HomeMy WebLinkAbout09-26-16 Meeting
EUGENE CITY COUNCIL AGENDA
September 26, 2016
7:30p.m.CITYCOUNCILMEETING
HarrisHall,125East8Avenue
th
Eugene,Oregon97401
MeetingofSeptember26,2016;
HerHonorMayorKittyPiercyPresiding
Councilors
7:30p.m.MEETINGOFTHEEUGENECITYCOUNCIL
Avenue
HarrisHall,125East8
th
1.PUBLICFORUM
2.CONSENTCALENDAR
(Note:Timepermitting,actionontheConsentCalendarmaybetakenatthe5:30
p.m.worksession.)
A.ApprovalofCityCouncilMinutes
B.ApprovalofTentativeWorkingAgenda
C.AppointmenttoToxicsBoard
3.ACTION
AResolutionAnnexingLandtotheCityofEugene(Cowan,Doug;A166)
4.ACTION
AnOrdinanceExtendingtheRentalHousingCodeSunsetDateand
ProvidingforanEffectiveDate
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5.ACTION
AResolutionAuthorizingtheInstitutionofProceedingsinEminentDomain
fortheAcquisitionofPropertyInterestsfortheCommerceStreet
ConnectorPathandBridgesProject
6.ACTION
AResolutionDeclaringtheCityof%´¦¤¤Ȍ²SupportoftheStandingRock
Sioux4±¨¡¤Ȍ²OppositiontotheConstructionoftheDakotaAccessPipeline
7.WORKSESSION
UseofMarijuanaTaxFundsandRetailCannabisRegulations
¶¶¶ȁ¤´¦¤¤®±ȁ¦®µȁ
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ATTACHMENTA
MINUTES
EugeneCityCouncil
HarrisHall,125East8Avenue
th
Eugene,Oregon97401
September12,2016
5:30p.m.
CouncilorsPresent:
CouncilorsAbsent:
WORK SESSION: City Council Process Session
A.
City Manager’s Office Division Manager Mia Cariaga and Council Support Manager Beth
Forrest gave a PowerPoint presentation discussing the new webcast updates, public records
request process, and potential new ways to produce meeting minutes.
Council discussion:
It is wise to keep a back-up of a verbatim transcript.
A transcript is not more helpful than the video; ideal is more detailed, synthesized minutes.
Goal is to provide something that all can access; promote transparency.
Minutes are not just for council but for the public, too; video hasn’t worked well at all.
No decision should be made until the new webcast system has been tested.
Editing the video with time-stamp and key word search functionality would be helpful.
Goal should be to use most sustainable method possible.
B. CONSENT CALENDAR
MOTION AND VOTE:
Councilor Evans, seconded by Councilor, moved to approve the items on
PASSED 7:0
the Consent Calendar, except item E.
Council discussion:
Spending City funds on oversea travel is not appropriate at this time.
Official participation in these is a small contribution to international relations.
VOTE ON ITEM E: PASSED 6:1
, Councilor Poling opposed.
MINUTES – Eugene City Council September 12, 2016 Page 1
Work Session and Meeting
MINUTES
EugeneCityCouncil
HarrisHall,125East8Avenue
th
Eugene,Oregon97401
September12,2016
5:30p.m.
CouncilorsPresent:
CouncilorsAbsent:
1. CEREMONIAL MATTERS
The Eugene Public Works Department was honored for being reaccredited by the American
Public Works Association.
2. PUBLIC FORUM
1. Kathy Lynn – Supported a resolution opposing the Dakota Access Pipeline.
2. Eva Winter – Supported improvements and other resources for Amazon Pool.
3. Cindy Koehler – Supported a living wage ordinance for the City of Eugene.
4. Thomas Brown – Supported a living wage ordinance for the City of Eugene.
5. Bob Cassidy – Supported a living wage ordinance for the City of Eugene.
6. Jennifer Frenzer-Knowlton – Supported a resolution opposing the Dakota Access Pipeline.
7. Joan Cypress – Supported bringing back the Eugene Celebration Parade.
8. Leigh Anne Jasheway – Supported bringing back the Eugene Celebration Parade.
9. Laurie Powell – Supported the climate recovery ordinance and action.
10. Bob Doppelt – Supported no-bikes policy on the Ridgeline trail between Fox Hallow and Dillard.
11. Cliff Gray – Supported a living wage ordinance for the City of Eugene.
12. Kristy Murray – Supported a living wage ordinance for the City of Eugene.
13. David Piccioni – Supported a living wage ordinance for the City of Eugene.
14. Lonnie Douglas – Supported a living wage ordinance for the City of Eugene.
15. Dharmika Henshel– Supported a resolution opposing the Dakota Access Pipeline.
16. Charlie Swanson – Supported a living wage ordinance for the City of Eugene.
17. Carol Scherer – Supported a living wage ordinance for the City of Eugene.
18. Ada Ball – Supported a resolution opposing the Dakota Access Pipeline.
19. Sue Sierralupé – Gave an update on Occupy Medical and their outreach to the community.
20. Mia Saenger – Supported improvements and other resources for Amazon Pool.
21. Misa Joo – Supported a resolution opposing the Dakota Access Pipeline.
22. Terry Roy- Reported there were inconsistencies with annexation letters sent to residents.
23. Joe Tyndall – Said his free speech rights were infringed by the Police Commission.
24. Stefan Strek – Said there are too many taxes in the city and global warming isn’t real.
25. Lisa Lombardo – Supported a resolution opposing the Dakota Access Pipeline.
MINUTES – Eugene City Council September 12, 2016 Page 2
Work Session and Meeting
Council discussion:
Council has the authority to reconsider the annexation passed earlier in the evening.
Support expressed for bringing a resolution opposing the Dakota Access Pipeline to
council for consideration.
4. PUBLIC HEARING
An Ordinance Extending the Rental Housing Code Sunset Date and Providing For an
Effective Date
1. Norton Cabell – Housing Policy Board supports the extension of the sunset date.
2. Susan Connolly – Opposed to extension of the sunset date and the rental code.
3. Dennis Casady – Opposed to extension of the sunset date and the rental code.
4. Robin Bloomgarden – Opposed to extension of the sunset date and the rental code.
5. Brian Cox – Opposed to extension of the sunset date and the rental code.
6. Rick Williams – Supported the extension of the sunset date and keeping the rental code.
7. Tasha Briquet – Supported the extension of the sunset date and keeping the rental code.
Council discussion:
The main issue is the surplus fund that are collected; need to review costs.
This is a reasonable and valuable program.
Education awareness campaign for this program needs to be looked at.
Renter protections are important; also need to ensure the ordinance is working correctly.
Investigate possibility of reducing fees for landlords who have a good track record.
MINUTES – Eugene City Council September 12, 2016 Page 3
Work Session and Meeting
ATTACHMENTB
MINUTES
EugeneCityCouncil
HarrisHall,125East8Avenue
th
Eugene,Oregon97401
September14,2016
12:00p.m.
CouncilorsPresent:
CouncilorsAbsent:
1.WORKSESSION:ReconsiderationofResolutionAnnexingLandtoCityofEugene
MOTIONANDVOTE:
PASSED6:0
(CouncilorEvansabsentforvote)
MOTIONANDVOTE:
PASSED7:0
2.WORKSESSION:PoliceAuditorandCivilianReviewBoardAnnualReports
3.WORKSESSION:UseofMarijuanaTaxFundsandRetailCannabisRegulations
MINUTES – Eugene City Council September 14, 2016 Page 1
Work Session
MINUTES – Eugene City Council September 14, 2016 Page 2
Work Session
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ISSUESTATEMENT
BACKGROUND
RELATEDCITYPOLICIES
COUNCILOPTIONS
CITY-!.!'%2Ȍ3RECOMMENDATION
SUGGESTEDMOTION
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ATTACHMENTS
FORMOREINFORMATION
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SEPTEMBER 26 MONDAY
5:30 p.m. Council Work Session
Harris Hall Expected Absences:
7:30 p.m. Council Meeting
Harris Hall Expected Absences:
SEPTEMBER 28 WEDNESDAY
Noon Council Work Session
Harris Hall Expected Absences:
OCTOBER 10 MONDAY
5:30 p.m. Council Work Session
Harris Hall Expected Absences:
7:30 p.m. Council Meeting
Harris Hall Expected Absences:
OCTOBER 12 WEDNESDAY
Noon Council Work Session
Harris Hall Expected Absences:
OCTOBER 17 MONDAY
7:30 p.m. Council Public Hearing
Harris Hall Expected Absences:
OCTOBER 19 WEDNESDAY
Noon Joint Work Session w/Lane County
Harris Hall Expected Absences:
A=action; PH=public hearing; WS=work session
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OCTOBER 26 WEDNESDAY
Noon Council Work Session
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NOVEMBER 9 WEDNESDAY
Noon Council Work Session
Harris Hall Expected Absences:
NOVEMBER 14 MONDAY
5:30 p.m. Joint Work Session w/Lane County
Harris Hall Expected Absences:
7:30 p.m. Council Meeting
Harris Hall Expected Absences:
NOVEMBER 16 WEDNESDAY
Noon Council Work Session
Harris Hall Expected Absences: Evans, Taylor
NOVEMBER 21 MONDAY
7:30 p.m. Council Public Hearing
Harris Hall Expected Absences:
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NOVEMBER 30 WEDNESDAY
Noon Council Work Session
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DECEMBER 12 MONDAY
5:30 p.m. Council Work Session
Harris Hall Expected Absences:
7:30 p.m. Council Meeting
Harris Hall Expected Absences:
DECEMBER 14 WEDNESDAY
Noon Council Work Session
Harris Hall Expected Absences:
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5:30 p.m. State of the City
Hult Center Lobby Expected Absences:
JANUARY 11 WEDNESDAY
Noon Council Work Session
Harris Hall Expected Absences:
JANUARY 17 TUESDAY
7:30 p.m. Council Public Hearing
Harris Hall Expected Absences:
JANUARY 18 WEDNESDAY
Noon Council Work Session
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JANUARY 23 MONDAY
5:30 p.m. Council Work Session
Harris Hall Expected Absences:
7:30 p.m. Council Meeting
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JANUARY 25 WEDNESDAY
Noon Council Work Session
Harris Hall Expected Absences:
FEBRUARY 8 WEDNESDAY
Noon Council Work Session
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FEBRUARY 13 MONDAY
5:30 p.m. Council Work Session
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7:30 p.m. Council Public Hearing
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FEBRUARY 22 WEDNESDAY
Noon Council Work Session
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FEBRUARY 27 MONDAY
5:30 p.m. Council Work Session
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7:30 p.m. Council Meeting
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MARCH 8 WEDNESDAY
Noon Council Work Session
Harris Hall Expected Absences:
MARCH 13 MONDAY
5:30 p.m. Council Work Session
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7:30 p.m. Council Meeting
Harris Hall Expected Absences:
A=action; PH=public hearing; WS=work session
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ON THE RADAR
Work Session Polls/Council Requests Status
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ISSUESTATEMENT
Due to a June 30, 2016 term expiration, Advocacy Position 4 on the Toxics Board is currently vacant.
The City Council will consider the appointment of one member to this position on the Toxics Board.
BACKGROUND
The Eugene Toxics Right-to-Know Program was created and adopted by citizen initiative in November
1996, and is governed by Section 54 of the Eugene City Charter. It requires that businesses meeting
certain criteria report their hazardous substance use to the City, that the City make that information
public, and that hazardous substance users pay fees as necessary to operate the program.
The City Council appoints a board of seven people to oversee the program, provide policy direction, and
serve as an advisory board: three members are employed by or are agents of businesses required to
report; three members have a demonstrable record of advocating for the public’s right-to-know; and one
member is neutral.
The recruitment process to fill the vacancy of Advocacy Position 4 on the Toxics Board was included in
the City’s 2016 Boards, Committees and Commissions annual recruitment process, which, concluded on
April 8, 2016. However, no applications were received for this position. Therefore, a special recruitment
process was run to fill this position as soon as possible. As a result, the City received two applications
for this position. The Toxics Board conducted interviews on August 24, 2016 for which one of the
candidates did not show up. Based upon the information in his application and his responses to the
interview questions, the Toxics Board voted 4:1 (with one member voting in opposition) to recommend
that Jason Ormsby be appointed to Advocacy Position 4 on the Toxics Board.
RELATEDCITYPOLICIES
The Eugene Toxics Right-to-Know Program relates to the following Eugene City Council Goals and
Outcomes: Sustainable Development; and Effective, Accountable Municipal Government.
The Toxics Board provides policy direction on the Eugene Toxics Right-to-Know Program, and serves
as an advisory board to the City Council, working under the Eugene City Charter Section 54
(Amendment IV).
J:\\CMO\\2016 Council Agendas\\M160926\\S16092
62C.docx
COUNCILOPTIONS
1.Appoint Jason Ormsby to Advocacy Position 4 on the Toxics Board.
2.Decide not to appoint Jason Ormsby to Advocacy Position 4, and provide other direction.
CITY-!.!'%2Ȍ3RECOMMENDATION
The City Manager and the Toxics Board recommend the appointment of Jason Ormsby to Advocacy
Position 4 on the Toxics Board.
SUGGESTEDMOTION
Move to appoint Jason Ormsby to Advocacy Position 4 on the Toxics Board, effective immediately, and
for the remainder of a three-year term ending June 30, 2019.
ATTACHMENTS
A. Application of Jason Ormsby
B. Application of Camila Alvarez
C. Current Toxics Board Roster
FORMOREINFORMATION
J:\\CMO\\2016 Council Agendas\\M160926\\S1609262C.docx
Santa Clara Community Organization
3yrs, 10mos
A
ATTACHMENT
chemical wastes at sites throughout Europe and the Middle
9167473255
jason.l.ormsby@gmail.com
As Lab Coordinator for UMUC Europe, I had to manage
Science Faculty Advisor and Laboratory Coordinator -
If so how long?
Instructor, Physiological Biochemistry - University of
Assistant Professor, Biology and Chemistry - UMUC
(and improve) disposal practices for biological and
East, which were subject to varying regulations.
Web Site
Day Phone
Y
Do You Live within the City Limits?NeighborhoodHow did you learn of this vacancy?
9167473255
E-Mail
Description
Personal Experience
Job Experience
Evening Phone
UMUC Europe
N
Employer
7
Oregon
Disability
Europe
Ward
Fax
Interested Applicants
White/European
Ph.D. in Organic Chemistry, University of Nevada, Reno, Previously: volunteered for the Veterans Legal Clinic with Currently: Precinct Committee Person for the Democratic
B.A. in Molecular, Cellular, and Developmental Biology,
J.D. University of Oregon, School of Law, August 2016
Party of Lane County, volunteering for various events
American
Law Student graduating Aug 2016
University of California, Santa Cruz, June 2000
English
Ethnicity
InterestedApplicants
7/6/2016 9:01:00 AM
4623 Champagne Ln
Additional Languages spoken
Eugene OR 97404
Jason L. Ormsby
Community Service / Volunteer
36-45
Age
Education / Training
Optional Information
Business Address
and campaigns.
Access the Law
M
Toxics Board
(anticipated)
Page 14 of 16
Gender
Occupation
May 2008
Address
Name
law. Greater access to information opens the possibility for misunderstandings. With my interdisciplinary background contributions I can make to the Board are (1) a context for
regulatory compliance and (2) the ability to communicate
democracy, I am a strong proponent of the right-to-know same time, I am also cognizant that data and information
expertise in science and law. As a subscriber to the well-
greater individual and community empowerment. At the
supplied without a context to understand or synthesize
substantiated belief that transparency is necessary for
and experience teaching, I think the two most valuable
allows members of the general public to make decisions based upon their personal understanding of relative risks
awareness of practices and potential exposures in Eugene and accountability for hazardous waste users. The first
this context to interested members of the public in a
I believe I can contribute to the Board a synergistic
I have read the law in its entirely and am practiced in statutory interpretation. It appears to facilitate both public
understanding the scientific data as it pertains to
while the second allows for protection of the general public irrespective of individual concern or action.
them can lead to sometimes costly public
conceptually accessible way.
Contribution
Please explain your understanding of Eugene's right-to-know law.
Interested Applicants
As a scientist, I was always concerned by the lack of data drove me to law school, seeking a path to bridge the gap socioeconomic justice. Simultaneously, to help facilitate progress
in those areas, I also work to improve science The Toxics Board is the perfect venue for me to apply my thoroughly understand the science and can interpret the (MSDSs). As a nigh law
graduate, I am also quite familiar balancing of factors necessary for policy formation, and the practical considerations when implementing policy to develop standard practices. For
these reasons, I believe I could bring to the Board a perspective that is both broad
data as it relates to potential harms. I am, for instance,
legislation.More than a passing concern, it eventually
well acquainted with Material Safety and Data Sheets
between science and law. In general, my goals are to
contribute to sustainable development (which, in my
with statutory construction and interpretation, the
interdisciplinary background to serve the public. I
mind, includes environmental preservation) and
and evidence in the shaping of policy and
InterestedApplicants
7/6/2016 9:01:00 AM
and, hopefully, insightful.
Personal Interest
Page 15 of 16
literacy.
1
How would you work to make decisions as a board member given that there may be persons on the board whose views are methodology for expanding the pie to provide value for and gain invested
interest from all adherents to a negotiated As a law student, much of my education centered around understanding the interests in and consequences of policy evidence-based practices.
Every new law is, essentially, an experiment. The key is to be responsive by collecting data I am applying for the Toxics Board because I want to use my interdisciplinary background
to provide public service in the conceptual spaces where scientific understanding is imperative for developing and implementing rational policy I am well versed in both chemistry and
biology, having taught both at the university lever for years. This allows me to
and regulations. The Toxics Board is a perfect example of the inextricable overlap of science and law, so it naturally
I have experience working with multiple players to build consensus. Not all players must share interests to arrive at
Access to information is essential, even to a fault, i.e. even if that information is difficult to interpret and can lead to
costly misunderstanding. The first step is ensuring public access to information, and the second step is providing
understand the chemical processes applied in industry and the risks posed to various organisms by the materials
In general, I believe public access to information correlates directly to the potential for realizing true democracy.
the same, mutually beneficial position. I've studied negotiation, and I am very much a proponent of the Harvard
that indicates effectiveness and consequence, interpreting that data, and addressing both ineffectiveness and
formation and implementation. As a scientist, I am experienced in research and data collection for developing
outcome. In short, I am confident in my ability to be diplomatic and constructive in the face of adversity.
Please describe your experience in the formation of or implementation of public policy and regulations.
Please describe your familiarity with chemical substances and processes used in manufacturing.
in direct opposition to yours? do you have any experience doing this? Please explain.
Why did you apply for the Toxics Board, and what do you hope to contribute?
Please describe your experience advocating for the public's right to know.
Interested Applicants
draws my interest as a place where I can be quite useful.
context for properly understanding that information.
FOR RIGHT-TO-KNOW ADVOCATES ONLY:
FOR RIGHT TO KNOW ADVOCATES ONLY:
used and produced in those processes.
InterestedApplicants
7/6/2016 9:01:00 AM
unintended consequences.
Page 16 of 16
23456
B
ATTACHMENT
I am passionate person who wants to be involved so I can educate the public and help make critical decisions. I care
Graduate Research Assistant at the Labor and Education
camila.h.alvarez@gmail.com
4
7024163125
about well-being of communities and the environment.
If so how long?
Amazon Neighbors
Research Center at the University of Oregon
Day Phone
Friend
Y
Do You Live within the City Limits?NeighborhoodHow did you learn of this vacancy?
7024163125
E-Mail
Description
Personal Experience
Job Experience
Evening Phone
N
Employer
2
Spanish
Disability
Ward
Fax
Interested Applicants
University of Nevada, Las Vegas--B.A. Sociology, magna Graduate Teaching Fellows Federation Executive Board MEChA (Movimiento Estudiantil Chicano de Aztlán) (2013
Graduate Teaching Fellows Federation Department
University of Oregon—PhD candidate in sociology
Hispanic
University of Oregon--M.S. Sociology (2012-2014)
cum laude; B.A. Mathematics (2007-2012)
English
Ethnicity
5/25/2016 8:38:41 AM
2250 Patterson St #87
InterestedApplicants
Additional Languages spoken
Camila H. AlvarezEugene OR 97405
graduate student
Community Service / Volunteer
26-35
Steward (2013-2015)
Age
Education / Training
Optional Information
Business Address
F
Toxics Board
(2015-2016)
Gender
Occupation
(present)
Page 1 of 3
Address
-2015)
Name
personal life I have engaged in various working teams from research projects to union organizing. I have experience in Working on a board can be stressful because people come voices
and passions. When I work in group, I always make sure to listen before speaking. I especially use this skill in Finally, I bring leadership to the board. With my leadership, about
issues around racial equity among our members. As
from different backgrounds. Also, everyone has different
sometimes missing. I do take that role when necessary.
Recently, I have been pushing my local union to think
a Latina, I know I have to bring a voice to table that is
I bring organization and communication to meetings.
The three qualities I bring to the board is experience,
patience, and leadership. Through my academic and
union tasks because it is important to make sure
working with diverse teams.
everyone’s voice is heard.
Contribution
Interested Applicants
My personal interests are social justice and education. I am applying for the board so I can become more involved advocate, I want to push for more equity in our city. I also care deeply
about education. At the University of Oregon,
things we study in the classroom to our everyday lives.
As a member of board, I will push for social justice and
I study environmental justice and I want to apply the
in Eugene's Right to Know law. As a social justice
5/25/2016 8:38:41 AM
InterestedApplicants
Personal Interest
education.
Page 2 of 3
How would you work to make decisions as a board member given that there may be persons on the board whose views are environmental justice so I want to apply what I have learned in school
to the real world. I contribute a critical eye and
Eugene's Right-to-know law gives citizens the right to know about hazardous materials in their area. The way this is
On the board, I plan to have an open about motions. However, I will consider possible factors such as equity and
realism. I have experience from working on the executive board for graduate employee union at the University of
I do not have experience in formation or implementation of public policy and regulations. However, I am eager to
done is by having facilities report chemicals listed on various policies (such as Clean Air Act, Clean Water Act,
I am applying to the Toxics Board to become more involved in public policy and regulation. I do research in
Please describe your experience in the formation of or implementation of public policy and regulations.
Oregon. I am aware meetings have different voices and are long. I am prepare to go through that.
Please describe your familiarity with chemical substances and processes used in manufacturing.
I am confident I can understand chemical substances and processes used in manufacturing.
in direct opposition to yours? do you have any experience doing this? Please explain.
I don't have experience advocating public's right-to-know, but I am eager to learn.
Why did you apply for the Toxics Board, and what do you hope to contribute?
Please describe your experience advocating for the public's right to know.
Please explain your understanding of Eugene's right-to-know law.
Interested Applicants
FOR RIGHT-TO-KNOW ADVOCATES ONLY:
FOR RIGHT TO KNOW ADVOCATES ONLY:
5/25/2016 8:38:41 AM
InterestedApplicants
Conversation and Recovery Act).
research background.
Page 3 of 3
learn.
123456
ATTACHMENT C
EUGENE TOXICS BOARD ROSTER
MEMBERORGANIZATIONCONTACT NO. EMAIL ADDRESS
Position 1 (Industry):
Derrick Thoma
Hop Valley Brewing 541-517-9485derrick.t@hopvalleybrewing.com
Second Term
Expires 06-30-19
Position 2 (Industry):
Vacant
First Term
Expires 06-30-17
Position 3 (Industry):
Marcus Baxter
Aurora Innovations 541-513-4464mbaxter@aurorainnovations.com
First Term
Expires 06-30-18
Position 4 (Advocacy):
Vacant
First Term
Expires 06-30-19
Position 5 (Advocacy):
Lisa Arkin
Beyond Toxics 541-465-8860larkin@beyondtoxics.org
Second Term
Expires 06-30-17
Position 6 (Advocacy):
Evan Shenkin541-579-1207eshenkin@uoregon.edu
First Term
Expires 06-30-18
Position 7 (Neutral):
Andree Phelps
541-221-1431a_pinnell@hotmail.com
First Term
Expires 06-30-17
Program Manager
Jo EppliEugene Springfield Fire 541-682-7118joann.c.eppli@ci.eugene.or.us
st
Chair Rotates on July 1 each year
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
July 1, 2016–June 30, 2017
Chair: Lisa Arkin
Vice Chair: Andree Phelps
Updated: June 14, 2016
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ISSUESTATEMENT
BACKGROUND
J:\\CMO\\2016 Council Agendas\\M160926\\S1609263.doc
RELATEDCITYPOLICIES
COUNCILOPTIONS
CITY-!.!'%2Ȍ3RECOMMENDATION
SUGGESTEDMOTION
J:\\CMO\\2016 Council Agendas\\M160926\\S1609263.doc
ATTACHMENTS
FORMOREINFORMATION
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Cowan, Doug (A 16-6)
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Exhibit C
Planning Director's Findings and Recommendation
Annexation Request for the Doug Cowan Property
(City File A 16-6)
Application Submitted: June 29, 2016
Applicant: Doug Cowan, DSC Investment Trust
Property Included in Annexation Request: Tax Lot 100 17-04-14-44
Zoning: R-1 Low-Density Residential with /UL Urbanizable Lands Overlay
Location: 160 Howard Avenue; west of River Road, on south side of Howard Avenue
Surveyor: Dave Collier, Pacific Surveying
Lead City Staff: Erik Berg-Johansen, City of Eugene Planning Division, 541/682-5437
EVALULATION:
Based on the information provided by the applicant, the City has determined that this request complies with Eugene
Code (EC) Section 9.7805 Annexation - Applicability. As such, it is subject to review and approval in accordance with
the requirements, application criteria and procedures of EC 9.7800 through 9.7835. The applicable approval criteria
are presented below in bold typeface with findings and conclusions following each.
EC 9.7825(1)
(a) Contiguous to the city limits; or
(b) Separated from the city only by a public right of way or a stream, bay, lake or other body of water.
Complies Findings: The annexation area is within the City's urban growth boundary (UGB), and as
proposed, will be separated from the city only by a public right of way, consistent with
YES NO
subsection (b).
EC 9.7825(2) The proposed annexation is consistent with applicable policies in the Metro Plan and in any applicable
refinement plans.
Complies Findings: Several policies from the Metro Plan provide support for this annexation by
encouraging compact urban growth to achieve efficient use of land and urban service provisions
YES NO
within the UGB, including the following policies from the Growth Management section (in italic
text):
Policy 8. Land within the UGB may be converted from urbanizable to urban only through
annexation to a city when it is found that:
a.A minimum level of key urban facilities and services can be provided to the area
in an orderly and efficient manner.
b.There will be a logical area and time within which to deliver urban services and
facilities. Conversion of urbanizable land to urban shall also be consistent with
the Metro Plan. (page II-C-4)
Policy 10. Annexation to a city through normal processes shall continue to be the highest
priority. (page II-C-5).
Policy 15. Ultimately, land within the UGB shall be annexed to a city and provided with the
required minimum level of urban facilities and services. While the time frame for
annexation may vary, annexation should occur as land transitions from urbanizable
to urban. (page II-C-5)
Cowan, Doug (A 16-6) September 2016 Page 1
The Metro Plan designates the annexation area as appropriate for commercial use. The River
Road - Santa Clara Urban Facilities Plan (RR/SC UFP) is the adopted refinement plan for the
subject properties and also designates the area for commercial uses. The property is currently
zoned R-1/UL Low-Density Residential with a Urbanizable Land Overlay. The /UL overlay will be
automatically removed from the zoning following annexation approval.
With regard to applicable policies of the RR/SC UFP, the subject property is not within a defined
subarea.
the RR/SC UFP are directed at local government; however, the premise of these policies
(regarding the provision of urban services) is the assumption that the properties within the UGB
will be annexed.
As previously discussed in this subsection, and further detailed under subsection (3) below, the
proposed annexation is consistent with Metro Plan growth management policies and can be
served by the minimum level of key urban services. The annexation procedures beginning at EC
9.7800 are consistent with State law and therefore, as found throughout this report, the
annexation is consistent with State law.
Therefore, based on the findings above, the proposal is consistent with the applicable policies of
the Metro Plan and applicable refinement plan.
EC 9.7825(3) The proposed annexation will result in a boundary in which the minimum level of key urban facilities
and services, as defined in the Metro Plan, can be provided in an orderly, efficient, and timely
manner.
Complies Findings: Consistent with this criterion, the proposed annexation will result in a boundary in
which the minimum level of key urban facilities and services can be provided in an orderly,
YES NO
efficient, and timely manner as detailed below:
Wastewater
Public wastewater is available within Howard Avenue, via an 8-inch PVC pipe. The existing
residence is connected to the public system by a 4-inch service line per connection record no.
34910. The lien docket indicates that wastewater related assessments have been paid.
Stormwater
Public stormwater systems are not available to serve this property. The soil classification is Type
B, which typically indicates that good infiltration rates can be expected. Development proposals
must demonstrate consistency with flood control standards; on-site retention is a feasible option
for this site. Compliance with applicable stormwater development standards will be ensured at
the time of development.
Transportation
The property abuts Howard Avenue, a Lane County Road. Compliance with applicable street
standards will be ensured at the time of development.
Solid Waste
Collection service is provided by private firms. Regional disposal sites and the Short Mountain
Landfill are operated by Lane County.
Water and Electric
Eugene Water and Electric Board (EWEB) Water staff confirm that water and electric services are
available to the property.
Cowan, Doug (A 16-6) September 2016 Page 2
Public Safety
Police protection can be extended to this site upon annexation consistent with service provision
through the City. Fire protection will be provided by Eugene Springfiled Fire. Emergency medical
services are currently provided on a regional basis by the cities of Eugene and Springfield to
central Lane County and will continue in the same manner upon annexation.
Parks and Recreation
A minimum level of park service can be provided to the proposal area as prescribed in the Metro
Plan.
Planning and Development Services
Planning and building permit services are provided for all properties located within the urban
growth boundary by the City of Eugene. The Eugene Code, Chapter 9, will provide the required
land use controls for future development of the subject property upon annexation.
Communications
A variety of telecommunications providers offer communications services throughout the
Eugene/Springfield area.
Public Schools
The subject property is within Eugene School District 4J and is within the district boundary of
Howard Elementary School, Kelly Middle School, and North Eugene High School.
CONCLUSION:
Based on the above findings, information submitted to date, and the criteria set forth in EC 9.7825, the proposed
annexation is consistent with the applicable approval criteria. A map and legal description showing the area subject to
annexation are included in the application file for reference. The effective date is set in accordance with state law.
INFORMATION:
Upon approval of the annexation, the base zoning of R-1 Low-Density Residential will remain; however, the /UL
Urbanizable Lands overlay will be automatically removed from the annexation area. Please contact the Permit
Information Center, Planner-on-Duty at 682-5377 for more information.
Approval of this annexation does not relieve the applicant from complying with applicable codes and statutory
requirements.
Cowan, Doug (A 16-6) September 2016 Page 3
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ATTACHMENT A
RESOLUTION NO. ___
A RESOLUTION AUTHORIZING THE INSTITUTION OF
PROCEEDINGS IN EMINENT DOMAIN FOR THE ACQUISITION OF
PROPERTY INTERESTS FOR THE COMMERCE STREET
BICYCLE/PEDESTRIAN BRIDGE PROJECT.
The City Council of the City of Eugene finds that:
A.
The City Council has authority under provisions of the City Charter and applicable
state law to institute proceedings in eminent domain for the acquisition by condemnation of private
property for public purposes, including rights-of-way and easements for improvement projects.
B.
The Commerce Street bicycle/pedestrian connector path and bridges project (“the
Project”) is in the Central Lane Metropolitan Planning Organization (MPO) 2011 Regional
Transportation Plan, has been included in the Central Lane MPO Metropolitan Transportation
Improvement Program and is supported by transportation system plan policies. It was identified
as a needed project to provide a connection between the Fern Ridge shared use path and the West
th
11 Avenue commercial area in the vicinity of Commerce Street and the new West Eugene EmX
line.
C.
The Project requires acquisition of property rights owned by Philip L. and Joan C.
Marvin, and M3 Real Estate Development, LLC. Construction of the Project necessitates
acquisition of combined permanent easement rights of approximately .17 of an acre (which
includes the existing public utility easement and a private access easement that will be overlayed),
and a temporary construction easement area of approximately .5 of an acre, more particularly
depicted on Exhibit A attached to this Resolution.
D.
City staff has contacted the property owners and delivered an Offer to Purchase,
but an agreement has not yet been reached. Timely acquisition of the easement is necessary in
order to complete the Project.
E.
The public good realized from the project far outweighs any damage which the
property owner might sustain, particularly in light of the City’s obligation to provide just
compensation to the affected property owner.
Now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EUGENE, A
Municipal Corporation of the State of Oregon, as follows:
Section 1
. Based upon the above findings, the City Council of the City of Eugene declares
it necessary to acquire combined permanent easement rights of approximately .17 of an acre
(which includes the existing public utility easement and a private access easement that will be
Resolution - Page 1 of 2
overlayed), and a temporary construction easement area of approximately .5 of an acre, more par-
ticularly depicted on Exhibit A attached to this Resolution. The acquisition is necessary in order
to construct the Commerce Street bicycle/pedestrian connector path and bridges project in
accordance with the design prepared by the City Engineer and approved by the City Manager.
Section 2
. The City Council directs that the City Manager or the Manager’s designee shall
continue negotiations with the affected property owner to acquire the needed property interests
and, if necessary, institute proceedings in eminent domain for the condemnation of the real
property interests described in Section 1. At least 40 days prior to the filing of any action for
condemnation, the City Manager or the Manager’s designee shall make a written offer to the owner
or parties having an interest in the property of a stated amount as compensation therefore and for
any compensable damages to the remaining property.
Section 3
. The City Council further directs that the City Manager or the Manager’s
designee shall take steps to obtain for the City immediate possession of the real property interests
described in Section 1 if negotiations will delay the construction of the described improvement.
Section 4
. The City Council declares that the improvement described above is for a public
purpose, is necessary for the public welfare, is located in a manner which will be most compatible
with the greatest public good and the least private injury, and is authorized under the laws of the
State of Oregon and Charter and ordinances of the City of Eugene.
Section 5
. The City Council further declares that the real property interest described in
Section 1 shall be used by the City of Eugene for public purposes at the earliest possible date and,
in any event, no later than ten years from the date this Resolution is adopted by the Council.
Section 6.
This Resolution shall become effective immediately upon its adoption.
The foregoing Resolution adopted the 26th day of September, 2016.
______________________________________
City Recorder
Resolution - Page 2 of 2
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ATTACHMENT A
RESOLUTION NO. ______
A RESOLUTION DECLARING THE CITY OF EUGENE’S SUPPORT OF
THE STANDING ROCK SIOUX TRIBE’S OPPOSITION TO THE
CONSTRUCTION OF THE DAKOTA ACCESS PIPELINE.
The City Council of the City of Eugene finds that:
A.
The City of Eugene, Oregon, built upon the traditional homelands of the Kalapua
People, honors the inherent sovereignty of the nine federally recognized Tribal Nations in the State
of Oregon, as well as the sovereignty of indigenous peoples everywhere.
B.
On March 14, 2016, the City Council passed Resolution No. 5148, declaring the
second Monday of each October as Indigenous Peoples’ Day in the City of Eugene as an
opportunity to celebrate the thriving cultures and values of Indigenous Peoples of our region.
C.
The proposed Dakota Access Pipeline (DAPL) is a 1,168-mile, 30-inch diameter
pipeline being developed by Energy Transfer Partners and its affiliates, which would carry as much
as 570,000 barrels per day of Bakken crude from western North Dakota to Illinois.
D.
The DAPL would run across or beneath 209 rivers, creeks and tributaries, including
the Missouri River, which provides drinking water and irrigates agricultural land in communities
across the Midwest, serving nearly 10 million people.
E.
The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety
Administration has documented a yearly average of 560 pipeline leaks, ruptures and other serious
incidents spanning the last 20 years.
F.
The DAPL would also run through the ancestral lands and waters reserved for the
traditional use of the Standing Rock Sioux Tribe by the treaty of Fort Laramie, including the
Missouri River, burial grounds and gravesites, and other sacred sites of cultural, religious and
historical significance.
G.
The U.S. Army Corps of Engineers failed to consult with or obtain the free, prior
and informed consent of the Standing Rock Sioux Tribe as required by the Treaty of Fort Laramie
and by Executive Order 13175 before issuing a “Mitigated Finding of No Significant Impact” that
would result in an easement for horizontal drilling for the DAPL.
H.
The City Councils of Seattle, Washington; Portland, Oregon; St. Paul and
Minneapolis, Minnesota; the Northwest Affiliated Tribes comprised of 59 Nations; and nearly 200
other indigenous Nations in the U.S. and Canada, are among the governmental bodies that have
taken formal action to support the Standing Rock Sioux Tribe and oppose the DAPL.
Resolution - Page 1 of 2
NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EUGENE, a
Municipal Corporation of the State of Oregon, as follows:
Section 1
. The City Council declares its support of the Standing Rock Sioux Tribe’s
opposition to the construction of the Dakota Access Pipeline (DAPL) across the Tribe’s ancestral
lands, waters and sacred sites.
Section 2
. The City Council calls upon the United States and the Army Corps of Engineers
to obtain the free, prior and informed consent of the Standing Rock Sioux Tribe before taking any
action regarding the DAPL that would harm the Tribe’s ancestral lands, waters and sacred sites.
Section 3
. The City Council proclaims that October 10, 2016, this year’s Indigenous
People’s Day in the City of Eugene, will commemorate and support the Standing Rock Sioux
Tribe’s opposition to the Dakota Access Pipeline.
Section 4
. This Resolution is effective immediately upon its passage by the City Council.
The foregoing Resolution adopted the ____ day of ___________________, 2016.
________________________
City Recorder
Resolution - Page 2 of 2
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FORMOREINFORMATION
ATTACHMENTA
LEAGUE OF OREGON CITIES
LOCAL GOVERNMENT
REGULATION OF
MARIJUANA IN
OREGON
Published by the League of
Oregon Cities
Table of Contents
Introduction and a Word of Caution
..................................................................................................... 1
Home Rule in Oregon
.............................................................................................................................. 3
Federal Law
.............................................................................................................................................. 5
An Overview of Oregon’s Marijuana Laws
........................................................................................... 6
Oregon Medical Marijuana Act ............................................................................................................ 6
Recreational Marijuana ......................................................................................................................... 7
StateTaxation of Recreational Marijuana ............................................................................................. 7
Registration and License Types ............................................................................................................ 8
Early Sales of Recreational Marijuana ................................................................................................ 10
Is a Consolidated System on the Horizon? ......................................................................................... 10
Local Government Options for Regulation of Marijuana
.................................................................. 12
State Restrictions on the Location of Medical and Recreational Marijuana Activities ....................... 12
Medical Grow Sites and Recreational Producers ........................................................................ 12
Medical Processing Sites and Recreational Processors .............................................................. 13
Medical Marijuana Dispensaries ................................................................................................. 13
Wholesalers and Recreational Retailers ...................................................................................... 14
Compatibility with Local Requirements - Land Use Compatibility Statement (LUCS) ............ 14
Local Government Means of Regulation ............................................................................................. 15
Tax .............................................................................................................................................. 15
Ban on Early Sales ...................................................................................................................... 16
Ban on State-Registered and Licensed Activities ....................................................................... 16
Business License Ordinance ....................................................................................................... 18
Development Code...................................................................................................................... 18
Land Use Code ............................................................................................................................ 18
Time, Place and Manner Regulations ......................................................................................... 19
Appendix A: Early Sales Opt Out
........................................................................................................ 21
Appendix B: Opt Out by Voter Referral
............................................................................................. 24
Appendix C: Opt In by Voter Referral
................................................................................................ 31
Appendix D:Local Tax by Voter Referral
.......................................................................................... 38
Appendix E:Sample Time, Place and Manner Restrictions on Marijuana Businesses
.................. 45
Introduction and A Word of Caution
Introduction and
a Word of Caution
The League of Oregon Cities (League) has prepared this guide to assist cities in evaluating local
needs and concerns regarding medical and recreational marijuana, so that city councils can find
solutions that are in the best interests of their community. The League does not take a position
on which choices a city council should make. The League’s mission is to protect the home rule
authority of cities to make local decisions, and to assist city councils in implementing the
decisions they make, whatever those decisions might be.
The League published the first edition of this guide in the spring of
2015. Its original focus was regulation of medical marijuana under
The law with regard to local
the Oregon Medical Marijuana Act (OMMA). In November 2014,
government regulation of
Oregon voters adopted Measure 91, legalizing the growing,
marijuana is complex because it
distribution, possession and use of marijuana in certain amounts for
involves the interplay of state and
recreational (i.e. non-medical) personal use. In 2015, the state
federal law, and the law continues
Legislature passed four bills—HB 3400, HB 2041, SB 460 and SB
to evolve. At press time, there
844—which made comprehensive reforms to Measure 91 and the
were several court cases pending
OMMA and addressed issues of local control, taxation, and early
regarding the legal authority of
sales, among other things. All of those changes are now codified in
local governments to regulate, up
ORS 475B.
to and including prohibiting, the
operation of medical marijuana
Since that time, the Oregon Liquor Control Commission (OLCC),
facilities. The League will
the agency charged with implementing the recreational marijuana
continue to update its members
licensing process, and the Oregon Health Authority (OHA), the
as the law in this area changes.
agency charged with implementing the OMMA, have engaged in
rulemaking. In addition, in 2016, the Legislature once again
amended Oregon’s marijuana laws with the adoption of three additional pieces of legislation—
HB 4014 (Or Laws 2016, ch 24), SB 1511 (Or Laws 2016, ch 83), and SB 1598 (Or Laws 2016,
ch 23). Some of the changes made by those bills are discussed in more detail below.
All of those changes havemade it difficult for local government officials
to stay on top of this ever evolving regulatory landscape. Consequently,
The sample ordinance
the League has prepared this third edition of the guide, revising its
provisions included in this
regulatory guidance to reflect the latest statutory and administrative rule
guide are intended to be a
changes, as well as providing sample ordinance wording for both
starting point, not an ending
medical and recreational marijuanafacilitiesthat is consistent with those point, for any jurisdiction
considering taxing,
changes.Because most experts believe that the medical marijuana and
regulating or prohibiting
recreational marijuana systems will eventually merge, the sample
marijuana businesses.
ordinance provisions in this edition do not differentiate between medical
marijuana or recreational marijuana businesses and treats both the same
for purposes of regulating the time place and manner of those activities.
Local Government Regulation of Marijuana in Oregon League of Oregon Cities | 1
May 2016 (Third Edition)
Introduction and A Word of Caution
This guide begins by providing an overview of the source of local government authority—
Oregon’s constitutional home rule provisions. The guide then provides a brief explanation of the
status of marijuana under federal law, as well as a summary of Oregon’s marijuana laws, before
turning to a discussion of local control and options available for local governments. The guide
concludes with sample ordinances to use as a starting point if a city decides it wants to tax,
regulate or prohibit marijuana facilities.
It is important to note that this guide, although lengthy, is not intended to give exhaustive
treatment of every issuethat a city might face with respect to marijuana regulation. The
regulation of marijuana is becoming increasingly complex as the industry grows and evolves and
as the Legislature and state agencies adopt new laws and administrative rules. As such, this
guide and the sample wording that is attached serves as a starting point (not and ending point) for
local government officials to understand this topic so that eventuallythey can spot issues and
further analyze and develop local solutions.
This guide is not a substitute for legal advice
City councils considering taxing, regulating or prohibiting marijuana businesses should not rely
solely on this guide or the resources contained within it. Any city council considering any form of
regulation of marijuana should consult with its city attorney regarding the advantages,
disadvantages, risks and limitations of any given approach. Legal counsel can also assist a city in
preparing an ordinance that is consistent with existing ordinances and with a citys charter, and
advise on what process is needed to adopt the ordinance.
Local Government Regulation of Marijuana in Oregon League of Oregon Cities | 2
May 2016 (Third Edition)
Home Rule
Home Rule in Oregon
Any discussion of a city’s options for regulating anything that is also regulated by state law must
begin with a discussion of the home rule provisions of the Oregon Constitution, from which
cities derive their legal authority. 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 local ordinances
without having to obtain permission from the state.
The concept of home rule stands in contrast to a corollary principle known as Dillon’s Rule,
which holds that municipal governments may engage only in activities expressly allowed by the
1
state because municipal governments derive their authority and existence from the state. Under
Dillon’s Rule, if there is a reasonable doubt about whether a power has been conferred to a local
government, then the power has not been conferred. Although many states follow Dillon’s Rule,
Oregon does not.
Instead, a city government in Oregon derives its home rule authority through the adoption of a
home rule charter by the voters of that community pursuant to Article XI, section 2, of the
Oregon Constitution, which was added in 1906 by the people’s initiative. Article XI, section 2,
provides, in part, that:
“The Legislative Assembly shall not enact, amend or repeal any charter or act of
incorporation of any municipality, city or town. 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.”
A home rule charter operates like a state constitution in that it vests all government power in the
governing body of a municipality, except as expressly stated in that charter, or preempted by
state or federal law. According to the League’s records, all of Oregon’s 242 incorporated cities
have adopted home rule charters.
The leading court case interpreting Oregon’s home rule amendment is La Grande/Astoria v.
PERB, 281 Or 137, 576 P2d 1204, aff’d on reh’g, 284 Or 173, 586 P2d 765 (1978). In that case,
the Oregon Supreme Court said that home rule municipalities have authority to enact substantive
policies, even on a topic also regulated by state statute, as long as the local enactment is not
“incompatible” with state law, “either because both cannot operate concurrently or because the
Legislature meant its law to be exclusive.” In addition, the court said that where there is a local
enactment and state enactment on the same subject, the courts should attempt to harmonize state
2
statutes and local regulations whenever possible.
1
SeeJohn F. Dillon, 1 The Law of Municipal Corporations § 9b, 93 (2d ed 1873).
2
Criminal enactments are treated differently. Local criminal ordinances are presumed invalid, and that presumption
cannot be overcome if the local enactment prohibits what state criminal law allows or allows what state criminal law
prohibits. See City of Portland v. Dollarhide, 300 Or 490, 501, 714 P2d 220 (1986). Consequently, theOregon
Supreme Court’s case law is clear that a local government may not recriminalize conduct for which state law
provides criminal immunity. See City of Portland v. Jackson, 316 Or 143, 147-48, 850 P2d 1093 (1993) (explaining
how to determine whether a state law permits what an ordinance prohibits, including where the Legislature expressly
permits specified conduct).
Local Government Regulation of Marijuana in Oregon League of Oregon Cities | 3
May 2016 (Third Edition)
Home Rule
In subsequent cases, the Oregon Supreme Court directed courts to presume that the state did not
intend to displace a local ordinance in the absence of an apparent and unambiguous intent to do
3
so.Along the same lines, a local ordinance can operate concurrently with state law even if the
4
local ordinance imposes greater or different requirements than the state 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 and local governments retain their
authority to regulate. As such, the Oregon Supreme Court has concluded that a negative
inference that can be drawn from a statute is insufficient to preempt a local government’s home
5
rule authority.For example, where legislation “authorizes” a local government to regulate in a
particular manner, a court will not read into that legislation that the specific action authorized is
to the exclusion of other regulatory alternatives, unless the Legislature makes it clear that the
authorized regulatory form is to be the exclusive means of regulating.
3 See, e.g., State ex rel Haley v. City of Troutdale, 281 Or 203, 210-11, 576 P2d 1238 (1978) (finding no manifest
legislative intent to preempt local provisions that supplemented the state building code with more stringent
restrictions).
4 See Rogue Valley Sewer Services v. City of Phoenix, 357 Or 437, 454-55, 353 P3d 581 (2015); see also
Thunderbird Mobile Club v. City of Wilsonville, 234 Or App 457, 474, 228 P3d 650, rev den, 348 Or 524 (2010) (“A
local ordinance is not incompatible with state law simply because it imposes greater requirements than does the
state, nor because the ordinance and state law deal with different aspects of the same subject.”(internal quotations
omitted)).
5
Rogue Valley Sewer Services, 357 Or at 453-55 (concluding that explicit authorization for cities to regulate certain
utilities did not, by negative implication, create a broad preemption of the field of utility regulation); Gunderson,
LLC v. City of Portland, 352 Or 648, 662, 290 P3d 803 (2012) (explaining that even if a preemption based on a
negative inference is plausible, if it is not the only inference that is plausible, it is “insufficient to constitute the
unambiguous expression of preemptive intention”required under home rule cases).
Local Government Regulation of Marijuana in Oregon League of Oregon Cities | 4
May 2016 (Third Edition)
Federal Law
Federal Law
Marijuana remains a Schedule I controlled substance under the federal Controlled Substances
Act (CSA). Schedule I substances are those for which the federal government has made the
following findings:
The drug or other substance has a high potential for abuse;
The drug or other substance has no currently accepted medical use in treatment in the
United States; and
There is a lack of accepted safety for use of the drug or other substance under medical
supervision.
Recently, the federal government has started reexamining the status of marijuana. In December
2014, Congress directed the Department of Justice not to use any of its funding to prevent states
like Oregon from implementing their medical marijuana laws. The effect of that appropriations
bill is currently beinglitigated in federal court.
In addition, under the federal CSA, the attorney general may, by rule, transfer a drug between
schedules or remove a drug from the schedules if certain requirements are met. The United
States Drug Enforcement Agency (DEA) has indicated that it currently is reviewing marijuana’s
status as a Schedule I controlled substance and expects to release a final determination in the first
half of 2016. The DEA has not, however, given any indication of whether it will reclassify or
remove marijuana from the schedules. Should the DEA reclassify or remove marijuana from
Schedule I, the League will update its members to address the implications of any
reclassification.
Oregon’s laws on medical and recreational marijuana do not, and cannot, provide immunity from
federal prosecution. Consequently, state law does not protect marijuana plants from being seized
or people from being prosecuted if the federal government chooses to take action under the CSA
against those using marijuana in compliance with state law. Similarly, cities cannot provide
immunity from federal prosecution.
Local Government Regulation of Marijuana in Oregon League of Oregon Cities | 5
May 2016 (Third Edition)
Oregons Marijuana Laws
An Overview of Oregons Marijuana Laws
There are two separate laws and regulatory structures governing marijuana at the state level: the
Oregon Medical Marijuana Act, which regulates medical marijuana, and the Control and
Regulation of Marijuana Act, which regulates recreational marijuana. Since their adoption by
the voters, the Legislature has made substantial changes to both acts.
Oregon Medical Marijuana Act
Oregon has had a medical marijuana program since 1998, when voters approved Ballot
Measure 67, the Oregon Medical Marijuana Act (OMMA) (codified at ORS 475B.400 – ORS
475B.525). Since that time, the Legislature has amended the OMMA on a number of occasions.
Generally, under the OMMA, a person suffering from a qualifying debilitating health condition
must get a written statement from a physician that the medical use of marijuana may mitigate the
symptoms or effects of that condition. The person may then obtain a medical marijuana card
from the Oregon Health Authority, which is the agency charged with regulating medical
marijuana. The patient may designate a caregiver and a grower if the patient decides not to grow
his or her own marijuana, each of whom also get a medical marijuana card. Patients, caregivers
and growers with medical marijuana cards, who act in compliance with the OMMA, are immune
from state criminal prosecution for any criminal offense in which possession, delivery or
manufacture of marijuana is an element. Those without medical marijuana cards may also claim
immunity from state criminal prosecution if they are in compliance with the OMMA and, within
12 months prior to the arrest at issue, had received a diagnosis of a debilitating medical condition
for which a physician had advised medical marijuana could mitigate the symptoms or effects.
The OMMA also provides protection from state criminal prosecution for medical marijuana
processors and medical marijuana dispensaries acting in compliance with the law.
The OMMA originally was envisioned as a system in which patients would grow for themselves
the marijuana that they needed, or designate a small scale grower, and, as a result, the regulation
was relatively minimal. The OMMA did not originally envision large-scale growsites,
processing sites, or dispensaries. However, as time went on, the Legislature saw a need to
impose more restrictions on medical marijuana grows, create a system for registering processors,
and create a system for state-registered facilities to lawfully transfermedicalmarijuana between
growers and patients or caregivers.
Legislation in 2015 and 2016 addressed some of the local government concerns about the lack of
regulation that had not been addressed in the original legislation. For example, a medical
marijuana grow site now can have only a limited number of mature marijuana plants and a
limited amount of usable marijuana harvested from those plants. In addition, medical marijuana
is now classified as a farm crop, but the Legislature was careful to carve out local regulatory
authority not available for other farm crops. The Legislaturealsoadded a new registration
category for medical marijuana processors, and imposed greater restrictions on those facilities.
Along similar lines, the Legislaturealsoadded further restrictions on where certain medical
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marijuana facilities can locate, and imposed new testing, labeling, inspection and reporting
requirements.
With the Legislature’s more robust statutory scheme came more extensive administrative rules
from the OHA. Those rules, found primarily in Oregon Administrative Rule 333-008, cover
many of the gaps left by the Legislature,including setting out a detailed registration system and
requirements for testing, reporting, background checks, security, and advertising, among other
things.
Recreational Marijuana
In November 2014, Oregon voters approved Ballot Measure 91, which decriminalized the
personal growing and use of certain amounts of recreational marijuana by persons 21 years of
age or older. The OLCC is the agency charged with licensing and regulating the growing,
processing,and sale of recreational marijuana. In particular, the OLCC has been tasked with
administering a license program for producers, processors, wholesalers and retailers, and under
that program, a person may hold more than one type of license.
Since the voters approved Measure 91, the Legislature has made notable changes to its structure,
primarily increasing accountability and safety requirements. For example, the Legislatureadded
testing, labeling, inspection and reporting requirements for licensees, required handlers permits
for those working with marijuana, and charged the OLCC with licensing OHA-accredited
laboratories to conduct the required testing. The Legislature also expanded the OLCC’s
rulemaking authority, tasking the agency with, among other things, developing and maintaininga
seed-to-sale tracking system and adopting restrictions on the size of recreational marijuana
grows. The Legislature also tasked the OLCC with certifying public and private marijuana
researchers.As noted above, the Legislature has also tasked the OLCC with creating a system
for transitioning medical marijuana registrants to OLCC recreational licensing, with the
possibility for recreational licensees toregister with the OLCC to engage in activities related to
medical marijuana.
The OLCC has adopted temporary rulesthat begin to implement those legislative changes and to
fill some of the gaps left by the Legislature. For example, the OLCC has imposed extensive
security requirements for alarm systems, video surveillance, and a restriction on public access to
certain facilities or areas within facilities. The OLCC has also imposed health and safety
requirements, including sanitary requirements and restrictions on how marijuana is processed. In
addition, the OLCC has addressed a number of other issues including testing, packaging,
labeling, advertising, waste, and implementing a seed to sale tracking system. At the time this
guide was published, the OLCC was in the process of adopting permanent rules.
State Taxation of Recreational Marijuana
Early sales of recreational marijuana from medical marijuana dispensaries aretaxed at a rate of
25 percent. When sales from OLCC-licensed retailersbegin later in 2016, the sale of marijuana
items will be subject to a 17 percent state tax, to be collected by those retailers. However, in
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2016, the Legislature clarified that medical marijuana cardholders and caregivers will not have to
pay the state tax on the retail sale of marijuana items. (SB 1511, § 17)
Of that state tax revenue, 10 percent will be transferred to cities to “assist local law enforcement
in performing its duties” under the Control and Regulation of Marijuana Act, i.e. the law
6
regulating recreational marijuana.That 10 percent will be distributed using different metrics
before and after July 1, 2017. Before that date, tax revenues will be distributed proportionately
to all Oregon cities based on their population. After July 1, 2017, those revenues will be
distributed proportionately based on the number of licenses issued for premises located in each
city. Fifty percent of revenues will be distributed based on the number of production, processor
and wholesale licenses issued in the city, and the other 50 percent will be distributed based on
the number of retail licenses issued in the city. However, if a city adopts an ordinance
prohibiting the establishment of any registered or licensed marijuana activities, the city will not
be eligible to receive state marijuana tax revenues.
Registration and License Types
Taking into consideration both the medical system and the retail system, there are 10marijuana
7
activities that require registration or a license from the state.The table on the next page
provides a summary of each type of activity and its registration/licensing requirements along
with a citation to the laws that governs those activities.
6
The remaining tax revenues will be distributed as follows: 40 percent to the Common School Fund;20 percent to
the Mental Health Alcoholism and Drug Services Account; 15 percent to the State Police Account; and 10 percent to
counties.
7
This guide focuses on regulation of those activities. In 2016, the Legislature preempted cities from prohibiting or
otherwise limiting homegrown marijuana production, processing, and storage as described in ORS 475B.245 and a
medical marijuana patient and caregiver’s possession of seeds, plants, and usable marijuana as allowed under state
law. (HB 4014, § 33).
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Oregons Ten Regulated Marijuana Activities
Research &
Grow Make Products Wholesale Transfer to User
Testing*
:** : :
Marijuana Grow Marijuana WholesalerDispensaryLaboratories
: :
SiteProcessing Site
Conducts testing
Purchase Transfer usable of recreational
Location for Location for
Regulated Activities
marijuana items marijuana, and medical
planting, compounding or
for resale to a immature marijuana items.
cultivating, converting
person other than marijuana plants,
growing, marijuana into
a consumer. seed, and medical
trimming, or medical products,
Obtain license
products,
harvesting concentrates or
under ORS
concentrates and
marijuana or extracts
475B.560 and OAR
extracts to
drying marijuana
845-025-5000 to
Medical
patients and
leaves or flowers
845-025-5075.
caregivers.***
Obtain
accreditation from
License with OLCC Register with OHA
OHA
Register with OHA Register with OHA
SB 1511, §4 (2016)ORS 475B.450; OAR 333-ORS 475B.565
ORS 475B.420; OAR 333-ORS 475B.435;
008-1000 to OAR 333-
008-010 to 333-008-OAR 333-008-1600 to
008-1248
0750 333-oo8-2200
: : : :
ProducersProcessorsWholesalersRetailers
Researchers:
Activities****
Manufacture, Process, Purchase Sell marijuana
Public or private
plant, cultivate, compound or marijuana items items to a
research of
grow, harvest convert marijuana for resale to a consumer
medical and
into products, person other than
recreational
concentrates or a consumer
marijuana,
Regulated
extracts, but does
including medical
not include
and agricultural
packaging or
research
labeling
Recreational
Obtain license Obtain license
Obtain license Obtain license
Certification from
from OLCC
from OLCC from OLCCfrom OLCC
OLCC
ORS 475B.090; OAR 845-ORS 475B.100; OAR 845-ORS 475B.110; OAR 845-
ORS 475B.070; OAR 845-
ORS 475B.235 and OAR
025-3200 to OAR 845-025-3500025-2800 to OAR 845-
025-2000 to OAR 845-
845-025-5300 to 845-
025-3290025-2890
025-2080
025-5350
*These activities support both the recreational and medical marijuana systems.
**There is no means for obtaining a medical wholesale license from OHA. Legislation in 2016 allows an OLCC licensed
recreational wholesaler to obtain authority from OLCC to also wholesale medical marijuana.
***Medical Marijuana Dispensaries can do limited retail sales until December 2016. OAR 333-008-1500
****In addition to the ten types of regulated activities, certain employees must also obtain an OLCC handlers permit. ORS
475B.215; OAR 845-025-5500 to OAR 845-025-5590.
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Early Sales of Recreational Marijuana
Since July 1, 2015, people 21 years of age and older have been able topossess limited amounts
of recreational marijuana under state law. Becausethe OLCC was not preparedto issue licenses
for the retail sale of recreational marijuana at that same time, the Legislature authorized medical
marijuana dispensaries to sell limited quantities of recreational marijuana between October 1,
2015 and December 31, 2016. By the time early sales end, recreational retailers are expected to
be operating.
Under current law, medical marijuana dispensaries may sell the following to a person who is 21
or older and presents proof of age:
One quarter of one ounce of dried marijuana leaves and flowers per person per day;
Four marijuana plants that are not flowering;and
Marijuana seeds.
Starting June 2, 2016, medical marijuana dispensaries also may sell the following to a person
who is 21 or older and presents proof of age:
Non-psychoactive medical cannabinoid products intended to be applied to the skin
or hair;
One single-serving, low-dose unit of cannabinoid edible per person per day; and
One prefilled receptacle of cannabinoid extract per person per day.
Is a Consolidated System on the Horizon?
During the 2016 legislative session, the Legislature amended the recreational marijuana laws to
begin shifting towards a consolidated system. In particular, the Legislature imposed a
requirement on the OLCC to adopt rules governing the process of transitioning from medical
registration with OHA to medical/recreational licensing with the OLCC. Specifically, one bill
provides that the OLCC is to establish a program that allowsmedical registrants to convert to a
retail license. HB 4014 §§ 24 and 25 (2016). In addition, another bill created new provisions
allowing recreational licensees to register with the OLCC to engage in the same retail license
activity for medical marijuana purposes, essentiallyallowing one licensee to engage in retail and
as medical marijuana activities under the regulatory control of the OLCC. (SB 1511, §§ 1-6) At
the time this guide was published,the OLCC has yet to issue rules as set out in that legislation.
However, the upshot of those changes is that subject to the rules OLCC adopts, that legislation
will enable co-location of both medical and recreational marijuana activities under the oversight
of one agency.
Although oversight of marijuana activities may be consolidating into the OLCC, it’s important to
note that for now the recreational and medical programs continue to retain separate’
characteristics and businesses operating within them will be subject to different rules. For
example, in 2016 the Legislature added a separate description of what constitutes medical
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marijuana, with a definition that suggests that medical products may carry a different potency
than recreational marijuana. (SB 1511, § 11). Additionally, as discussed below, the spacing
requirements remain different (for recreational retailers local governments can’t require more
than a 1,000 feet buffer, but medical marijuana under state law must be at least 1,000 feet from
each other.) Thus a person licensed to conduct both retail and medical marijuana activities will
still be operating under different sets of rule for each activity.
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Local Government Options for Regulation of Marijuana
As set out in ORS 475B.340, ORS 475B.500, and under
their home rule authority, cities have a number of options
Any city wanting to regulate or
for regulating marijuana activities. Whether to regulate is a
prohibit marijuana activities
local choice. What follows is an overview of the options
should work closely with its legal
available to cities. However, before embarking on any form
counsel to survey existing state
of regulation, cities should begin by examining the 10 types
law, administrative rules, and
of marijuana activities authorized by state statute and the
local code; develop a means to
restrictions state law (including administrative regulations
implement and enforce any new
adopted by the OLCC \[found in OAR chapter 845, division
ordinances; and then craft the
25\] and the OHA \[found in OAR chapter 333, division 8\])
necessary amendments to the
places on each type of activity to determine whether a gap
citys code to accomplish the
exists between what state law allows and what the
councils intent.
community desires to further restrict.
State Restrictions on the Location of Medical and Recreational
Marijuana Activities
Before regulating or prohibiting state-registered or licensed marijuana activities, cities should
examine the restrictions in state law. It is important to know about any state restrictions that
create a regulatory “floor.” In other words, although the courts generally have upheld a city’s
authority to impose more stringent restrictions than those described in state law, a city likely
cannot impose restrictions that are more lenient than those described in state law. So for
example, whenstate law requires a 1,000-foot buffer between medical marijuana dispensaries, a
city could not allow dispensaries to locate within 500 feet of each other. Moreover, some cities
may determine that state regulation of marijuana activities is sufficient and that local regulation
is therefore unnecessary.
For those cities interested in prohibiting any of the marijuana activities listed above,it is
important toexamine the state restrictions, particularly in smaller communities. Those
restrictions effectively may preclude a person from becoming registered with or licensed by the
state to engage in marijuana activities.
Medical Grow Sites and Recreational Producers
ORS 475B does not restrict where medical marijuana grow sites or recreational marijuana
producers can locate. In fact, in 2016, the Legislature clarified that both medical and recreational
marijuana are farm crops, allowing marijuana to be grown on land zoned for exclusive farm use.
Nonetheless, such grows are still subject to local time place and manner restrictions.
However, the OLCC has adopted some restrictions on where recreational marijuana facilities
generally can locate,andwhere recreational marijuana producers in particular can locate. (OAR
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845-025-1115). All recreational marijuana facilities (including grows) are prohibited from
locating:
On federal property;
At the same physical location or address as a medical marijuana facility that has
maintained its medical registration with the OHA; or
At the same physical location or address as a liquor licensee.
(OAR 845-025-1230) Recreational marijuana growers are additionally prohibited from locating
on public land or on the same tax lot or parcel as another licensed grower under common
ownership. (OAR 845-025-1115)
In addition to location restrictions, state law and rule places limitations on the number of plants
that a medical marijuana grower can grow in residential zones on the size of recreational
marijuana grow canopies. Generally, a medical marijuana grow site may have up to 12 mature
plants if it is located in a residential zone, and up to 48 mature plants if it is located in any other
zone. However, there are exceptions for certain grow sitesthat were in existence and had
registered with the state by January 1, 2015. For those grow sites, the number of plants is limited
to the number of plants that were at the grow site as of December 31, 2015, aslong as that
number does not exceed 24 mature plants per grow site in a residential zone and 96 mature plants
per grow site in all other zones. A grower loses the right to claim those exceptions, however, if
the grower’s registration is currently suspended or revoked.
Those medical limits, however do not apply to grow sites that are converting to recreational
grows under the provisions of SB 4014 and are reapplying through the OLCC to become a
recreational and medical grow site.
Medical Processing Sites and Recreational Processors
Processors that produce medical marijuanaextracts may not be located in an area zoned for
residential use. The OHA has defined “zoned for residential use” to mean “the only primary use
allowed outright in the designated zone is residential.” (OAR 333-008-0010(64)).
Processors that make recreational marijuana extracts may not be located in an area zoned
exclusively for residential use, and they are also subject to the general location restrictions in the
OLCC rules outlined above.
Medical Marijuana Dispensaries
Under state law, medical marijuana dispensaries may not locate in residential zones, may not be
located at the same address as a grow site, and may not be located within 1,000 feet of another
dispensary.
In addition, dispensaries may not locate within 1,000 feet of a public elementary or secondary
school for which attendance is compulsory under ORS 339.020, or a private or parochial
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8
elementary or secondary school, teaching children as described in ORS 339.030(1)(a).As a
practical matter, that means that dispensaries cannot locate within 1,000 feet of most public and
private elementary, middle and high schools. However, if a school is established within 1,000
feet of an existing dispensary, the dispensary may remain where it is unless the OHA revokes its
registration. In addition, under the 2016 legislation, a city can allow a dispensary within 500 feet
of a school under limited circumstances. (SB 1511, § 29).
Wholesalers and Recreational Retailers
Wholesale and retail licensees may not locate in an area that is zoned exclusively for residential
use and are subject to the same general OLCC restrictions on location noted above. The same
requirements that apply to medical marijuana dispensaries regarding their proximity to schools
apply to retail licensees. As a practical matter, a retail licensee may not locate within 1,000 feet
of most public and private elementary, middle and high schools. However, if a school is
established within 1,000 feet of an existing retail licensee, the licensee may remain where it is
unless the OLCC revokes its license. In addition, under the 2016 legislation, a city can allow a
dispensary within 500 feet of a school under limited circumstances. (SB 1511).
State law does not impose a 1,000-foot buffer between retailers as it does for medical marijuana
dispensaries. In fact, as discussed further under local government options, under state law, a city
cannot prohibit a retailer from being located within a distance greater than 1,000 feet from
another retailer. In other words, the maximum buffer that a city can impose between retailers is
1,000 feet.
Compatibility with Local Requirements - Land Use Compatibility Statement (LUCS)
In addition to express restrictions on the location of certain marijuana facilities, state law also
requires certain marijuana facilities to obtain a land use compatibility statement (LUCS) from the
local government before the state will issue a license. In particular, recreational producers,
processors, wholesalers, and retailers must request a land use compatibility statement from a
local government before the OLCC issues a license. A LUCS describes whether the proposed
use is allowable in the zone requested, and must be issued within 21 days of:
8
ORS 339.020 provides, “Except as provided in ORS 339.030:
(1) Every person having control of a child between the ages of 7 and 18 years who has not completed the
12th grade is required to send the child to, and maintain the child in, regular attendance at a public full-
time school during the entire school term.
(2) If a person has control of a child five or six years of age and has enrolled the child in a public school,
the person is required to send the child to, and maintain the child in, regular attendance at the public
school while the child is enrolled in the public school.”
ORS 339.030(1)(a) provides, “In the following cases, children may not be required to attend public full-time
schools:(a) Children being taught in a private or parochial school in the courses of study usually taught in grades 1
through 12 in the public schools and in attendance for a period equivalent to that required of children attending
public schools in the 1994-1995 school year.”
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Receipt of the request if the land use is allowable as an outright permitted use; or
Final local permit approval, if the land use is allowable as a conditional use.
Certain small-scale medical marijuana growers outside of city limits do not have to request a
LUCS when applying for a recreational marijuana license. (SB 1598, § 2).
A local government that has a ballot measure proposing to ban marijuana activities does not have
to act on the LUCS while the ballot measure is pending.
Local Government Means of Regulation
In recent years, the Legislature has enacted several pieces of legislation that have encroached,
but not entirely preempted, a city’s home rule authority to regulate marijuana. What follows is a
discussion of those various encroachments and the options that remain available for cities that
may wish to regulate or prohibit marijuana activities.
Tax
The OMMA was silent on local authority to tax, meaning that local governments retained their
home rule authority to tax medical marijuana. Measure 91, on the other hand, attempted to
preempt local government authority to tax recreational marijuana, though there were significant
questions regarding the effect and scope of that purported preemption.
In ORS 475B.345, adopted in 2015, the Legislature vested authority to “impose a tax or fee on
the production, processing or sale of marijuana items” solely in the Legislative Assembly, except
as provided by law. The Legislature also provided that a city may not “adopt or enact ordinances
imposing a tax or fee on the production, processing or sale of marijuana items,” except as
provided by law. The Legislature went on to provide that cities may adopt an ordinance, which
must be referred to the voters, imposing a tax or fee of up to 3 percent on the sale of marijuana
items by a retail licensee. The ordinance must be referred to the voters in a statewide general
election, meaning an election in November of an even-numbered year. However, if a city has
adopted an ordinance prohibiting the establishment of any recreational marijuana licensees or
any medical marijuana registrants in the city, the city may not imposea local tax under that
provision. In addition, in 2016, the Legislature adopted an additional restriction on local
governments by providing that a local tax may not be imposed on a medical marijuana patient or
caregiver. (SB 1511, § 18).
ORS 475B.345 preempts local governments from imposing a tax on the production, processing
or sale of recreational marijuana, except as provided by state law. State law provides that a city
may impose up to a 3 percent tax on the sale of marijuana by an OLCC-licensed retailer, but an
ordinance adopting such a tax must be referred to the voters at a statewide general election. In
2016, the Legislature attempted to expand the state preemption by providing that a local tax may
not be imposed on a medical marijuana patient or caregiver. (SB 1511, § 18).
Cities that do impose a local tax may look to the state for help in administering that tax.
Recognizing that cities, particularly smaller cities, may not have the resources to administer and
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enforce a local marijuana tax, the 2016 Legislature clarified that local governments may contract
with the Oregon Department of Revenue (DOR) to collect, enforce, administer, and distribute
locally-imposed marijuana taxes. (HB 4014, § 32). The League is working to develop a sample
contract that cities interested in contracting with DOR can use as a starting point in discussions
with the agency.
For those cities that enacted taxes on medical or recreational marijuana prior to the Legislature’s
adoption of ORS 475B.345, the status of those taxes remains an open question. Arguably, cities
that had “adopt\[ed\] or enact\[ed\]” taxes prior to the effective date of ORS 475B.345 are
grandfathered in under the law. However, the issue is not free from doubt, and cities that decide
to collect on pre-ORS 475B.345 taxes should be prepared to defend their ability to do so against
legal challenge. Consequently, cities that plan to continue to collect taxes imposed prior to the
passage of ORS 475B.345 should work closely with their city attorney to discuss the
implications and risks of that approach.
Ban on Early Sales
On October 1, 2015, medical marijuana dispensaries began selling limited quantities of
recreational marijuana. Cities may adopt an ordinance prohibiting those early sales without
referring the ordinance to voters and likely without tax implications. Although a city adopting an
ordinance “prohibiting the establishment” of certain marijuana activities is not eligible to receive
state marijuana tax revenues, an ordinance prohibiting early sales would merely limit the
activities at an existing medical marijuana dispensary. As a result, cities would likely remain
eligible to receive state tax revenues.
However, cities likely cannot impose a local tax on early sales. Under ORS 475B.345, cities
may not adopt or enact ordinances imposing a tax or fee on the production, processing or sale of
marijuana items, except as provided in that legislation. ORS 475B.345 further stipulates that
cities may refer an ordinance to voters imposing a tax of up to 3 percent on sales by a person that
holds a retail license issued by the OLCC. Because early sales of recreational marijuana will be
made by medical marijuana dispensaries, and not by a retail licensee, a city likely is preempted
from imposing a tax on early sales of recreational marijuana. However, cities interested in
imposing a local tax on early sales should consult their city attorney.
Ban on State-Registered and Licensed Activities
Under ORS 475B.800, cities may prohibit within the city the operation of recreational marijuana
producers, processors, wholesalers and retailers, as well as medical marijuana processors and
medical marijuana dispensaries. The lawis silent on whether a city can ban medicalmarijuana
growers, marijuana laboratories, and marijuana researchers from operating in the city. However,
ORS 475B.800 does not indicate that the bill’s process for banning marijuana activities is the
exclusive means to do so. Cities considering banning medical marijuana grow sites, marijuana
laboratories, or marijuana researchers should consult their city attorney about whether they can
do so under either home rule, federal preemption or both legal theories.
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Before December 24, 2015, cities located in counties that voted against Measure 91 by 55
percent or more (Baker, Crook, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur,
Morrow, Sherman, Umatilla, Union, Wallowa and Wheeler Counties) had the opportunity to
enact a ban through council adoption of an ordinance prohibiting any of the six activities listed
above. For cities that did not take that approach within the required timeline, and for cities not
located in those counties, the city council may adopt an ordinance banning any of the six
activities listed above, but that ordinance must be referred to the voters at a statewide general
election, meaning an election in November of an even-numbered year. Medical marijuana
dispensaries and medical marijuana processors that have registered with the state by the time
their city adopts a prohibition ordinance are not subject to the ban if they have successfully
completed a city or county land use application process.
Under either procedure, as soon as the city council adopts the ordinance, it must submit it to the
OHA for medical bans and the OLCC for recreational bans, and those agencies will stop
registering and licensing the banned facilities. In other words, for cities using the referral
process, the council’s adoption of an ordinance acts as a moratorium on new facilities until the
election occurs.
For cities using the referral process, it is also important to note that once the elections official
files the referral with the county election office, the ballot measure is certified to the ballot.At
that point, the restrictions on public employees engaging in political activity will apply.
Consequently, cities should consult the secretary of state and their city attorney to ensure that
public employees are complying with state elections law in their communications about the
pending measure.
If voters reject a ballot measure proposing to ban marijuana activities, the OHA and the OLCC
will not begin registering and licensing marijuana facilities until the first business day of the
January following the statewide general election. (HB 4014, § 31). That system will allow cities
that want to regulate marijuana businesses time to adopt time, place, and manner ordinances after
the ban is rejected and before new registrations or licenses are issued by the state.
In determining whether to prohibit any of the marijuana activities registered or licensed by the
state, cities may want to consider the tax implications. Cities that enact a prohibition on any
marijuana activity likely will not be eligible to receive state marijuana tax revenues or impose a
local tax, even if the city bans only certain activities and allows others.
If a city that has imposed a ban decides to lift that ban, the governing body may repeal the
ordinance, and must give notice of the change to the appropriate regulatory agency (either OHA
or OLCC). (HB 4014, § 30).
Itis also important to note that in 2016 the Legislature preempted cities from imposing
restrictions on certain aspects of the personal possession of recreational and medical marijuana.
(HB 4014 § 33). As a result, cities interested in enacting a banon any aspect of personal use and
growing of marijuana should consult with their city attorney to discuss the scope of the
preemption, and whether the city can regulate or ban under either home rule, federal preemption
or both legal theories.
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Business License Ordinance
Although ORS 475B.800 provides an avenue for cities to ban certain marijuana activities,
nothing in the statutemakes that the exclusive means for prohibiting marijuana activities. As a
result, some cities may not need to go through the procedures outlined in ORS 475B.800 to ban
marijuana activities because they may already have laws in place that create an effective ban.
However, cities relying on other avenues to ban should be prepared to defend their authority to
do so.
A number of cities have imposed a ban through a local business license ordinance that provides
that it is unlawful for any person to operate a business within the city without a business license,
and further provides that the city will not issue a business license to any person operating a
business that violates local, state or federal law. Indeed, cities that have a business license
ordinance in place should review their existing codes to determine if such wording already
exists. Additionally, whether adopting a new business license program or amending an existing
one to provide that the city will not issue a business license to any person operating a business
that violates local, state or federal law, a city should work with its legal counsel to ensure that its
business license ordinance includes an enforcement mechanism to address a situation in which a
person is operating a business without a business license.
In addition, cities that decide to enforce a business license ordinance instead of adopting a ban
under ORS 475B.800 should consult their city attorney regarding City of Cave Junction v. State
of Oregon (Josephine County Circuit Court Case #14CV0588; Court of Appeals Case
#A158118) and Providing All Patients Access v. City of Cave Junction (Josephine County
Circuit Court Case #14CV1246, Court of Appeals Case #A160044). At issue in those cases is
whether the city of Cave Junction may enforce its business license ordinance, which prohibits
issuance of a business license to a business operating in violation of local, state or federal law, to
effectively prohibit medical marijuana dispensaries from operating. Two trial courts in Oregon
have upheld the city’s business license ordinance against challenges that it has been preempted
by the OMMA (prior to its amendment by HB 3400). Both of those cases currently are on
appeal before the Oregon Court of Appeals.
Development Code
Cities that desire to impose a prohibition on marijuana operations could also include in their
development codes a provision stating that the city will not issue a development permit to any
person operating a business that violates local, state or federal law. If not already defined, or if
defined narrowly, the city will want to amend its code to provide that a development permit
includes any permit needed to develop, improve or occupy land including, but not limited to,
public works permits, building permits or occupancy permits.
Land Use Code
As noted previously, state law places restrictions on where certain marijuana activities can
locate, including prohibiting certain processors, dispensaries and retail establishments from
Local Government Regulation of Marijuana in Oregon League of Oregon Cities | 18
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Oregons Marijuana Laws
locating in residential zones. In addition to those state requirements, cities can impose their own
more stringent land use requirements and restrictions. Moreover, cities that desire to prohibit
marijuana facilities altogether might also do so through amendments to their land use codes.
Before considering this option, cities should work with their legal counsel to first determine if
the wording of their zoning codes already prohibits marijuana operations, and if not, to identify
the appropriate land use procedures and the amount of time it would take to comply with them.
If the wording in a city’s zoning codes does not prohibit marijuana operations, the city has
different options. One option is to add wording such as “an allowed use is one that does not
violate local, state or federal law” to the city’s zoning code. Cities that adopt a prohibition that
references federal law would then rely on existing mechanisms in their ordinances for addressing
9
zoning violations.
It is important to note that under ORS 475B.063 (as amended in HB 4014, section 11), a land use
compatibility statement is required as part of the OLCC’s licensing process. In particular, before
issuing a producer, processor, wholesaler or retailer license, an applicantmust 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
begins varies. If the land use is allowed as an outright permitted use, the city has 21 days from
receipt of the request; if the land use is a conditional use, the city has 21 days from the final local
permit approval. The city’s response to the OLCC is not a land use decision, and the city need
not act on a LUCS request while a measure proposing to ban marijuana facilities is pending.
Time, Place and Manner Regulations
ORS 475B.340 (recreational) and ORS 475B.500 (medical) provide that local governments may
impose reasonable regulations on the time, place and manner of operation of marijuana facilities.
The League believes that, under the home rule provisions of the Oregon Constitution, local
governments do not need legislative authorization to impose time, place and manner restrictions,
and that the Legislature’s decision to expressly confirm local authority to impose certain
restrictions does not foreclose cities from imposing other restrictions not described in state law.
ORS 475B.340 and ORS 475B.500 provide that cities may regulate marijuana facilities by
imposing reasonable restrictions on:
9 Under existing law, the League believes it is clear that a city may enforce civil regulations of general applicability
(such as zoning codes, business licenses and the like) through the imposition of civil penalties. Although a city
likely cannot directly recriminalize conduct allowed under state criminal law, it is a different legal question whether
a city may impose criminal penalties for violating a requirement of general applicability when the conduct at issue is
otherwise immune from prosecution under state law (i.e. whether a city may impose criminal penalties for operation
of a medical marijuana dispensary in violation of a city’s land use code). Cf. State v. Babson, 355 Or 383, 326 P3d
559 (2014) (explaining that generally applicable, facially neutral law, such as a rule prohibiting use of public
property during certain hours, may be valid even if it burdens expressive conduct otherwise protected under Article
I, section 8, of the Oregon Constitution). Consequently, a city should work closely with its city attorney before
imposing criminal penalties against a person operating a medical marijuana facility in violation of a local civil code,
such as a zoning, business license or development code.
Local Government Regulation of Marijuana in Oregon League of Oregon Cities | 19
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Oregons Marijuana Laws
The hours of operation of recreational marijuana producers, processors, wholesalers, and
retailers and medical marijuana grow sites, processing sites and dispensaries;
The location of recreational marijuana producers, processors, wholesalers and retailers, 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 recreational marijuana retailers;
The manner of operation of recreational marijuana producers, processors, wholesalers
and retailers; production and processing by marijuana researchers; and medical marijuana
grow sites, processing sites and dispensaries; and
The public’s access to the premises of recreational marijuana producers, processors,
wholesalers and retailers, as well as medical marijuana grow sites, processing sites and
dispensaries.
What regulations a city ultimately adopts will depend on community wants and needs, as well as
on future changes to the law and to the rules adopted by the OHA and the OLCC. As a result,
although cities may want to begin considering the types of regulations that they want to impose,
cities should be aware that local needs may change with experience and as new laws and
administrative rules go into effect.
Local Government Regulation of Marijuana in Oregon League of Oregon Cities | 20
May 2016 (Third Edition)
ATTACHMENTB
Frequently Asked Questions About
Local Regulation of Marijuana
May 24, 2016
Whats New?
Oregon’s medical and recreational marijuana laws are now codified in ORS chapter 475B.
Provisions relating to recreational marijuana are found in ORS 475B.005 to 475B.399. Medical
marijuana isaddressed in ORS 475B.400 to to 475B. 525. Testing of cannabis and cannabis
products are covered in ORS 47B.550 to ORS 475B.590. Packaging, labeling and dosage of
cannabis and cannabis products are covered in ORS 475B.600 to 475B.655. Taxation of cannabis
and cannabis productsis addressed in ORS 475B.700 to 475B.760. Provisions relating to the
authorit of cities and counties to prohibit the establishmet of cannabis-related businesses are found
in ORS 475B.800.
During the 2016 legislative session, the following amendments were made:
HB 4014 (2016)
Allows but does not mandate the ability for cities and counties to enter into IGA’s with
Oregon Department of Revenue to collect local marijuana sales taxes (3percent)
Clarifies that a land use compatibility statement (LUCS) request is not a land use decision
and therefore not subject to review by the Oregon Land Use Board of Appeals
Eliminates two-year residency requirement
Reduces the cost ofa medical marijuana card for veterans
Directs OLLC to adopt rules allowing medical marijuana grow sites, processing sites and
dispensaries to convert from OHA to OLLC licenses
Allows tax deduction for production, processing or sale of marijuana items which would
have otherwise been available under section 280E of Internal Revenue Code
Creates a process by which city or county can repeal a previously adopted ban on one or
more types of marijuana business (the “opt-in” ordinance)
SB 1598 (2016)
Allows existing medical marijuana growers operating outside of cities to sell into the
recreational market without completing a LUCS/ LUCS still required within city limits
Treats medical marijuana grown on agricultural lands as a farm crop but allows city or
county to impose reasonable regulations on marijuana production other unlike other
agricultural crops
Frequently Asked Questions About Local Regulation of Marijuana 1
May 24, 2016
SB 1511 (2016)
Expands access to allow OLCC licensed producers, processors and retailers to participate
in both recreational and medical marijuana markets
Allrecreational marijuana will be subject to the “seed-to-sale” tracking requirement
Expanded early start: adult-use customers able to purchase single serving low-dose
marijuana products that have passed appropriate purity and potency tests from the OHA
until December 31, 2016
Delay in effective date of plant limits: A medical grower in the process of applying to
become an OLCC licensee (and who has filed the paperwork) is granted a stay on the
reduction in plant limits through December 31, 2016
OHA is directed to consider higher allowable dosages for medical patients with serious
medical conditions
HB 4094 (2016)
Exempts financial services from certain Oregon criminal laws for providing financing or
financial services to marijuana businesses
Below are answers to some of the most commonly asked questions aboutOregon’s marijuana
laws and theirimpacts on local governments.
HOME RULE AND FEDERAL LAW
Ive heard that cities did not need this legislation to regulate marijuana because Oregon
is a home rule state. What is 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. All 242 cities in
Oregon have adopted a home rule charter. A charter operates like a state constitution in that it
vests all government power in the governing body of a municipality, except as expressly stated in
that charter or preempted by state or federal law.
So how does home rule relate to a citys authority to regulate marijuana?
Home rule authority allows local governments to enact ordinances regulating marijuana unless
preempted by state law. The state Legislature can limit local government authority if it passes
legislation that clearly and unambiguously preempts that authority. Because the Legislature
recently passed four bills relating to marijuana, it is important to understand how state and local
authority interact because that relationship will impact what cities can and cannot do when it
comes to regulating marijuana. Specifically, unless clearly preempted, cities can impose
regulations in addition to those authorized under ORS chapter 475B under their home rule
authority.
Frequently Asked Questions About Local Regulation of Marijuana 2
May 24, 2016
Isnt marijuana illegal under federal law? If so, how can Oregon legalize it?
Marijuana is classified under the federal Controlled Substances Act as a Schedule I drug, which
means it is unlawful under federal law to grow, distribute, possess or use marijuana for any
purpose. Individuals who engage in such conduct could be subject to federal prosecution. Thus
far, courts have upheld a state’s authority to decriminalize marijuana for state law purposes.
Oregon did so for medical marijuana in 1998 and for recreational marijuana in 2014. What that
means is someone who grows, distributes, possesses or uses marijuana within the limits of those
state acts is immune from state prosecution, but might still be subject to federal prosecution if
federal authorities desired to do so.
The U.S. Drug Enforcement Agency has indicated that it may consider reclassifying marijuana in
the future. To date, this has not occurred nor is there any indication that any reconsideration by
the DEA would result in a reclassification.
Can we as a city council use our home rule authority and vote to re-criminalize
marijuana within our city?
No. A city’s home rule authority is subject to the criminal laws of the state of Oregon. As noted
above, the OMMA and Measure 91 provide immunity from criminal prosecution for individuals
who are acting within the parameters of those laws. Consequently, a council cannot remove the
immunity provided by state law.
The immunity provided by state law does not extend to all crimes committed while engaging in
marijuana-related activities. For example, the immunity provided by state law does not apply to
the crime of driving under the influence. Likewise a city should be able to impose criminal
penalties against a person engaging in a marijuana-related activity that violates another law, such
as a business license ordinance, zoning or anti-smoking regulations. However, before doing so, a
city should work with its city attorney to confirm that the state law immunities do not apply.
BANS
Can my city ban the growing, processing, and sale or transfer of marijuana?
ORS 475B.800 provides a process, explained below, for cities to ban six of the seven types of
marijuana activities registered or licensed by the state. Specifically, the six types of marijuana
activities that cities can ban under ORS 475B.800 are:
Medical marijuana processors (preparingedibles, skin and hair products, concentrates and
extracts);
Medical marijuana dispensaries;
Recreational marijuana producers (growers);
Recreational marijuana processors (preparing edibles, skin and hair products, concentrates
and extracts);
Recreationalmarijuana wholesalers; and
Recreational marijuana retailers.
The seventh marijuana activity registered by the state is the growing of medical marijuana. The
bills the Legislature enacted in 2015 are silent on whether a city can ban medical marijuana
growers from operating. (State law does expressly place limits on the number of plants and the
Frequently Asked Questions About Local Regulation of Marijuana 3
May 24, 2016
amount of marijuana that can be located at any particular grow site.) As noted below, the
statutes do not indicate that the process in ORS 475B.800 for banning marijuana activities is the
exclusive means to do so. Cities considering banning medical marijuana grow sites should talk
to their city attorney about whether they can do so under either home rule, federal preemption, or
both legal theories.
What process does the city need to go through under ORS 475B.800 to impose a ban on
the growing, processing, or sale or transfer of marijuana?
Before December 24, 2015, cities located in counties that voted against Measure 91 by 55
percent or more (Baker, Crook, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur,
Morrow, Sherman, Umatilla, Union, Wallowa and Wheeler Counties)were permitted toenact a
ban through council adoption of an ordinance prohibiting any of the six activities listed above.
After that time, and for cities not located in those counties, the city council may adopt an
ordinance banning any of the six activities listed above, but that ordinance must be referred to
the voters at a statewide general election, meaning an election in November of an even-
numbered year.The general election date for 2016 is November 8.
As soon as the council adopts the ordinance, it must submit it to the Oregon Health Authority
(OHA) for medical bans and the Oregon Liquor Control Commission (OLCC) for recreational
bans, and those agencies will stop registering and licensing the banned facilities. In other words,
for cities using the referral process, the council’s adoption of an ordinance acts as a moratorium
on new facilities until the election occurs.
Can my city ban the personal use and growing of marijuana?
ORS chapter 475B does not provide an avenue for cities to ban the personal use and growing of
marijuana. As a result, cities interested in enacting such a ban should consult with the city
attorney to discuss whether the city can do so under either home rule, federal preemption, or both
legal theories.
If the city adopts a ban under ORS 475B.800, are existing marijuana activities
grandfathered (allowed to remain open)?
The answer depends upon the type of activity. Medical marijuana dispensaries and medical
marijuana processors that have registered with the state by the time theircity adopts a prohibition
ordinance are not subject to the ban if they have successfully completed a city or county land use
application process.
However, ORS 475B.800 does not provide similar protection to any of the other marijuana
activities that a city can ban under that legislation. Consequently, recreational marijuana
growers, processors, wholesalers and retailers are subject to a ban under ORS 475B.800, even if
those businesses are already operatingat the time the ban was enacted.
Although some businesses may argue that they have a due process right to continue operating,
the status of marijuana as an illegal drug under federal law makes it unlikely that a court would
recognize a due process right for a marijuana business owner. However, cities will want to work
closely with their city attorney on enforcement of a ban against existing businesses.
If my city adopts a ban under ORS 475B.800, will it still get a share of state marijuana
tax revenues?
Frequently Asked Questions About Local Regulation of Marijuana 4
May 24, 2016
No. A city that adopts an ordinance prohibiting the establishment of medical or recreational
marijuanabusinesses is not eligible to receive a distribution of state marijuana tax revenues.
If the voters in my city vote to reject the ban, when will the Oregon Liquor Control
Commission or Oregon Health Authority begin registering or licensingmarijuana
businesses?
Section 31 of HB 4014 (2016) provides that licensing or registration on the first business day of
the January immediately following the date of the statewide general election.This date was
chosen to provide an opportunity for cities and counties to adopt localtime, place or manner
restrictions, business license ordinances and forms and to take other action required to address
issues and concerns relating to the addition of marijuana businesses in the city. Cities dealing
with this situation will want to visit with their city attorney to discuss action steps and to further
determine if there are home rule or business license possibilities to prohibit some or all
marijuana business activities.
My city requires businesses to obtain a license to operate, and city ordinance provides
that the city will not issue a business license if a business operates in violation of local,
state or federal law, creating an effective ban on marijuana businesses. Can we
continue to enforce that ordinance instead of adopting a ban using the procedure
described in ORS 475B.800?
Yes. The League has taken the position that cities may still adopt and enforce their business
license ordinances. However, a city should be prepared to defend its authority to do so.
1
ORS chapter 475B does not contain a broad express preemption on local government authority.
Nothing in ORS 475B makes the ban procedures in the law the exclusive means for prohibiting
marijuana businesses. Consequently, the League has taken the position that ORS 475B does not
prevent a city from banning marijuana activities through other means, such as adopting or
enforcing a business license ordinance that prohibits issuance of a business license to a business
operating in violationof local, state or federal law.
However, cities that decide to enforce a business license ordinance instead of adopting a ban
under ORS 475B.800 should consult their city attorney about the case of City of Cave Junction v.
State of Oregon, Josephine County Circuit Court Case #14CV0588, which is currently on appeal
before the Oregon Court of Appeals. At issue in that case is whether the city of Cave Junction
may enforce its business license ordinance, which prohibits issuance of a business license to a
business operating in violation of local, state or federal law.
If my city adopts a ban under ORS 475B.800 and the ban is approved by the voters at a
statewide general election, will it be possible to repeal the ban at a later time?
Yes, ORS 475B.800 provides the mechanism by which a city that has effectively banned
marijuana businesses may repeal that prohibition. The process by which a city or county may
opt in to allow marijuana businesses is quite similar to the process required (and described
above) by which a city opted out of allowing marijuana businesses.
1
Section 57 of HB 3400 does provide that Measure 91 supersedes any “inconsistent” local enactments. Although some people
have suggested that Section 57 is a broad preemption of local authority, the League disagrees. The liquor control act contains
similar wording and the Oregon appellate courts have not interpreted that section to be a broad preemption. For more
information and analysis of the inconsistency provision in Measure 91, as amended by ORS 475B, see the memorandum on the
League’s A-Z Marijuana Resources webpage entitled, “Measure 91 and Local Control.”
Frequently Asked Questions About Local Regulation of Marijuana 5
May 24, 2016
The city council must adopt an ordinance repealing its earlier ordinance which prohibited one or
more of the six activities listed above, and that ordinance of repeal must be referred to the voters
at a statewide general election, meaning an election in November of an even-numbered year.
The general election date for 2016 is November 8. The next available election date to opt in will
be November 6, 2018.
As soon as the council adopts the ordinance, it must submit it to the Oregon Health Authority
(OHA) for medical marijuana activities and the Oregon Liquor Control Commission (OLCC) for
recreational marijuana activities. Those agencies will beginregistering and licensing on the first
business day of the January immediately following the date of the statewide general election.
This date was chosen to provide an opportunity for cities and counties to adopt local time, place
or manner restrictions, business license ordinances and forms and to take other action required to
address issues and concerns relating to the addition of marijuana businesses in the city.
LOCAL TAX
Can my city tax recreational marijuana?
Yes, as long as the city has not adopted an ordinance under ORS 475B.800 prohibiting marijuana
activities in the city.
Under ORS 475B.345, cities may imposeup to a 3 percent tax on sales of marijuana items made
by those with recreational retail licenses by referring an ordinance to the voters at a statewide
general election, meaning an election in November of an even-numbered year.
Can my city tax medical marijuana?
It is unclear whether a city can tax medical marijuana. ORS 475B.345 provides that authority to
“impose a tax or fee on the production, processing or sale of marijuana itemsin this state is
vested solely in the Legislative Assembly,” and a city may not adopt or enact ordinances
imposing a tax or fee on those activities except for the 3 percent tax on recreational activities
discussed above. The legal question is whether that section applies to medical marijuana. Cities
interested in taxing medical marijuana should work closely with their city attorney.
My city enacted a tax on medical and recreational marijuana before ORS 475B was
enacted. Can we continue to impose that tax now?
The status of taxes enacted prior to ORS 475B is an open question. ORS 475B.345 provides
that, except as provided by law, the authority to “impose” a tax or fee on the production,
processing or sale of marijuana items is vested solely in the Legislative Assembly, and a city
may not “adopt or enact” ordinances imposing a tax or a fee on those activities. Arguably, cities
that have already adopted or enacted a tax prior to the effective date of ORS 475B.345 are
grandfathered in. However, the issue is not free from doubt, and cities that decide to collect on
pre-ORS475B345 taxes should be prepared to defend their ability to do so against legal
challenge. Consequently, cities that plan to continue to collect taxes imposed prior to the
passage of ORS475B.345 should work closely with their city attorney to discuss the implications
and risks of that approach.
My city requires all businesses to obtain a license and pay a fee. Does that fee count as
part of the 3 percent tax or fee that the city can impose under HB 3400?
Frequently Asked Questions About Local Regulation of Marijuana 6
May 24, 2016
HB 3400 limits a local tax on “the sale of marijuana items” to 3 percent and provides that a city
may not otherwise adopt or enact an ordinance imposing a tax or fee on “the production,
processing or sale of marijuana items.” Although ORS 475B.345 preempts certain local taxes
and fees, a city may be able to continue to impose taxes and fees of general applicability, which
are not specific and limited to marijuana businesses, without being subject to the 3 percent limit.
Cities considering imposing such a tax or fee should obtain their city attorney’s advice before
doing so.
If my city adopts a ban for somebut not allmarijuana activities, can it still impose a
local tax on those activities not banned?
Probably not. ORS 475B.800(5) broadly provides that a city that adopts a ban under ORS
475B.800 prohibiting one or more marijuana activities within its jurisdiction “may not impose a
local tax or fee on the production, processing or sale of marijuana or any product into which
marijuana has been incorporated.”
STATE TAX
What is the state going to tax and in what amount?
Under ORS 475B.700, the state will impose a 17 percent tax on the retail sale of marijuana
items, including marijuana leaves and flowers; immature marijuana plants; marijuana
concentrates and extracts; marijuana skin and hair products; and other marijuana products.
Early sales of recreational marijuana from medical marijuana dispensaries, however, will be
taxed at a higher rate. Starting January 4, 2016, early sales of recreational marijuana from a
medical marijuana dispensary will be taxed at a rate of 25 percent.
How much of the state tax revenues will go to cities?
Ten percent of the state marijuana tax revenues will be distributed to cities that do not adopt
ordinances prohibiting the establishment of marijuana facilities registered and licensed by the
2
state.The revenue will be distributed to cities “\[t\]o assist local law enforcement in performing
its duties” under Measure 91.
Early figures indicate that retail sales of marijuana have exceeded expectations, but insufficient
information is available upon which one can draw any reasonable conclusions as to what actual
dollar amounts might be available for distributionto cities. While preliminary revenue numbers
have been described in popular media, very little information has been made available relating to
the costs incurred by the State of Oregon in the administration and enforcement of ORS 475B.
How will the state tax revenues be distributed to cities?
Until July 1, 2017, the state tax revenue dedicated to cities will be distributed proportionately
based on population to those cities that do not adopt prohibiting ordinances. After July 1, 2017,
those revenues will be distributed proportionately based on the number of recreational licenses
issued for premises located in each city. Fifty percent of the revenue for cities will be distributed
based on the number of recreational grower, processor and wholesale licenses issued for a
2
The remaining revenues will be distributed as follows: 40 percent to the Common School Fund; 20 percent to the Mental Health
Alcoholism and Drug Services Account; 15 percent to the State Police Account; 10 percent to counties; and 5 percent to the
Oregon Health Authority.
Frequently Asked Questions About Local Regulation of Marijuana 7
May 24, 2016
premises in the city. The other 50 percent will be distributed based on the number of recreational
retail licenses issued for premises in the city.
Will the Oregon Department of Revenue be available to help collect local marijuana
sales taxes on behalf of cities and counties?
Yes.Section 32 of HB 4014 amends ORS 305.620 to allow cities and counties to enter into
intergovernmental agreements with the Oregon Department of Revenue (DOR)for the
collection, enforcement, administration and distribution of local marijuana sales taxes. The
League is working with the DOR to create an intergovernmental agreement template.
TIME, PLACE AND MANNER RESTRICTIONS
Does state law place any restrictions on where marijuana businesses can locate?
Yes. Medical marijuana dispensaries, recreational marijuana retail stores, and medical and
recreational marijuana processors that process marijuana extracts cannot locate in a residential
zone.
In addition, medical marijuana dispensaries and recreational marijuana retail stores are subject to
the following restrictions:
Neither can locate within 1,000 feet of certain public and private schools, unless the school
is established after the marijuana facility.
Medical marijuana dispensaries cannot locate within 1,000 feet of another dispensary.
Medical marijuana dispensaries cannot locate at a grow site.
Finally, before issuing anyrecreational marijuanalicense, 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:
If the use is an outright permitted use, 21 days from receipt of the request; or
If the use is a conditional use, 21 days from the final local permit approval.
I have heard that the new legislation ends card stacking and puts limits on the
amount of marijuana at a medical marijuana grow site. What are those limits?
Generally, a medical marijuana grow site may have up to 12 mature plants if it is located in a
residential zone, and up to 48 mature plants if it is located in any other zone. However, there are
exceptions for certain existing grow sites. If all growers at a site had registered with the state by
January 1, 2015, the grow site is limited to the number of plants that were at the grow site as of
December 31, 2015, not to exceed 24 mature plants per grow site in a residential zone and 96
mature plants per grow site in all other zones. A grower loses the right to claim those
exceptions, however, if the grower’s registration is suspended or revoked.
In addition to possessing mature marijuana plants, a medical marijuana grower may possess the
amount of usable marijuana that the person harvests from the mature plants, not to exceed 12
pounds of usable marijuana per mature plant for outdoor grow sites and 6 pounds of usable
marijuana per mature plant for indoor grow sites.
Frequently Asked Questions About Local Regulation of Marijuana 8
May 24, 2016
I have heard that cities can impose reasonable restrictions on medical and
recreational marijuana businesses. What does that mean?
Although the League takes the position that the Legislature has not foreclosed other regulatory
options, ORS 475B.340, as amended by section 66 of HB 4014, 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 fourtypes of recreationallicensees, 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 four types of recreationallicensees, as well as medical
marijuana processors and dispensaries; and
The public’s access to the premises of all four types of recreationallicenses, as well as
medical marijuana grow sites, processing sites and dispensaries.
The lawalso provides that time, place and manner regulations imposed on recreationallicensees
must be consistent with 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 OF RECREATIONAL MARIJUANA
What are early sales of recreational marijuana?
As of July 1, 2015, people 21 years of age and older have been allowed to possess limited
amounts of recreational marijuana under state law. TheOLCC anticipates the issuanceof
licenses for the retail sale of recreational marijuana in 2016. To allow the OLCC time to
implement its licensing system, while also providing an avenue for people to purchase
recreational marijuana,the Legislature authorized medical marijuana dispensaries to sell limited
quantities of recreational marijuana.
In particular, medical marijuana dispensaries will be able to sell the following to a person who is
21 or older and presents proof of age:
One quarter of one ounce of dried marijuana leaves and flowers per person per day;
Four marijuana plants that are not flowering; and
Marijuana seeds.
When did early sales start?
Medical marijuana dispensaries began selling limited quantities of recreational marijuana on
October 1, 2015. Sales of recreational marijuana from medical dispensaries currently are set to
end on December 31, 2016. At that time, recreational retail facilities likely will be operating and
selling recreational marijuana.
Can my city opt out of early sales?
Frequently Asked Questions About Local Regulation of Marijuana 9
May 24, 2016
Yes. Under SB 460, a city may adopt an ordinance prohibiting the early sales described above.
The city council may adopt the ordinance without referring it to the voters.
If my city opts out of early sales, is the city still eligible to receive state marijuana tax
revenues?
Probably. HB 2041 provides that a city that adopts an ordinance “prohibiting the establishment”
of marijuana businesses registered or licensed by the state is not eligible to receive state
marijuana tax revenues. An ordinance prohibiting early sales under SB 460, however, would not
prohibit the establishment of a state-registered or licensed facility. Rather, such an ordinance
would merely limit the activities at an existing medical marijuana dispensary. As a result, a city
prohibiting early sales should remain eligible to receive state marijuana tax revenues.
Can my city impose a local tax on early sales?
Probably not. Under ORS 475B, cities may not adopt or enact ordinances imposing a tax or fee
on the production, processing or sale of marijuana items, except as provided in that legislation.
ORS 475B.345 further stipulates that cities may refer an ordinance to the voters imposing a tax
of up to 3 percent on sales by a person that holds a retail license issued by the OLCC. Because
early sales of recreational marijuana will be made by medical marijuana dispensaries, and not by
a retail licensee, a city likely is preempted from imposing a tax on early sales of recreational
marijuana. However, cities interested in imposing a local tax on early sales should consult their
city attorney.
TIMELINE
The following is a summary of key dates that local government officials need to be aware of
regarding the effective date and implementation of Oregon’s new marijuana laws:
January 1, 2016
– Most amendments to Measure 91 go into effect. In addition, after this
date, medical marijuana growers became eligible to apply for an OLCC license to grow
recreational marijuana at the same site.
January 4, 2016
– The OLCC must approve or deny recreationallicense applications as
soon as practicable after this date (HB 3400 § 171). In addition, medical marijuana
dispensaries engaging in early sales of recreationalmarijuana must begin collecting a 25
percent state tax on those sales.
March 1, 2016
– Most amendments to the OMMA 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 recreationalmarijuana from medical marijuana
dispensaries end.
January 2, 2017 –
OLLC and OHA begin processing applications of marijuana businesses
in cities and counties where proposed bans were rejected by local voters.
Frequently Asked Questions About Local Regulation of Marijuana 10
May 24, 2016
COUNCIL ORDINANCE NO. 20566
COUNCIL BILL 5156
AN ORDINANCE CONCERNING IMPOSITION OF A THREE
PERCENT TAX ON THE RETAIL SALES OF RECREATIONAL
MARIJUANA; ADDING PROVISIONS TO THE EUGENE CODE,
1971; PROVIDING FOR AN EFFECTIVE DATE; AND REFERRING
THE CODE AMENDMENTS TO THE ELECTORS OF THE CITY AT
THE NOVEMBER 8, 2016 ELECTION.
ADOPTED:July 25, 2016
SIGNED:July 26, 2016
PASSED:7:1
REJECTED:
OPPOSED: Brown
ABSENT:
EFFECTIVE: If Passed by Voters: January 1, 2017
ORDINANCE NO. 20566
AN ORDINANCE CONCERNING IMPOSITION OF A THREE PERCENT TAX
ON THE RETAIL SALES OF RECREATIONAL MARIJUANA; ADDING
PROVISIONS TO THE EUGENE CODE, 1971; PROVIDING FOR AN
EFFECTIVE DATE; AND REFERRING THE CODE AMENDMENTS TO THE
ELECTORS OF THE CITY AT THE NOVEMBER 8, 2016 ELECTION.
THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1.
Retail Tax on Marijuana Items
3.700 Retail Tax on Marijuana Items - Definitions.
City Manager
Tax Administrator
Consumer
Marijuana item
Marijuana retailer
Person
Retail sale price
3.702 Retail Tax on Marijuana Items - Tax Imposed.
3.704 Retail Tax on Marijuana Items - Collection.