MARIJUANA AND ZONING:

THE ROLE OF LOCAL GOVERNMENT

DAVID A. GALAZIN, ASSISTANT CITY ATTORNEY, CITY OF KENT

DISCLAIMER: The views expressed herein are solely those of the author, and are not meant to pertain to any official position taken by the city of Kent

regarding the current or future zoning of marijuana-based businesses and/or other marijuana-related land uses.

HEY, WHAT GIVES YOU THE RIGHT???

• Article XI, Section 11, Washington State Constitution:

• “Any county, city, town or township may make and enforce within its limits

all such local police, sanitary and other regulations as are not in conflict

with general laws.” (Emphasis added.)

• Local ordinances entitled to presumption of constitutionality

• All comes down to preemption:

• Field preemption – express or implicit legislative intent to deprive local

jurisdictions of their inherent authority

• Conflict preemption – ordinance cannot be “harmonized” with statute

RECOGNITION OF LOCAL CONTROL

• RCW 69.51A.140(1):

• Cities and towns may adopt and enforce any of the

following pertaining to the production, processing, or

dispensing of cannabis or cannabis products within

their jurisdiction: Zoning requirements, business

licensing requirements, health and safety

requirements, and business taxes. Nothing in chapter

181, Laws of 2011 is intended to limit the authority of

cities and towns to impose zoning requirements or

other conditions upon licensed dispensers, so long as

such requirements do not preclude the possibility of

siting licensed dispensers within the jurisdiction. If

the jurisdiction has no commercial zones, the

jurisdiction is not required to adopt zoning to

accommodate licensed dispensers. (Emphasis added.)

INITIATIVE-502

PART I – INTENT

NEW SECTION. Sec. 1. The people intend to stop treating adult marijuana

use as a crime and try a new approach that: (1) Allows law enforcement

resources to be focused on violent and property crimes; (2) Generates new

state and local tax revenue for education, health care, research, and

substance abuse prevention; and (3) Takes marijuana out of the hands of

illegal drug organizations and brings it under a tightly regulated, state-licensed

system similar to that for controlling hard alcohol. This measure

authorizes the state liquor control board to regulate and tax marijuana for

persons twenty-one years of age and older, and add a new threshold for

driving under the influence of marijuana. (Emphasis added.)

INITIATIVE-502

PART III – LICENSING AND REGULATION OF MARIJUANA

PRODUCERS, PROCESSORS, AND RETAILERS

NEW SECTION. Sec. 6.

. . .

(8) The state liquor control board shall not issue a license for any premises

within one thousand feet of the perimeter of the grounds of any elementary or

secondary school, playground, recreation center or facility, child care center,

public park, public transit center, or library, or any game arcade admission to

which is not restricted to persons aged twenty-one years or older.

(Emphasis added.)

NOWHERE DOES THE WORD “ZONING” APPEAR ANYWHERE IN I-502.

INITIATIVE-502

• ATTORNEY GENERAL OPINION, JANUARY 16, 2014

• AGO 2014 No. 2 – request from the Washington State Liquor

Control Board: can local governments ban I-502 businesses?

• Short answer? YES.

• No field preemption

• No conflict preemption

• “…the relevant question is not whether the initiative provided local

jurisdictions with such authority, but whether it removed local

jurisdictions’ preexisting authority.” (Emphasis added.)

• Board’s own rule supported this conclusion: “The issuance or

approval of a license shall not be construed as a license for, or an

approval of, any violations of local rules or ordinances including,

but not limited to: … zoning ordinances…” WAC 314-55-020(11)

• ATTORNEY GENERAL OPINION, JANUARY 16, 2014

• Not controlling, but given deference by the courts.

• Nonetheless, this question is currently being litigated.

• See, e.g., MMH, LLC, et al., v. City of Fife (after Fife’s motion for

summary judgment was granted by the Superior Court, the

marijuana business appealed that ruling; oral arguments were

heard before Division II of the Court of Appeals on January 22,

2016, and a decision is currently pending).

INITIATIVE-502

ZONING/PLANNING UNDER THE GMA

• Legislative body distinction and the Growth Management Act

• “The power to enact regulations under the Growth Management Act (GMA),

chapter 36.70A RCW, is specifically granted to the legislative authority of

cities and counties. As summarized in the following cases, the courts have

addressed the use of initiative and referendum when related to the GMA in a

number of cases and have found that the powers are invalid when pertaining

to a regulation adopted under the Act:”

• 1000 Friends of Wash. v. McFarland, 159 Wn.2d 165 (2006).

• City of Seattle v. Yes for Seattle, 122 Wn. App. 382 (2004), rev. denied, 153 Wn.2d 1020 (2005).

• Whatcom County v. Brisbane, 125 Wn.2d 345 (1994).

• Snohomish County v. Anderson, 123 Wn.2d 151, and 124 Wn.2d 834 (1994).

• “As these cases make clear, the powers of initiative and referendum do not

apply to ordinances adopted pursuant to the Growth Management Act.”

• http://mrsc.org/Home/Publications.aspx - Initiative and Referendum Guide for Washington City and Charter Counties

FEDERAL PREEMPTION

• Marijuana Schedule I controlled substance under CSA

• 4 types of preemption:

1. Express

2. Field

3. Obstacle

4. Conflict

FEDERAL PREEMPTION

• CSA preclusion of express, field preemption

• Conflict preemption:

• Impossible to comply with both laws simultaneously

• Obstacle preemption:

• Acts as obstacle to accomplishment of Congressional intent

• Pack v. City of Long Beach, 199 Cal.App.4th 1070 (2011)

• Emerald Steel Fabricators v. Bureau of Labor and

Industries, 348 Ore. 159 (2010)

RECENT LEGISLATIVE CHANGES

• Federal government mandate for Washington to combine

“medical” and “recreational” marijuana into one system

• Washington Supreme Court’s 8-1 decision upholding

Kent’s zoning ban on medical marijuana “collective

gardens” (Cannabis Action Coalition v. City of Kent, 183

Wn.2d 219, 351 P.3d 151 (2015))

• State legislative response:

• Second Substitute Senate Bill 5052 (2015) – “SB 5052”

• Second Engrossed Second Substitute House Bill 2136 (2015) –

“HB 2136”

• Expanded rulemaking by Liquor and Cannabis Board

SB 5052

• Created a new category of licensed marijuana retailer: a

retailer holding a “medical marijuana endorsement”

• Must be able to enter customers into the state-maintained

database of “qualifying patients” and “designated providers” and

issue “recognition cards” verifying the same

• May sell products with a THC concentration “of 0.3 percent or

less”

• Authorizes licensed processors to use “butane or other

explosive gases to extract or separate resin from

marijuana”

• Repealed RCW 69.51A.140 (but is this of any

consequence?) [HINT: the answer is “NO”]

SB 5052

• Also repeals the “collective garden” statute in July, 2016

• Replaces them with patient “cooperatives” (once collectives go)

• Limited to four or fewer qualifying patients or designated providers

• All participants must be registered in State database

• Location must be approved by the LCB – cannot be within one mile of

an existing marijuana retailer, and must be in the domicile of one of

the members (meaning a residential area)

• Designed to be what “collective gardens” were supposed to be

• Added new section relating to local nuisance laws:

• Unless a “cooperative,” one housing unit limited to max. 15 plants

• Personal growing can be abated through local nuisance laws if it

can be “readily seen” or “readily smelled” from a public place or

from another housing unit

HB 2136

• Originally intended as a companion bill to SB 5052

• Focused more on taxation issues, but with certain riders

• e.g., certain state-collected taxes may only be shared

with “jurisdictions that do not prohibit the siting of any

state licensed marijuana producer, processor, or

retailer.” (Emphasis added.)

• Gave cities authority to reduce the thousand-foot buffer

from protected uses, up to a minimum of 100 feet,

except for schools and playgrounds

• One area where statute requires LCB to comply with

local law – otherwise LCB ignores local law

HB 2136

Buried within HB 2136 is one provision that states:

• “. . . a city, town, or county may adopt an ordinance

prohibiting a marijuana producer or marijuana processer

from operating or locating a business within areas zoned

primarily for residential use or rural use with a minimum

lot size of five acres or smaller.”

• Does this pose a preemption problem?

• How does it square with the rest of HB 2136?

• Courts give great weight to local zoning authority – any legislative

intent to take it away must be very clear

• e.g., essential public facilities (RCW 36.70A.200(5)); family day care providers

(RCW 35A.63.215(1)); adult family homes (RCW 70.128.140(2))

• Does this one inconsistent, ambiguous provision evince clear legislative intent?

WHAT ABOUT THOSE ADMINISTRATIVE RULES

ANYWAY?

(WAC 314-55-010)

Washington State Liquor and Cannabis Board cannot issue a license within a

thousand feet of certain uses (unless reduced by local ordinance), such as:

• (20) "Playground" means a public outdoor recreation area for children, usually

equipped with swings, slides, and other playground equipment, owned and/or

managed by a city, county, state, or federal government.

• (21) "Public park" means an area of land for the enjoyment of the public, having

facilities for rest and/or recreation, such as a baseball diamond or basketball court,

owned and/or managed by a city, county, state, federal government, or metropolitan

park district. Public park does not include trails.

• (23) "Recreation center or facility" means a supervised center that provides a broad

range of activities and events intended primarily for use by persons under twenty-one

years of age, owned and/or managed by a charitable nonprofit organization, city,

county, state, or federal government.

WHAT ABOUT THOSE DEFINITIONS?

• Is this a playground?

WHAT ABOUT THOSE DEFINITIONS?

• Is this a public park?

WHAT ABOUT THOSE DEFINITIONS?

• Is this a recreation center or facility?

“DEFERENCE” AND ADMINISTRATIVE

LAW

• RCW 69.50.342 and 69.50.345 authorize the LCB to adopt administrative

rules to implement and administer the provisions of I-502

• Washington state case law is clear: “rules that are inconsistent with the

statutes they implement are invalid.” (Bostain v. Food Express, 159 Wn.2d

700, 715 (2007))

• Agencies typically afforded deference when interpreting statue through rule-

making, but “deference to an agency interpretation is appropriate only if the

statute is ambiguous.” (Food Express at 717)

• “. . . when a statute is ambiguous, the construction placed upon the rule by

the administrative agency charged with its administration and enforcement

should be given great weight in determining legislative intent. . . Simply

because the words of a statute are not defined in the statute does not make

the statute ambiguous. If that were true, the majority of statutes would suffer

from ambiguity.” (Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801,

813-814 (1992))

“DEFERENCE” AND ADMINISTRATIVE

LAW

• “[The Washington Supreme Court] has the

ultimate authority to interpret a statute, and

deference is accorded an agency's interpretation

only if (1) the particular agency is charged with

the administration and enforcement of the

statute, (2) the statute is ambiguous, and (3) the

statute falls within the agency's special

expertise.” (Food Express at 716.) (Emphasis added.)

• What is the Washington State Liquor and Cannabis

Board’s area of “special expertise?” Hmm…

BACK TO STATE LAW

RCW 69.50.331(8): Unless local ordinance reduces certain buffers,

the LCB cannot issue a marijuana license for any premises with one

thousand feet of:

• an elementary or secondary school;

• a playground;

• a recreation center or facility;

• a child care center;

• a public park;

• a public transit center;

• a library; or

• any game arcade admission to which is not restricted to persons

aged twenty-one years or older.

BACK TO THE WACS

• WAC 314-55-20(11): “The issuance or approval of a license

shall not be construed as a license for, or an approval of, any

violations of local rules or ordinances including, but not limited

to: Building and fire codes, zoning ordinances, and business

licensing requirements.”

• WAC 314-55-050(10): “The board shall not issue a new

marijuana license if the proposed licensed business is within

one thousand feet of the perimeter of the grounds of any of

the following entities. The distance shall be measured as the

shortest straight line distance from the property line of the

proposed building/business location to the property line of

the entities listed below:”

COLLECTIVE GARDENS OUT/

PATIENT “COOPERATIVES” IN

• SB 5052: “The location of the cooperative must be the domicile of one of the

participants. Only one cooperative may be located per property tax parcel.”

(Emphasis added.)

• But what one hand giveth, the other taketh away... (HB 2136): “No

cooperative may be located in any of the following areas: . . . Where

prohibited by a city, town, or county zoning provision.” (Emphasis added.)

SO WHAT’S A CITY TO DO?

• Do nothing. Most city codes have permissive zoning.

• Always the chance you have to respond to a “zoning determination” request

• Prohibit all marijuana-based land uses.

• Many cities have taken this route; it’s been endorsed by the AG’s Office; and so

far it has been supported by the courts. But there’s still some risk, on both sides –

what happens after the next Presidential election?

• Allow all marijuana-based land uses.

• Which uses fit in which zones? Should you require dispersal? Even so, no

guarantee that, “if you zone it, they will come…”

• Allow only some marijuana-based business uses.

• Producers and processors, but no retailers; only allow retailers, provided they

have a medical marijuana endorsement; but there are financial consequences

• Patient “cooperatives” – allow them? Or not?

• Be uber-permissive, and reduce your buffers while you’re at it!

SO WHAT’S A CITY TO DO?

• “This above all – to thine own self be true. . .”• Hamlet, Act I, Scene III

• This above all – remember that these are all

LAND USE DECISIONS!• Cities are not obligated to ensure that the Federal CSA is the law

of the land in their Medium-Density Multi-Family Zoning Districts.

• Never suggest that your legislative body adopt a zoning

ordinance based on “Just Say No.”

• Whatever tack your jurisdiction takes, remember to treat

marijuana-based land uses no differently than any other

land uses, lest your regulations be questioned.

WHAT TO DO WHEN YOU RECEIVE A

NOTICE OF APPLICATION FROM THE LCB

• The LCB must notify the local jurisdiction before it can

issue a new license, or renew an existing license

• The jurisdiction has 20 days to respond with any

objections, and may request a hearing

• The LCB will flatly refuse to consider local zoning ordinances,

other than those that pertain to reduced buffers

• But remember WAC 314-55-020(11) – it’s not a “super-license”

• Always a good idea to check the 1000-foot radius

• Remember: it is from property line to property line

• And the LCB doesn’t always get it right

• A license may always be opposed based on “chronic

illegal activity” – but this can be a high bar to clear

WHO CAN CHALLENGE THE LCB? AND HOW?

• Recent case from Division I of the State Court of Appeals• City of Burlington v. State Liquor Control Board, 187 Wn. App. 853 (2015)

• “Standing” is a legal term of art – means that someone (or

some entity) has the right to sue under the statute at issue

• Liquor Control Board issued a liquor license over a city’s

objection; the city sued, arguing that issuance of the license

was in violation of the law due to the proximity to a school

• Superior Court dismissed the case, but the COA held:

• “where, as here, the Board issues an alleged illegal license, no person or

entity possesses a more compelling interest for standing purposes than

the City.”

• Amicus brief filed by WSAMA in support of the city, noting that the

implication for liquor licenses would be equally applicable to state-issued

marijuana licenses as well

“THE PEOPLE HAVE SPOKEN!”

(SO WHY ARE CITIES AND TOWNS HOLDING OUT?)

• “It is one of the happy incidents of the federal

system that a single courageous State may, if its

citizens choose, serve as a laboratory; and try

novel social and economic experiments without

risk to the rest of the country.”• New State Ice Co. v. Liebman, 285 U.S. 262 (1932) (J. Brandeis,

dissenting)

HERE I GO AGAIN, ON MY OWN…

• Possibilities?

1. Local ordinance in conflict with I-502 and subsequent

legislation

2. Local regulations in conflict with federal CSA

3. I-502 in conflict with CSA

• Courts favor coexistence where possible

• Federal preemption if a choice is forced?