Ordinance Review: June 13th 2017
ORDINANCE REVIEW COMMITTEE
June 13, 2017
The Ordinance Review Committee met in regular session on Tues, June 13, 2017 at 7:30 p.m. at the Mayfield Village Civic Center Conference Room. Chairman Dr. Stephan Parker presided.
Present: Dr. Stephan Parker (Chairman), Mr. Paul Fikaris, and Mr. John Marrelli
Also Present: Mr. Joseph Diemert (Law Director), Ms. Deborah Garbo (Secretary), Mrs. Patsy Mills (Member of Council), and Mr. Rich Edelman (Police Chief)
Absent: Mayor Bodnar, Mrs. Mary Ann Wervey, Mr. David Hunter, and Mr. Tom Cappello (Village Engineer)
CONSIDERATION OF MEETING MINUTES: March 14, 2017
Consideration of minutes deferred to next meeting date.
- Temporary Sign Regulations (Law Dept.)
Amending Sections 1185.12 & 1185.14
Ordinance No. 2017-29
- Medical Marijuana Regulation (Law Dept.)
- Temporary Prohibition Moratorium
- Prohibition Moratorium
- Regulating Retail Sales
Chairman Parker called the meeting to order beginning with temporary sign regulations.
Temporary Sign Regulations
Amending Sections 1185.12 & 1185.14
Ordinance No. 2017-29
Mr. Marrelli states, there was a Federal Law Suit in Garfield Heights, what was found was that we can’t enact sign ordinances that are discriminatory. Basically, we have to treat our signs equally as far as timing, sizes and whatnot. Mark Guidetti & I went through the temporary signs that might pop up in town; garage sale, political signs and real estate signs. We tried to apply equal time limits, equal time for removal and equal sizes. If we ever get challenged on a political sign for example, we can beat them at the equal enforcement level. That’s really what this is all about.
Chairman Parker asked, is there not any delineation in terms of the enforcement of the law between residential and commercial?
Mr. Marrelli replied, I don’t think there’s garage sales in the commercial area. Real estate signs are a lot bigger in commercial, there’s a different standard for commercial property.
- Introduction to Garfield Hts Supreme Court decision by Law Dept.
Mr. Diemert said, what the Supreme Court said in the Garfield Case is that if you allow a real estate sign that’s 3 x 3 and don’t allow a political sign that’s 3 x 3, you’re discriminating and infringing on their free speech. You have to have equality between the comparisons of the sizes unless you have reasonable reason to distinguish why you have a regular size for one and not for the other. The same thing when we had a law about 30 days before you could put a sign up. John and I for how many years he’s been here and his predecessors, every Election season we have a problem with that because it really was unconstitutional when we tried to enforce it.
The courts have been addressing political signs forever and we’ve never had a sign ordinance that was totally compliant. Thank God we’ve never had any litigation or problems over it. John would always speak nicely to the people and say we have this 30 day thing, please don’t put them up, and most people were fine with that. There’s also the timing on taking it down. You don’t make the real estate guy take theirs down within 48 hours, why would you make a political sign guy take theirs down?
We went through all the sign regulations and tried to make the size standard, tried to make the time periods that they could be up standard between all of them.
Some areas we didn’t touch; integral signs, nameplate, street address & residential name signs. Those pretty much can be regulated because they’re different. But when you get into the temporary signs like real estate and garage/yard signs, their different.
For Commercial development, if we allow a 6 x 9 foot, why wouldn’t we let somebody have a 6 x 9 foot campaign sign in their yard? Those are the problems this Garfield decision on the Supreme Court was addressing, if you’ve got a reason for making them different, then put it in the ordinance and say why. In looking at development signs, how do we justify that, other than to help the property owner develop his property and sublots. It’s always been a thing that people have allowed, but the Supreme Court is saying; why do you make campaign signs so little, but a real estate sign could be bigger? There’s no reason for that, we just allowed it.
We went through and changed everything to standard. We made all the real estate & political signs 3’ x 3’. We took the time periods in which to get them down 7 days after the house is sold, So we give 7 days instead of 48 hours to get the political sign down.
When you look through this, the court does make a lot of sense. To try and make a legal ordinance, we took the Supreme Court decision and we scrutinized and compared it. Our ordinances are very similar to Garfield Height’s. We don’t want to go all the way to the Supreme Court with this kind of stuff.
Chairman Parker said, what you’re saying is there’s no delineation between commercial and personal use. I just wanted to make that clear. One problem I see with the timing is that signs too often stay up longer than 7 days.
Mr. Marrelli said, then we’re allowed to take them down and dispose of them.
Mr. Diemert replied, we’re not going to take them down anymore unless they’re in the right-of-way.
Mr. Marrelli added, or if they’re up there one month after the Election and they’re tattered, we’ll pick them up and throw them out.
Chairman Parker said, 7 days is pretty arbitrary.
Mr. Diemert said, the many people who sell their house then put up a sold sign for another month are going to be restricted now to the 7 days. The campaign people that are usually the ones who fight these are getting the better break. They’re going to have a bigger sign and a longer time.
Chairman Parker asked, in terms of timing, is everyone good with 7 days?
Mr. Diemert replied, it is arbitrary, but whatever number you pick, that number will apply to all.
Mr. Fikaris replied, I think it’s a good idea. I understand how you’re trying to square everything in a box, 9 sq. ft. and 7 days. I know the 10 ft. from right-of-way gets to be an issue sometimes. What is a Non-commercial opinion sign?
Mr. Diemert replied, abortion sign for example. Another thing, people are going to be allowed to have a sign for every candidate or every issue. Before, we tried to restrict that. The court isn’t going to let us get away with that if someone were to challenge. If there’re seven candidates, the person is allowed to have seven signs.
Chairman Parker asked, if someone wanted a 9 sq. ft. garage sale sign, they’re allowed?
Mr. Marrelli replied, yes.
Chairman Parker asked, at what point is it a nuisance to the people who live nearby? If I lived at the corner of my block and there were three garage sales going on over 5 weeks and each put out a 9 sq. ft. sign, I wouldn’t be happy.
Mr. Diemert said, if you’re at a corner of a street near a telephone pole, that’s public right-of-way, we could take them down.
Mr. Fikaris said, I can see that being an issue, but if the sign’s in the right-of-way or there’s an obstruction to the view, there’s a clause in here that they can be taken down and those are usually the signs people forget to take down.
Mr. Marrelli said that’s correct, we have a rule in our sign code about obstructing your view to vehicular traffic. Just so you realize, this is residential only. These are the signs that pop up in the residential areas.
Mr. Fikaris, seconded by Dr. Parker made a motion to amend Sections 1185.12 and 1185.14 relating to Sign Regulations as presented in Ordinance No. 2017-29.
Ayes: Dr. Parker, Mr. Fikaris, Mr. Marrelli
Motion Carried. Recommendation to Council.
Medical Marijuana Regulation
Temporary Prohibition Moratorium vs. Prohibition Moratorium vs.
Regulating Retail Sales
- Introduction to legislation by Law Dept.
Mr. Diemert states, what you have before you is consideration in terms of prohibition of any retail or cultivation sales within the Village of Mayfield for marijuana which the State has allowed for medical purposes. We had a temporary moratorium passed back in January and it expires the end of this month.
We could regulate, which I drafted in a regulation ordinance and we can prohibit which I introduced to Council, the Administration was recommending a total prohibition which would be 771.01 of our Codified Ordinances where any cultivation, processing or retail distribution of marijuana would be prohibited in all zoning districts. That’s what Ordinance 2017-21 says.
I don’t know what Ordinance Review could do. There was some Councilmembers that wanted it to come here. I asked Mary Beth and Debbie to get you all the excerpts from minutes where the Chief spoke and the reasons why Law Enforcement would have trouble with the retail sales within the Village. The Chief had six or seven legitimate reasons for that.
If you don’t make reservations on the permanent prohibition, we’re going to have to adopt another temporary prohibition next week at the next Council meeting.
It’s up to you if you have any questions about it. We’ve had people come to the meetings, maybe one pro and rest were con. I don’t know of any Department Heads that were in favor of it.
- Financial Ramifications – Revenue
Chairman Parker said, obviously this is a very heated issue. There are two aspects to this. I’m going to bring these things up just so they can be aired. First, the aspect of do we want to have these dispensaries here and have the ability to cultivate and sell? Second, what are the financial implications? I don’t know that we even know the financial ramifications. I know there are cities and villages that feel that this could potentially be a good source of revenue for them. I have no idea what that is. There are only 40 permits that are being distributed throughout the State. They’re only going to be in so many places.
Mr. Diemert said, I think I sent a letter out that each retail dispensary may experience 4,000 to 5,000 patients within a year. The financial parts would be $20,000 to $50,000 a year of revenue for the Village for fees and licenses. But as the Chief pointed out, he thinks more than that would be eaten up for Law Enforcement and monitoring and traffic control.
Chairman Parker said, I don’t recall those numbers per say. Thanks for bringing that out. Nobody wants to come back and say we shot the golden goose. From our standpoint, we’re fortunate to have a good revenue stream from other sources. I think it’s something we want to think about or acknowledge, that there’s some revenue source here.
Councilperson Mills asked, who gets the licensing fee? The application fee is $180,000.00 and if selected, renewable $200,000.00 a year. Who gets that money?
Mr. Diemert replied, the State of Ohio. We selected one that would be about $40,000.00 and then $20,000.00 each renewal. You have to be able to justify the fees we’re going to charge. It would be based on background checks.
Councilperson Mills said, everybody says this law has so many open ends. Of course we know, we all test laws. How do you feel about this Joe?
Mr. Diemert replied, I think the times are catching up to what’s been going on anyway. We long ago made small amounts of marijuana decriminalized which made Law Enforcement’s job I think a little easier as far as prosecution goes with people that had small amounts. It’s still a violation of Federal Law, so we have conflicts now between Federal and State Law. Colorado has allowed even recreational marijuana. They charge a sales tax on the sales. They had a real boom. We’re prohibited under our State Law Constitution from adopting local sales taxes on this kind of thing. We can only impose licensing fees and monitoring fees. The State has their rules finalized and posted for people to give comment on.
Chairman Parker asked, isn’t most of the work going to fall on the local level to monitor?
Mr. Diemert replied, the State.
Chairman Parker said, the State’s not going to deal with issues other than licensing. We’ll have to deal with the footwork.
- Comments by Police Chief
Police Chief Edelman said, boots on the ground, sure. The State will do some educational programs. One other thing you mentioned Joe about the conflict between Federal and State Law, because the Federal Law still considers marijuana to be a Schedule 1 narcotic with no medical value use whatsoever, because of that, that conflict would make anything at the State level require any of these businesses to be a cash business. They couldn’t establish any kind of credit through the banking system. Being a cash business only, that just increases the risk of criminal activity.
Chairman Parker asked about the FDA.
Mr. Diemert said, the Federal Constitution has deferred to the States on regulation of this type of thing. I think on many different drugs, just because they make it a Federal violation doesn’t mean that it’s a local violation. Visa versa, we could approve bank robbery in Mayfield Village but it’ll still be a violation of the Federal Law and the FBI could enforce it. They will not enforce the marijuana laws. It’s been a policy for years that they do not want to bring the Federal Government in to enforcing the Federal anti-marijuana laws. It’s a policy decision on their part. Could they do it? They probably could. They’re not going to have trouble convicting anybody when the State Government says that it’s o.k. That’s what they ran into in Colorado. People now go to Michigan to get their medical marijuana, it’s only 2 ½ hrs away from Cleveland. The people that are really sick and benefit from it, they go there. If they’re law abiding Citizen’s, they have to stay there because you can’t bring it across state lines. Once they do, then they’re in violation of Federal Law and local law.
Councilperson Mills said, I have an article that says only 7% of Ohio Physicians said they would be willing to recommend medical marijuana.
Mr. Diemert said, they’ll pop up out of the woodwork once this becomes negate.
Mr. Marrelli said, that number will rise rapidly.
Chairman Parker states, it’s interesting the list of communities that are considering it.
Mr. Diemert addressing Dr. Parker, you’d be allowed to do it. Dentists can prescribe medical marijuana for their patients because of the pain they have or the after effects of surgery.
Police Chief Edelman states, I think the bottom line from my aspect is, with three communities very close to us, South Euclid, Richmond Heights and Eastlake who all approved legislation, is it worth the effort, the risk to Mayfield Village? Why would we bother?
Councilperson Mills asked, if we would grant a permit, would it have to be somewhere like next door to here at the strip mall where there’s an empty storefront?
Mr. Marrelli replied, yes for retail sales.
Councilperson Mills asked, how about on Beta Drive?
Mr. Marrelli replied, no.
Councilperson Mills asked, could they come in for a variance?
Mr. Marrelli replied, they could try. Are you talking about cultivation or sales?
Councilperson Mills replied, both.
Mr. Marrelli said you need a lot of space for the cultivation.
Mr. Diemert said, Di Borally’s has the Casa & the Villa and they just meet the minimum size requirement for cultivation indoors. They’re close to getting their approvals.
Mr. Fikaris said, after reading everything and with what I’m hearing, pretty much everybody is not in favor of this and I agree. I would be not inclined for these reasons. What Chief Edelman spoke of, I think the risk reward thing at this point in time is not worth it. We’ve had this before where a business wants to move into warehouse space on Beta Drive and there are two guys. Yes, it’ll be occupied but it’s not going to bring in tax revenue. There are things to weigh, traffic versus income tax revenue. Since everything is so new, if there’s some sort of cash bonanza that Mayfield Village isn’t taking advantage of, that could be addressed down the line. The availability so close by for patients is coming soon, I don’t think that’s underserving the population by us denying it. I think it’s one of these businesses that for all the reasons we’ve said at this time, we don’t want them. In my opinion we don’t know enough about it because this whole operation hasn’t started yet. To try and regulate it at this point, I think everybody would probably breathe a sigh of relief if we just said no. We have a list of communities that agree and we can adopt a wait and see attitude. I think that’s the prevailing opinion, is that we don’t really want that in our community. There are certain businesses that are an indicator, and this could be prejudicial in saying like a check cashing place where they could be reputable. With personal opinions aside in saying someone could benefit from that, well, it’s coming. Somebody that is suffering and needs this type of therapy, it’s going to be available in September 2017 in one way shape or form to those individuals with a prescription. Like it or not, the whole recreational thing is not moving an inch on this either. Whatever it was, it still is. The cash issue, in Denver it’s a huge industry with cash storage and security. If they’re sitting on a couple million bucks, forget about breaking in to get a hold of pot when there’s a bunch of money in there. Let’s see how South Euclid and other communities do.
Mr. Marrelli said, I think we’re fortunate, our revenue stream is pretty healthy. We don’t really need to reach down in my estimation.
Chairman Parker said, I think we’re following the similar trend in how we evaluate things with new business coming into Mayfield Village.
Mr. Diemert said, and you don’t have a lot of vacant retail spaces around here.
Chairman Parker said, the intention for Beta Drive is more high tech business to utilize our fiber and such.
Mr. Marrelli said, we have a major investment in the fiber line there. To put a fiber line in for somebody to grow plants doesn’t make sense.
Police Chief Edelman asked, what is Council’s feeling on this?
Chairman Parker replied, if I were to guess, I think the majority are probably in favor of a permanent moratorium.
Councilperson Mills said, that’s how I feel. I think there are enough drugs on the street and we don’t need anymore.
Mr. Diemert states, if Ordinance Review were to recommend it, then I could tell Council that, but I will also bring a temporary one in case there is a non-majority to pass the permanent.
Councilperson Mills said, I think the people that were asking to put this on Ordinance Review, I’m kind of disappointed that they’re not here. That’s why I’m here, I want to know what’s going on.
Mr. Marrelli said, I think they punted it to the Ordinance Review Committee.
Councilperson Mills said, that’s not fair to you people, it’s not fair to Joe, it’s not fair to the Chief. That’s what we’re there for, because an opinion is not popular, that’s too bad. What’s good for the community is what I look at.
Chairman Parker said, are there any changes to the final Ordinance? I just want to make sure there’s no T’s to be crossed or I’s dotted.
Mr. Diemert said, Ordinance No. 2017-21 I think we introduced in March. Section 771.07 Prohibition of cultivation, processing or retail dispensaries of medical marijuana;
“Medical marijuana cultivation, processing or retail distribution as authorized by the Ohio Revised Code Section 3796, is hereby and herein prohibited in all zoning districts within the Village of Mayfield pursuant to the authority granted by the Ohio Revised Code under R.C. Section 3796.29.”
Mr. Fikaris asked, isn’t this just a recommendation from Ordinance Review?
Mr. Marrelli said, this is a little bit of a gray area and Joe will probably expound on this. Ordinance Review shouldn’t be making policy decisions which is what we’re doing. I think Council got cold feet and decided to punt it into Ordinance Review and see what we come up with, whether or not they agree with us or don’t agree with us.
Councilperson Mills said, you already said that at Council and it fell on deaf ears.
Mr. Marrelli said, I did. It came to us anyway.
Mr. Fikaris, seconded by Dr. Parker made a motion to recommend the adoption of Ordinance No. 2017-21 as presented.
Ayes: Dr. Parker, Mr. Fikaris, Mr. Marrelli
Motion Carried. Recommendation to Council.
Mr. Fikaris, seconded by Mr. Marrelli made a motion for adjournment.
Motion Carried. Meeting adjourned at 8:10 p.m.