City Council Community Planning and Transportation Committee Meeting

CITY COUNCIL COMMUNITY PLANNING AND TRANSPORTATION COMMITTEE MINUTES September 26, 2019 The City Council Community Planning and Transportation Committee of the City of Norman, Cleveland County, State of Oklahoma, met at 4:03 p.m. in the Conference Room on the 26th day of September, 2019, and notice and agenda of the meeting were posted in the Municipal Building at 201 West Gray and the Norman Public Library at 225 North Webster 48 hours prior to the beginning of the meeting. PRESENT: Councilmembers Bierman, Hall, Petrone, Wilson, and Chairman Holman ABSENT: None OTHERS PRESENT: Mr. Kevin Foster, Police Chief Ms. Brenda Hall, City C lerk Ms. Jane Hudson, Interim Director of Planning and Community Development Mr. Taylor Johnson, Public Transit Coordinator Mr. Travis King, Fire Chief Mr. Jack McMahan , ADA Technician Ms. Beth Muckala, Assistant City Attorney Mr. Shawn O'Leary, Director of Public Works Mr. Anthony Purinton, Licensed Legal Intern Ms. Jeanne Snider, Assistant City Attorney Ms. Kathryn Walker, Interim City Attorney Ms. Syndi Runyon, Administrative Technician IV Due to Staff time constraints, Item 3 was discussed first. Item 3, being: DISCUSSION REGARDING ZONING AND LICENSING REQUIREMENTS FOR MEDICAL MARIJUANA PROCESSORS AND DISPOSAL AND OUTDOOR CONSUMPTION OF MEDICAL MARIJUANA. Ms. Beth Muckala, Assistant C ity Attorney, said in response to public comments and requests, Council expressed interest in evaluating the various types of Medical Marijuana Processors (MMP) in terms of licensing and zoning treatment in Norman. There has been concern that the state definition of "processing" is too broad and seemingly low-impact processing activities, such as pre-rolling "joints" or adding pre-made concentrates to items such as edibles, is currently only allowed by right in industrial areas in Norman. Community Planning and Transportation Committee Minutes September 26, 2019 Page 2 Item 3, continued: The Oklahoma Medical Marijuana Authority (OMMA) has confirmed that pre-rolling "joints" constitutes "processing" under Oklahoma state law. This categorization under state law would create an application in Norman ' s Zoning Ordinance that would allow processing as a permitted use in industrial areas only, with a requirement for Special Use in commercial zones. Staff drafted an ordinance that demonstrates a potential tiered structure that could be used for both zoning and licensing purposes. Tier I and Tier II MMPs would relate to those businesses which plan to engage in the pre-roll of joints only or the addition of concentrates (pre-made off-site) to create a derivative product. Tier I and Tier II processors are defined to specifically include on-site sales, which sets it apart from industrial zoning treatment in Norman and likens processors more to retail businesses, such as bakeries and Medical Marijuana Dispensaries (MMD). Tier III processors would include Tier I and Tier II activities as well as any other activity and this category would essentially replace the " catch-all" category previously in place. To make sure the City is treating all types of processors the same in the Tier III category, the City must specify that on-site sales are not allowed if a business wants to be a Tier III licensee. Ms. Muckala said Staff has been unable to locate any municipality that has created sub-categories for processors for the purpose of placing them in commercial areas. The chief challenge in this approach is creating a category that complies with state law and anticipates future application of the language in a way that avoids inconsistencies or confusion. Ms. Muckala highlighted the three tiers as follows: • Tier I - [A] facility defined and regulated by Oklahoma state law as a MMP, and which engages in only the following activities: the preparation (from medical marijuana grown off-site) of pre-rolled marijuana cigarettes, joints, or b lunts for sale on-site. • Tier II - [A] facility defined and regulated by Oklahoma state law as a MMP, and which engages in Tier I MMP activities and/or the following activities: the use of marijuana concentrate(s) created off-site in compliance with state law, to make derivative products for sale on-site. To quality as Tier II MMP, the activities on-site by which marijuana concentrate is added to other ingredients to make a derivative product must utilize only ordinary implements and may not require or utilize specialized equipment. Examples of Tier II MMP are the cooking, baking, or preparation of medical marijuana edible products, or the addition of marijuana concentrate to products pre-manufactured off-site, such as lotions or soaps. • Tier III - [A] facility defined and regulated by Oklahoma state law as a MMP, which in any type(s) of MMP except that on-site sales are not permitted. Medical Marijuana Concentrate generally means a product created by the accumulation of trichomes from marijuana plant(s), may include kief, hash, rosin, tinctures, oils, shatter, pull and snap wax, budder/badder, crumble, distillate, and crystalline, and may result from solvent extraction or non-solvent extraction processes. Community Planning and Transportation Committee Minutes September 26, 2019 Page 3 Item 3, continued: In the draft ordinance, Tier J and Tier II MMPs treat MMPs the same as Medical Marijuana Dispensaries (MMD) and specifies that where a Tier I and Tier IJ MMP license is obtained for a location that already has a MMD license, the business will not be required to pay duplicative fees. For zoning purposes, Tier I and Tier II MMPs are allowed in the same places, and under the same circumstances, as MMDs. Tier Ill MMPs are treated the same as the 'catch-all" category, before and where necessary, the amendment notes that "on-site sales" are not permitted without a special use. Council member Wilson asked if it would be feasible for someone to open a pre -roll only business and why the City would want to force them to be a MMD if they do not want to be a MMD. Would they be able to sell pre-rolls to other MM facilities? Ms. Muckala said if the business wants to be a stand-alone processor they could wholesale, which would make their location much less impactful. She said the proposed language is meant for MMDs who want to prepare and sell pre­ rolls and the language does not address businesses that want stand-alone use for pre-roll s in a commercial area. She said according the state law, the business could do pre-roll only as a processor and be located in an industrial area as a wholesaler. Councilmember Petrone said duplication of fees for MMD licenses for the same location seems unfair and asked about duplication of fees for a grower who is processing. Ms. Muckala said there is no exception written in the ordinance for that situation and that language was based on direct Council guidance; however, under the licensing section of the Code, the City does not have any situation where someone is subject to duplicative offset or waiver, similar to retail beer and retail wine licenses created by the state. She said businesses that sell wine and beer must obtain a separate license for each. Councilmember Petrone said wine and beer can be purchased from multiple suppliers whereas MM facilities have limited sources of suppliers so it is not the same and seems unfair to make growers obtain a separate license to be a dispensary. Ms. Brenda Hall, City C lerk, said the City has many businesses that have multiple licenses and cautioned Council not to treat MM licenses differently until the City has gone through the ongoing fee study. She said there are many businesses that have multiple licenses for food, beer, wine, and liquor at the same site and are paying for those licenses separately. Ms. Muckala said there has been di scussion of "chemical" extraction versus "cold water" extraction. She said no zoning distinctions have been found for any type of processor, even in Colorado or California. She said the absence of dangerous substances makes a difference from a Building and Safety Code perspective, but not from zoni ng or licensing. Extraction machinery and equipment still require inspection and evaluation and activities are still more "manufacturing" than commercially based activities of Tier I and Tier II. She said Staff has no recommendations for licensing or zoning distinctions based on current information. Ms. Muckala said Staff found one situation while drafting the ordinance where a municipality (Tulsa) tried to make a distinction in processors between solvent extraction versus non-solvent extraction within industrial areas. Tulsa wanted bakery type MM uses to be located in lighter industrial areas versus heavy industrial areas, but not commercial use zoning. Community Planning and Transportation Committee Minutes September 26, 2019 Page 4 Item 3, continued: Chairman Holman said he would like to find a way for an existing bakery located in a commercial area to be able to make edibles that contain tctrahydrocannabinol (THC) without having to relocate their business to an industrial area. Councilmember Petrone said she would prefer all businesses using chemical extraction have some type of warning on the door and not be next to a gas station. She said if you can walk into a MM business and can inhale some type of harmful chemical then that needs to be a larger conversation for Council. Ms. Muckala said in the Tier II definition, as written, Tier II does limit processors to a concentrate created off-site. Counci !member Ho lman asked if an existing bakery could obtain a Tier II license to make edibles with THC without having to be in an industrial area and Ms. Muckala said yes, as long as extraction is not taking place on-site and the THC concentrate is being purchased off-site. She said the bakery would have to be able to utilize ordinary implements only, not specialized equipment that would require industrial zoning. Ms. Muckala said, as written, the City would have to change the language in order to allow any type of extraction to happen in a commercial area and the use of specialized equipment is the line that is easiest to draw in order to evenly apply the Zoning Code. She said allowing extraction in commercial areas will require case-by-case judgment calls. Councilmember Bierman suggested a Tier IJ(a) for non-chemical extraction, which would be contingent on Planning Department review. Ms. Muckala said under state law, Zoning Ordinances have to be pretty clear in their guidance and Staff has done their best to draw a clear line and establishing a line of extraction does make it a lot easier. She said the City is trying to allow a limited amount of creation of derivative products, which is in line with the current zoning structure that does allow a bakery in commercial zones while a Hostess factory has to be located in industrial areas. She sa id Staff can explore these options, but her recommendation would be to change the definition that extraction of some sort can happen on-site and she would need to do a significant amount of research in order to be able to give Council a really good framework on where that line is drawn. Councilmember Petrone said she liked the non-specialized equipment language because 1t 1s not specific to one industry. She said non-solvent extraction should be allowed in commercial areas because there are no harmful chemicals to breathe in or that could cause an explosion. She is thinking in terms of large-scale versus small-scale production, e.g., a small family bakery versus a Hostess factory. She suggested the City limit the amount of concentrate used per year for baking edibles in a reta iI storefront. Councilmember Bierman said she worries about a sense of unfairness among every other industry of business that is well established and does not have the opportunity to say, "Well if I am a 1,000 square foot convenience store should I be paying the same food sale license fee as a much larger business?" She said Council feels pressured to get this ordinance right the first time and not inhibit the MM industry. Ms. Hall said there is currently no di stinction between size except for Kennel Licenses, which depends on the number dogs/cats and location of the business (dense urban versus agricultural). She said larger businesses, such as a Hostess factory, do not require a license from the City because they sell wholesale and do not sell directly to the public. Ms. Muckala wanted Council to be aware that the way Center City uses are set up, it adopts permitted uses allowed in C-1, Local Commercial Di strict, through C-3, Intensive Commercial District, which  Community Planning and Transpo1tation Committee Minutes September 26, 2019 Page 5 becomes a permitted use in Center City. She said if the City makes Tier I and Tier II processors permitted uses in the commercial categories then they become permitted uses in Center City. Ms. Muckala highlighted updated draft ord inance zon ing allowances as follows: Commerc ial TIER I TIER II TIER Ill Research Testing Education Storage Zoning District Dispensary Facility LaboratorY Facility Facil ity Grower Processor Processor Processor A-1 - p I'* General Ag,ricuhure A-2 - Rural Agriculture p P* RO - Rcsidcncc/Onicc s s s 0-1 - Office/ Institutional s s CO - Suburban Office s s Commercial C- 1 - Local Commercial p I' p s s s s C-2 - General p p p p s s s Commercial TC - Tourist Commercial p p p CR - Rural Commercial p s p I' p• I' C-3 - Intensive Commercial p p p s s p s s 1-1 - Light Industrial s p s s p• s p p 1-2 - Heavy Industrial p p p p p p p p p M-1 - Restricted s Industrial s p s s s p p MUD - Mixed Use Development p p I' I' s CCFBC p CC PUD p p p CCPUD CCPUD CCPUD I' S = Special Use P = Permissive Use CCPUD = Center City Planned Use Development *P = Cultivation education activities only Chairman Holman felt more research is needed on issues raised in this discussion. Councilmember Bierman said if no other state with MM laws has a distinction for processors, there must be a good reason for that, which makes her cautious of Norman being the first municipality to do that. Councilmember Petrone asked if pre-existing businesses could be grandfathered in and be allowed to add THC to edible items, while continuing to sell what they normally sell as well. Ms. Muckala asked if Council is talking about allowing existing bakeries to extract on-site and Chairman Holman said yes, with a limited definition of what that means. Chairman Holman said he would like to move this item forward to full Council for their input and would not be opposed to Council kicking it back to the Committee for further clarification, if needed. Community Planning and Transportation Committee Minutes September 26, 2019 Page 6 Item 3, continued: Ms. Muckala said there were a lot of comments during the first MM discussions about the separation of grow operations from commercial or residential areas. She said in Residential Estate Districts (RE) there is a special use that allows any use permitted in M-1 and growing is a permitted use in M-1 (adopted in 1990). Council member Bierman said it seems that in 1990, City leaders looked at unused greenspace and basically said, "How do we make this useful in other ways than just greenspace?" She asked what other allowances, other than MM Grower, are allowed in M-1. She feels the intent in 1990 is not what Council's intent is today. Ms. Jane Hudson, Interim Planning Director, said M-1 uses includes assembly without fabrication; fabrication or processing of specific products; laboratories; mail order house; MM Commercial Grower; MM Education Facility; MM Processor; and MM Storage Facility. Councilmember Wilson said she will not support MM Facility uses in RE so Council may want to explore closing that loophole and Councilmembers agreed. Items submitted for the record l. Memorandum dated September 17, 2019, by Beth Muckala, Assistant City Attorney, through Kathryn L. Walker, Interim City Attorney, to Honorable Mayor Breea Clark and City Council 2. Memorandum dated September 17, 2019, by Beth Muckala, Assistant City Attorney, through Kathryn L. Walker, Interim City Attorney, to Honorable Mayor Breea Clark and City Council 3. Draft ordinance 4. PowerPoint presentation entitled, "Medical Marijuana Continued Discussion," Community Planning and Transportation Committee, dated September 26, 2019 ***** Item l, being: PUBLIC TRANSIT RIDERSHIP REPORT FOR THE MONTHS OF JULY AND AUGUST AND TRANSIT RIDERSHIP FARES. Mr. Shawn O ' Leary, Director of Public Works, said Staff is excited to make the City's first transit ridership report to the Committee. He said Embark began operating the fixed route bus system on August 5, 2019, and things are going fairly smoothly. He said OU will continue to operate the paratransit system (CARTaccess) through October 1, 2019, when the City will take over that operation. He said one mechanic position has been filled and Staff hopes to have the second position filled within the next few weeks. Chairman Holman said there have been numerous complaints from the community regarding the paratransit system and he is looking forward to the City taking that system over on October l st. Community Planning and Transportation Committee Minutes September 26, 2019 Page 7 Item 1, continued: Mr. O'Leary said Council authorized a contract with OU to continue operating the paratransit system through October I st; however, they have been having a difficult time keeping drivers because OU laid off over 40 Cleveland Area Rapid Transit (CART) employees and Embark did not rehire them all. He said the lack of drivers has significantly impacted ridership numbers. Mr. Taylor Johnson, Public Transit Coordinator, said fiscal year-to-date ridership (July to August) had a decrease of 23% over the same period last year. Paratransit had a decrease of 26% over the same period last year. Year-to-date primary zone ridership decreased by 37% while secondary zone ridership decreased by 16%. He said these decreases are contributed to cutting Saturday service as well as the 30-minute frequency on the Main Street and Alameda Street fixed route services. Chairman Holman said hopefully once the transition to the City is in place and stabilized, those ridership numbers will increase or even out. Mr. Johnson said there may be some blips in the coming months that may impact ridership numbers, but the numbers should become more stable over time and the City will have a good baseline of what should be expected moving forward. Mr. Johnson said training and transition of paratransit technology and hardware is being scheduled and finalized with the vendor. He said initial meetings regarding the joint transit and public safety maintenance facility to be constructed near the current City Fleet Maintenance operations on DaVinci Street have begun. City Staff continues to work with the Federal Transit Authority (FTA) to obtain access into grant and reporting systems. Chairman Holman asked if the paratransit technology will reduce the time riders have to schedule rides in advance and Mr. Johnson said Embark does not use the same technology that CARTaccess used so the City is trying to get Staff up-to-speed on route match capabilities. He said seven days in advance is the maximum number of days that can be scheduled for a ride. Chairman Holman said there is confusion on when paratransit customers can schedule rides. Ms. Marilyn Dillon, Mobility Management Administrator with Embark, said Embark will be transitioning Norman to a one to seven days in advance scheduling system so riders can schedule rides throughout the following week. She said this scheduling allows customers who use the system to commute to work or school to make one phone call and schedule up to seven days in advance. She said beginning October 1st, customers can call Embark Plus to schedule rides. Chairman Holman said paratransit riders have been able to schedule rides several weeks in advance through CARTaccess for doctor appointments or physical therapy appointments, so can the City find a way to accommodate that with the new system? Mr. Johnson said the CART access procedure allowed riders to schedule up to fourteen days in advance, but if they scheduled trips farther out then that might have been done as a courtesy rather than procedure. He believes Embark Plus only schedules up to seven days for operational purposes and Ms. Dillon said that is correct, it is an operational issue because when riders start scheduling beyond seven days, another Staff person is needed to handle cancellations because plans can change. She said once a ride is scheduled that seat is gone and if that person cancels then that ride has been denied to someone Community Planning and Transportation Committee Minutes September 26, 2019 Page 8 Item 1, continued: else wanting that seat. She said when someone schedules beyond seven days it creates scheduling and staffing issues. Mr. Johnson said the City can review procedures after the transition is done and make adjustments as needed going forward. Mr. Johnson said subscription service may be available for trips taken in the Zone 1 service area from the same place, to the same location, at the same time, and on the same day(s) of the week at least three days a week for at least six months' duration. Council member Bierman asked what a subscription service is and Ms. Dillon said the subscription service is considered a premium service and is offered in the Zone I service area only. She said riders can request a paratransit subscription service application and once approved for subscription services, the subscription trips are fixed and automatically scheduled each week. Any changes to an approved subscription trip, such as a new trip address or time change, will require a new subscription application. She said the subscription service has a perpetual waiting list so as soon as someone comes off the list the next person goes on the list. She said Embark Plus will make all reasonable modifications to policies and procedures to ensure that people with disabilities have an equal opportunity to enjoy its programs, services, or procedures to participate in a program. Mr. O'Leary said the paratransit operation requires pre-certification and as part of the transition, Embark needed time to transfer approximately 800 pre-certified riders. He said if a rider is not certified, they cannot get a trip and pre-certification is an elaborate, lengthy process. He said Embark will be reviewing the list of pre-certified applicants to remove applicants that no longer need the paratransit system. Mr. O'Leary said as of October 1st, CART and CARTaccess will no longer exist. He said Embark Plus is the new paratransit provider and Embark is the new fixed route transit provider. He said when the City decided to contract with Embark to provide transit services the City also accepted their policies. He said over the course of the next year or so Council will want to review and perhaps modify policies, but there will be a price for that. He said by virtue of the contract, the City also accepted Embark's fare structure, which is why the City has fi:ee fares in the interim phase. He said Staff is recommending Council extend the free fare policy because Em bark' s fares are higher in cost. He said the election to be held in November for the one-eighth percent sales tax for transit operations is really important for funding the transit system and if the sales tax does not pass the City will have to find another funding source. Mr. Johnson highlighted the public transportation services fare structure and said the last fare change was in January 2014 as follows:  Community Planning and Transportation Committee Minutes September 26, 20 19 Page 9 Item 1, continued: • Fixed-route single trip - $0.50 to $0. 75 o Reduced fare - $0.25 to $0.35 • Sooner Express single trip - $2.25 to $3.00 o Reduced fare - $ 1.10 to $ 1.50 • Monthly Pass - $20.00 to $25.00 o Reduced fare - $10.00 to $12.50 • Paratransit Zone l - $1.00 to $1.50 • Paratransit Zone 2 - $2.50 to $3.50 • Paratransit Same -Day Urgent - $2.50 to $3.50 CART Reduced fares are available for youths 6 years old to 17 years old, seniors 60 years old or older, persons with disabilities, and Medicare cardholders. Persons under the age of six (6) ride free. Mr. Johnson highlighted Embark's fare structure as follows: FIXED-ROUTE OU/CART EMBARK Fixed Route Single-Trip $0.75 $1.75 Reduced Fare $0.35 $0.75 Sooner Express Single-Trip $3.00 $3.00 Reduced Fare $1.50 $ 1.50 Monthly Pass $25.00 $50.00 Reduced Fare $12.50 $25.00 7 Dav Pass NIA $14.00 Reduced Fare NIA $7.00 1 Day Pass NIA $4.00 Reduced Fare NIA $2.00 PARATRANSIT OU/CART EMBARK Zone l $ 1.50 $3.50 Zone 2 $3.50 $7.00 Zone 3 NIA $ 10.50 Same Day Urgent $3.50 NIA Embark's reduced fares are available for youths 7 years old to 17 years old, seniors 65 years old or older, persons with disabilities, and Medicare cardholders. Persons under the age of seven (7) ride free. Reduced fare riders must have a reduced fare card. Community Planning and Transportation Committee Minutes September 26, 2019 Page I0 Item I, continued: Councilmember Petrone asked if there is a map of the paratransit zones and Mr. O' Leary said he will provide that information to Council as soon as possible. He said when campus routes were removed from the City's transit routes, Zone l boundaries changed to go farther north so Highway 9/Lloyd Noble are no longer in Zone 1. He said the City is receiving federal funds and is required to provide service to Zone I, but is not required to provide service to Zone 2 or Zone 3 (although there has never been a Zone 3). Chairman Holman said if the City is not going to provide permanent free fares, then the City should have a phased approach over the next tlu·ee years and if funding is available, subsidize the paratransit fares. He would ultimately like paratransit service to be a no cost service to the rider. Mr. Johnson said estimated fare revenues include FY 19 OU/CART Cash Fare - $54,000; FY19OU/CART Fixed-Route Pass Sales - $6,000; FY19 OU/CART CARTaccess $15 Punch Cards - $19,000; and allocated (City) funds for Community Development Block Grant (CDBG) Bus Passes - $35,000 for total estimated fare revenues of $114,000. The cost of upgrading fare technology includes estimated cost of modern fare boxes - $330,000 and estimated cost of fare collection infrastructure at facility - $30,000 for a total estimated one­ time upgrade cost of $360,000. Total estimated ongoing annual costs include sublet repairs of electronic fare boxes - $50,000 and estimated cost for a security company to transport fares - $12,000 for total estimated ongoing annual costs of $62,000. Mr. Johnson said in the past, CART chose a more fundamental fare box and decided not to upgrade due to the cost of the changes and relatively small amount of revenue. The cost of upgrading to a more modern fare box is expensive. He said free fare can save capital costs of fare box improvements and potentially increase ridership; however, the operations cost of paratransit could increase with higher ridership. He said fare increases can generate more revenue to offset costs; however, it can also lead to a decrease in ridership. A rough rule of thumb is for every 3% increase in fares, there is a I% decrease in ridership. Council member Wilson said if the one-eighth percent sales tax is approved by voters can the City commit to a free fare system and Mr. O ' Leary said that is an option. Chairman Holman said free fares give the City the ability to save a significant amount of money on capital costs. Chairman Holman said the paratransit transition has been difficult for the disabled community and wondered if taxi companies or Uber/Lyft can be required to have an Americans with Disabilities (ADA) vehicle in their fleet before they are allowed to operate in Norman. He said this would give disabled riders an option for same day service not currently offered by Embark Plus. Councilmember Wilson asked what the City needed to do to make sure taxi companies and Uber/Lyft have ADA vehicles in their fleet and Ms. Kathryn Walker, Interim City Attorney, said Uber and Lyft are regulated by the State and municipalities cannot regulate them. She will research Community Planning and Transpottation Committee Minutes September 26, 2019 Page 11 Item 1, continued: requiring taxi companies operating in Norman to have an ADA compliant vehicle. Mr. O'Leary said it is costly to modify taxis for ADA and specialized training is required for drivers so that may be a reason some taxi companies do not have ADA vehicles. He said he has every confidence that once Embark Plus takes over on October 1st, they will get operations back to full service. He said OU/CARTaccess let the City down this last month because their contract with the City was to provide the same service through October 1st, but they did not do that and he apologized for the inconvenience this has caused the disability community. Mr. Johnson said Staff is recommending the City extend the free fare period to December 31, 2019, to further evaluate the operations of the system and perform a more in depth analysis of the potential impacts of fare options. The Committee was in full agreement to move forward and directed Staff to prepare a contract amendment for Council review. [terns submitted for the record 1. Public Transit Monthly Report for July and August 2019 2. PowerPoint presentation entitled, " Public Transportation Services Norman Fare Discussion," Community Planning and Transportation Committee, dated September 26, 2019 3. Embark Plus Information Pamphlet 4. Letter dated September 24, 2019, from Embark Mobility Management to CART Access Customers ***** Item 2, being: DISCUSSION REGARDING OKLAHOMA'S BLOCKED CROSSING STATUTE RELATED TO RAILROADS. Chairman Holman said there are 17 crossings in Norman spanning a 14-mile stretch from the southern city limits to the northern city limits and there is one crossing at Highway 77 and Post Oak Road that is consistently blocked for long periods of time. He said that crossing is the only entry and exit to the neighborhood to the south, which can pose a danger in an emergency situation, such as the need for an ambulance, fire truck, etc. He asked Staff to present information on a new state statute regarding blocked railroad crossings. Mr. Anthony Purinton, Legal Intern, said the Oklahoma Legislature recently adopted legislation which prohibits railroad companies from stopping their trains at a railroad crossing and blocking traffic for more than ten minutes. The Corporation Commission recently adopted an emergency rule providing procedures for municipalities wishing to enforce this law. ln response to two citations by the Cities of Edmond and Davis, Burlington Northern Santa Fe (BNSF) Railway filed a federal lawsuit against the two cities with the Oklahoma Corporation Commission seeking (I ) a Community Planning and Transpo1tation Committee Minutes September 26, 2019 Page 12 Item 2, continued: declaratory ruling that Oklahoma's Blocked Crossing Statute is preempted by federal law and (2) a preliminary injunction preventing the defendants from enforcing the statute. Mr. Purinton said violations are subject to a penalty of up to $ 1,000 and the Corporation Commission is the public body authorized to adjudicate these citations. Pursuant to that authority, the Corporation Commission adopted procedural rules for how to bring an enforcement action with the Commission. He said the statute excludes circumstances where the train is stopped for emergency situations, such as accidents, derailments, critical mechanical failures, washouts, and hazardous weather conditions. Companies are also given a one-time ten-minute additional extension if the train is completing a switching maneuver, allowing the passage of a second train, or stopping for a red train signal. Mr. Purinton said upon issuing a citation, the City must thereafter file an enforcement action with the Corporation Commission. The enforcement action would consist of a complaint and a citation for contempt, which is a legal pleading that needs to be drafted by the City Attorney. The City Attorney must include both the issued citation and the train identification so the appropriate train company can be charged. Recently, the Oklahoma's Blocked Crossing Statute has been challenged in federal court under the theory of federal exemption. He said BNSF' s argument that the statute is preempted under federal law holds significant merit. He said Staff recommends the City forgo enforcing the statute until the ongoing litigation results in a decision on the merits. He said seeking enforcement of these statutes prior to any judicial determination of the statute's validity would open the City to litigation. Mr. Scott Olsen, 4408 Springlake Drive, asked if residents should call the police if the crossing is blocked for more than ten minutes because he has waited over an hour at times for the train to move. Ms. Pam Kelleher, 1609 Post Oak Road, said she has called the police when the crossing is blocked and they refer her to BNSF who does not seem to care that the neighborhood is locked in. She said it is not unusual for the train to block the crossing for more than an hour and one resident lost her job because she could not get to work due to the train continually blocking the crossing. She said there are a lot of senior citizens in the neighborhood and a pregnant woman who is worried she will not be able to get to the hospital if the crossing is blocked when she goes into labor. Mr. Mike Kelleher, 1609 Post Oak Road, said this is the only area in Norman where there is no way out if a train blocks the crossing. He said he has lived in the neighborhood for 26 years and has complained to politicians, bureaucrats, corporate people, dispatchers, railroad authorities, law enforcement, etc. , and nothing has changed. He said 15 years ago the neighborhood had access alongside the railroad side to Cedar Lane Road, but the railroad found out the road was being used by the neighborhood and dumped a mountain of gravel in the middle of the road cutting off that access. When he called the railroad about the gravel he was told the people using that road are trespassing on railroad property. He said the easiest thing to do would be to stop the train 2,000 feet prior to the Post Oak Road crossing and while that is not great for crossings further up Community Planning and Transportation Committee Minutes September 26, 2019 Page 13 Item 2, continued: the line at least those neighborhoods have other entry/exit options. He said one day a house is going to burn down or someone is going to die and it will be a bad situation. He was very disappointed to learn that the City of Norman is not going to enforce the new statute. He urged Council to call the railroad and ask them to please not block that crossing or build an exit road to Cedar Lane Road. He said a dirt road would be better than nothing. Ms. Walker said the City does not get better responses from the railroad than any other person. She said if the City cites the railroad, the City will be pulled into the litigation with Edmond and Davis and the City of Norman would rather wait to see how that litigation plays out. Councilmember Wilson asked if there is a way to make the railroad build an access for the neighborhood and Ms. Walker said no, they are so heavily regulated it would be difficult to find a loophole that would allow the City to do that. She said the City and neighborhood should be contacting their federal delegations regarding blocked crossing issues. Ms. Walker said the Cedar Lane Addition is supposed to eventually connect that neighborhood to Cedar Lane Road and Staff could meet with the developer to see if they would be willing to move up that timeline. Mr. Olsen said if there is a way to get another road built so the neighborhood is not trapped for hours then that would be very helpful. Mr. O'Leary said this is not a new problem and as that private development moves forward from Cedar Lane Road there will eventually be an access point to the neighborhood. He said the neighborhood should have been required to provide their own access 30 or 40 years ago and they did not have to do that, but those regulations have changed since that time so this type of situation cannot happen . He said all of the land being developed is privately owned and the City cannot make the developer build faster. He said the most practical approach would be for the City to purchase right-of-way and build a road and Staff can calculate those costs for Council's consideration. Councilmernber Hall said she would like the C ity to be creative and find a way to build another entry/exit road for this neighborhood and Committee members agreed. Items submitted for the record 1. Memorandum dated September 19, 2019, from Anthony Purinton, Licensed Legal Intern, and Jeanne Snider, Assistant City Attorney, to City Council Community Planning and Transportation Committee 2. City of C ityville, Oklahoma, Citation and Notice of Hearing 3. PowerPoint presentation entitled, "Railroad Blocking Statute," Community Planning and Transportation Committee dated September 26, 2019 ***** Community Planning and Transpo1tation Committee Minutes September 26, 2019 Page 14 Item 4, being: MISCELLANEOUS COMMENTS. None ***** The meeting adjourned at 6:36 p.m.