licensee's employees or agents to engage in the licensed activity, in violation
of any applicable standard in the Chapter, or of any license issued pursuant to this
Chapter.
(b) A violation of this section is a misdemeanor.
(c) Upon conviction for the above offense, the court may in addition to any other
sanction or condition of probation authorized by law, prohibit the defendant from
operating, being employed, volunteering or having afinancial interest in the medical
marijuana facility.
31.075. Unlawful Engaging in Licensed Activity While License is Suspended or Revoked.
(a) It shall be unlawful for a licensee to knowingly engage in a licensed activity, or to
allow the licensee's employees or agents to engage in a licensed activity, when the license
has been suspended or revoked pursuant to this Chapter.
(b) A violation of this section is a misdemeanor.
(c) Upon conviction for the above offense, the court may in addition to any other
sanction or condition of probation authorized by law, prohibit the defendant from
operating, being employed, volunteering or having a financial interest in the medical
marijuana facility.
31.050. Standards of Operation. A medical marijuana facility must comply with the following
requirements, in addition to any other state or local requirements:
(a) Registration in good standing with the Oregon Health Authority as a medical
marijuana facility pursuant to state law, and compliance with all applicable laws and
regulations administered by the Oregon Health Authority for Facilities.
(b) The facility must meet applicable laws and regulations, including, but not limited to,
the building and fire codes and the Curbed Development Code.
(c) The facility must not be co -located on the salve unit of land or within the salve
building as a tobacco social or smoking club or as a marijuana social or smoking club.
(d) A facility may not be operated as a home occupation.
(c) A facility may not have a walkup window or a drive-through.
(f) Operating hours must be no earlier than 10:00 a.m. or later than 7:00 8:00 p.m. on the
same day.
(g) All persons allowed within the facility, except for the Chief, the Chief's designee, or
other members of law enforcement. must have a valid registry identification card, except
that a person who does not have a valid registry identification card but who is a parent or
legal guardian of a minor who has a valid registry identification card may accompany the
minor into the facility for the sole purpose of procuring the minor's medical marijuana.
(h) Minors that possess a valid registry identification card are allowed within afacility
only for the purpose of obtaining the minor's medical marijuana, but are only allowed in
the lobby or public area of afacility, and are prohibited from all areas where usable
Chapter 31 page 7 10/2014
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marijuana or immature plants are available for transfer to a patient or designated primary
caregiver.
(i) Facilities must maintain adequate outdoor lighting over each exterior exit.
Q) The facility must utilize an air filtration and ventilation system that confines all odors
associated with the facility to the facility premises.
(k) All products containing medical marijuana intended lobe ingested (i.e. edibles) must
be labeled with the product's serving size and the amour of tetrahydrocannabinol in each
serving.
(1) The facility must not manufacture or produce any extracts, oils, resins, or similar
derivatives of marijuana on-site and must not use open flames or gases in the preparation
of any products.
(m) The facility must provide for secure disposal of marijuana remnants or by-products;
marijuana remnants or by-products shall not be placed within the facility's exterior refuse
containers.
(n) All applicants, principals, persons with a financial interest, employees and volunteers
shall pass a criminal background check performed by the Salem Police Department.
31.085. Location
(a) A facility may only operate where retail use is permitted.
(b) A facility shall not be located:
(1) hn the Central Business Zoning District.
(2) Within a residence or mixed-use property that includes a residence.
(3) Within:
(A) 1000 feet of another licensed facility.
(B) 1000 feet from a public or private elementary, secondary or career
school, including any parking lot appurtenant thereto and any property
used by the school where minors and students routinely congregate.
(C) 500 feet of a public park or public playground. Public park means
all park land designated in the Salem Parks System Master Plan that is
open to the public. Playground means any outdoor facility (including
any parking lot appurtenant thereto) intended for recreation, open to the
public, and with any portion thereof containing three or more separate
apparatus intended for the recreation of children including, but not
limited to, sliding boards, swing sets, and teeterboards.
(D) 100 feet of a residentially -zoned property mnless the location of the
facility abuts a Major Arterial or Parkway, as those terms are defined by
the Salem Transportation System Plan, or
(F) 100 feet of a certified child care facility as determined by the Oregon
Department of Hunan Services.
(c) For purposes of subsection (b), all distances shall be measured from the property lite
of the affected property, (for example; a school) to the closest prim of the space occupied
by the facility.
(d) A change it use (including a rezone) to a neighboring property to a use identified it
this section after a license has been issued for a facility shall out result it the facility
being it violation of this section, nor shall it be grounds to refuse to renew a license.
31.090. Criminal Background Checks.
(a) All applicants, principals, employees, volunteers, and persons with a financial
interest in the facility must pass a criminal background check performed by the Chief.
(b) All employees or volunteers at a facility must, prior to beginning employment or
volunteering, pass a criminal background check as provided in this section.
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(c) A conviction for any felony or drug related misdemeanor within 15 years of the date
of the application for a license, or release from incarceration for any felony within 10
years of the date of application for a license, shall result in a failure of the criminal
background check.
31.095. Inspection.
(a) Facilities shall be open for inspection and examination by any police officer or Fire
Code Official of the City during all operating hours.
(b) The Chief may investigate all applicants, principals, employees, volunteers, and
persons with a financial interest in the facility, and may inspect licensed facilities.
Nothing in this subsection is intended, or shall be construed, to limit the authority of the
Chief, the Chief's designee, or members of the Salem Police Department from
investigating crimes or otherwise performing their duties as assigned.
31.100. Examination of Books, Records, and Premises.
(a) To determine compliance with the requirements of any and all applicable laws and
regulations, the Chief, or the Chief's designee, may examine a facility, including
wastewater from the facility, and any and all facility financial, operational, and facility
information, including, but not limited to, video surveillance recordings, books, papers,
payroll reports, and state and federal income tax returns. Every facility is required to
famish to the Chief the means and opportunity for such examinations.
(b) The Chief may require an audit to be made of the books of account and records of a
facility on such occasions as the Chief may consider necessary. Such audit may be made
by an auditor to be selected by the Chief that shall likewise have access to all books and
records of the facility.
(c) As part of investigation of a crime or a violation of this Chapter which law
enforcement officials reasonably suspect has taken place on the facility's premises, the
Chief or his or her designee shall be allowed to view surveillance videotapes or digital
recordings at any reasonable time.
(d) Without reducing, limiting, or waiving any provision of this Chapter, the Chief shall
have the same access to the facility, its records, and its operations, as allowed to state
inspectors.
31.105. Confidentiality. Except as otherwise required by law, it shall be unlawfid for the City, any
officer, employee, or agent to divulge, release, or make known in any manner any financial or
employee information submitted or disclosed to the City under the terns of this Chapter. Nothing in
this section shall prohibit:
(a) The disclosure of licensee names and facility addresses.
(b) The disclosure of general statistics in a form which would prevent identification of
financial information regarding a facility.
(c) The presentation of evidence to a court, or other tribunal having jurisdiction in the
prosecution of any criminal or civil claim, by the City.
(d) The disclosure of information upon request of a local, state, or federal law
enforcement official.
(c) The disclosure of information when such disclosure is ordered under the Oregon
Public Records Law.
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ORDINANCE NO. 2015-02
AN ORDINANCE AMENDING CHAPTERS 17.10, 17.44, AND 17.50 OF THE SANDY - -
MUNICIPAL CODE, RELATED TO MEDICAJ, MARIJUANA FACILITI VS AND
DECLARLNGAN EMERGENCY.
Whereas, Chapter 17 10, Definitions contains a definition fat Medical Facility specifically excluding
Medical Marijuana Facilities;
Whereas, Suctions 17 44.20(B) and 17 50.20(8) specify those Lacs rcquiling Conditional Use Permit
review prior to approval in the C-2, Crencral Connnercial and I-2, Light Industrial Zoning Dishicts;
Whereas, Ordinance No. 2014-03 adopted by City Council January 21, 2014, effectively prohibits
medical marimona facilities;
Whereas, the Sandy Development Code currently lists "medical facility" as a permitted use and
provides a de5nilinn, but does not list `medical marijuana facility" or provide a definition for such use;
Whereas, the addition of medical marijuana. facilities as a conditional use in the C-2 and 1-2 zones
ordinance will only apply if the Sandy City Council repeals Ordinance No. 2014 03;
Whereas, although state law currently limits medical marijuana facilities from Locating within 1000 d,
of another facility and 1000 ftfrom schools, the Sarrdy City Council wants to further limit these
facilities from locating within I000 ft. of a preschool and a day care facility, places where children
congregate;
Whereas, if the council repeals Ordinance No. 2014-03 in the fume, medical marijuana facilities
(authorized by state law) will he permitted as a conditional use in the C-2 and 1-2 Zoning Districts and
no other zones.
NOW, Im 1,REFORE, THE CLOY OF SANDY ORDAINS AS FOLLOWS:
Section l: 17.10.030 of the Sandy Municipal Code shall he anrended to add a definition for "1Je& 1
Marijuana Facility" as follows:."A lacil rreeistered by the Or -ion H alth Authority that is
Section 2. 17.10.030 of the Sandy Municipal Code shall be amendedto add-adoffnition for'Presc
as follows: "A faeili iding car for ehildreu 3fi months. of ane to school nee That is
Section 3: The definition for "Day Care Facility found in 17.10.030 of the Sandy Municipal -Code "Day.
Cue Facilitv" shal I he replaced with the following language: °A childcare facility certified -
CAP081315 Page 138
Section 4: Chapter 17 44, Genera Commercial, Section 17.44.20(B) of d6 Sandy Municipal Code shall.
be amended In add "Medical marijuana facility as a Conditional i Ise as follows:
B. Conditional Uses. -
1. Buildings designed for one or more occupants wilh morc dent 60,000 square $: of
gross floor area; -
2. Major public facility;
3. _Medical III facility
3 4, Planned unit developments, including but not limited, to single-family attached and
.detached residential and multi -family dcvcloprnents, in conjunction with recreation or
supportive commercial facilities. Residentisl uses are limited to a maximum of 50 %
of the total grass acreage',
4, 5. Traveler accommodation facilities including campgrounds, overnight travel parks,
and recreational vehicle parks;
-5, 6. Other uses similar in nature. - - -
SectionS: Section 17.44.30 shall be amendedto create anew snbseclion (C) as follows: Sgecial
Rcquircnents for Medical Marijua at�ities
AniedicaL mariinunn facility shall he further restricted as ibllows'
L h add-ilion to ,Q it e enmrilianee with all State resluircmonts a medical nlariivana
c'lii shall also be located at least 1 -ODD feet from
of the following uses' another
111gdieshanrij Llan facilitya K 12 school- a nreschoeI and a dxv care facility:
2. Tll addition to the reclUnctncuts of ('banter 17 22 No4ees notice shall be provided to
property owners wilhin 1 COC feet excluding streetricht-of--way- of ttw builr)iug or
Selo anent sit � of the tnnonsed medical mariinana fsihtl l -
3. ,IToms of oporalion shall be limited to between 10 a m and $,p.m:
4. Entrances and off-sheetDade ng areas shall be well lit and no[visaal(v obscured from
nubtic view --
SectjmL Chapter 17.50, Light Industrial, Section 17.50,20(B) of the Sandy Municipal Codc shall be
amended to add `iMeclical marijuana facility" as follows: -
B. _Conditional Uses:
1, Automotive fueling station; -
2. Concrete or asphalt hatch plant;
_ 3. Convenience market/store of less than 2,500 gross squuc Pccl
4. Drive-up/drive-in/drive-thi ough (drive -up windows, kiosks, ATM, restaurants, car
wash, quick vehicle servicing, and similar uses);
S. Major public facility;
6. Medical mariinana
CAP081315 Page 139
6. 7. Stand-alone retail uses of less than 5,000 gross square fcct
7: 8.Other uses similar in nature,
Suction 7', Section 17.50.40 anal I he mnended to create a new quhsection.(D) as follows-
, Reouireagents for Medical Marijuana Facilities
A medical mnrjuana facility shall be fitrlh-r restrictedas follows.;...
I. In addition Lo emnnliarree with all Slab rceuElements for Iocali nn a medical mariivann
facility sh,ll also be located at least1 000 feet frmn all ofthe follnwine-,,, _ another .
a ...., rt -r 9 —T—A a ora ccbnnl and a d 9 care facility:
2. Ire addiront the requirements yf Chanter 17.22_ Notices, notice shall ne nrovided to
pier lger(y owners within 1,000 feel cxcludine street rich[-of-vrav_ of the hail 'n r
development site confainine the proposed medical mariivann Built
3. HQ= of operation shut be limited to hotween 10 a m and 8 p.mr:
4, Entrances and off,h eet uarlcine areas shall be wet l lit and not visually obscured from
lic view[
Section S- All preschools, K-12 schools and day care facilities, in addition to other requirements the
development code imposes on these uses, must locate at: least 1000 feet from any medical
n oiijuana facility authorized pursuant to the cicvcloprnent code and state law. Distances are
measured by a straight line between any point on the boundary line of the real property
_ ..containing the medical inadjuana facility to any point on the boundary line of the real
...,property containing the school, preschool or day care facility. Subject to Section 0 of this .
ordinance, the council authorizes the city marrager or his designee to codify these restrictions
on preschools, K-12 schools and day care facilities by adding consistent language in the -.
development code.
.Section 9: A medical marijuana facility will only exist as a conditional use in the C-2 and 1-2 zoning -
distriets and no other zoning districts if the city council repeals Ordinance No. 2014-03..
Therefore_ the amenchriMs in Sections 1 - 8 of this ordinance will only be effective if -.
Ordinauce No. 2014-03 is repealed and the amendments willnot be codified until that -tune.
Section 10: Findings supporting this ordinance are attached as Exhibit A. -
Section ll: A l l remaining provisions of the Sandy Comprehensive •Plan and Title 17 of die Sandy - - -
Municipal Code are rcaffrmred in their entirety.
Section 12: In. order to protect the peace, health and welfare of the City..of.Sandy, its residents and its -- .
visitors, the city council declares the existence of an emergency and, therefore, this
ordivauce is effective im mediately upon its enactment by the council.
CAP081315 Page 140
TINS ORDINANCE IS ADOPTED BY TIIE COMMON COUNCH, A ND APPROVED BY THE
MAYOR THIS 6th DAY OF APRIL, 2015.
i
Witham Kin t
Mayor
ATTEST:
Lisa Young - -
City Recorder
Return to Agenda
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