HomeMy WebLinkAbout6416 ORDINANCE NO. 6 41 6
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF AUBURN, WASHINGTON, CREATING A SECTION
1.04.060 OF THE AUBURN CITY CODE'AND AMENDING
SECTION 18.02.020 OF THE AUBURN CITY CODE,
RELATING TO CONFLICTS WITH STATE OR FEDERAL
LAW AND ENGROSSED SECOND SUBSTITUTE SENATE
BILL 5073 REGARDING MEDICAL CANNABIS
COLLECTIVE GARDENS AND MEDICAL CANNABIS
DISPENSARIES
WHEREAS, Initiative Measure No. 692, approved by the voters of Washington
State on November 3rd, 1998 and now codified as chapter 69.51A RCW, sougM to
create an affirmative defense for "qualitying patients° to the charge of possession of
marijuana (cannabis); and
WHEREAS, more recenUy, during the 2011 session, the Washington State
Legislatu�e considered a bill (E2SSB 5073, ultimately adopted as Chapter 181, Laws of
2011) that would have legalized by authorizing the licensing of inedical marijuana or
cannabis dispensanes, producUon facilities, and processing facilities; and
WHEREAS, on April 29, 2011, Govemor Christine Gregoire vetoed the portions
of E2SSB 5073 that would have provided the legal basis for legalizing and licensing
medical marijuana or cannabis dispensaries, processing facilities and production
facilities; and
WHEfiEAS, in order to provide qualiTying patients with a new means of access to
an adequate, safe, consistent and secure source of inedical cannabis, E2SS6 5073
also contained a provision authorizing "coliective gardens" which wouid authorize
qualifying patients the ability to produce, grow, process, transport and deliver cannabis
Ordinanoe No.6416
June 11„2012
Page 1 of 10
for medical use, and that provision was approved by Govemor Gregoire, effective on
July 22, 2011, and
WHEREAS, E2SSB 5073, as approved, further authorized cities to adopt and
enforce zoning requirements regarding production and processing of inedical cannabis;
and
WHEREAS, cannabis remains a controlled substance under the Controlled
Substances Act, 21 U.S.C. Ch. 13 and the U.S. Department of Justice and United
States Attomeys in the State of Washington have continued to maintain that cannabis
. (marijuana) is illegal to possess, distribute, dispense or manufacture under federal law;
and _
WHEREAS, Section 18.02.020 of the City Code, states that the City of Aubum
comprehensive zoning ordinance is adopted pursuant to the authority of Article XI,
Section 11 of the Washington State Constitution; and
WHEREAS, ArGcle XI, Sedion 11 of the ConsUtudon of the State of Washington
autliorizes each city and county to "to make and enforce within its limits all such local
police, sanitary and other regulations as are not in conflict with general laws"; and
WHEREAS, the test for determining whether an ordinance conflicts with general
laws is "whether the ordinance permits or licenses that which the statute forbids and
prohibits, and vice versa°'; and
'See Parkiand Ught 6 Water Co. v. TacomaPierce County 8d. of Hea/th, 151 Wn.2d 428, 433, 90 P.3d'
37(2004); Cily of Beliingham v. Schampera, 57 Wn.2d 106, 111, 358 P.2d 292 (1980)(quoting Salt Lake
City v. Kusse, 97 Utah 113, 119, 93 P.2d 871 (1938)), aocoro ctry a seame�. wn�ams, 128 Wn.2d 341,
352,908 P.2d 359(1995).
Ordinance No.8416
June 11, 2012
Page 2 of 10
WHEREAS, on August 15, 2011, the City Council adopted Resoludo� No. 4739,
providing for an initial one year moratorium on the establishment of inedical cannabis
�Ilective gardens and set a public hearing for September 19, 2011, in order to take
public tes6mony regarding the moratorium and interim regulations; and
WHEREAS, pursuant to RCW36.70A.390 a public hearing was held on
September 19, 2011, and no public testimony was received; and
WHEREAS, the City Council sought to identify what changes in the City Code
would be necessary and/or appropriate to address collective gardens as described in
Engrossed Second Substitute Senate Bill 5073 as approved by Govemor Gregoire on
April 29, 2011, and
WHEREAS, the City Council refeRed the matter to the Planning Commission for
review and recommendation on the issue of cannabis collective gardens; and
WHEREAS, as part of the process for the adoption of zoning regulations, the
land use impacts of collective gardens must be idenUfied; and
WHEREAS, many jurisdictions around the country that have approved medical
marijuana uses have experienced numerous land use impacts, such as:
• conversion of residential uses into marijuana cultivation and processing
facilities, removing valuable housing stock in a community;
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June 11, 2012
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• degrading neighborhood aesthetics due to .shuttered up homes, offensiye
odors; increased night-time traffic; parking issues; loitering from potential purchasers
looking to buy from a collective member;
• environmental damages from cliemicals being discharged into sunounding and
off-site soil arid storm and sanitary sewer systems;
• serious risk of fire hazard due to overloaded service connections used to
operate grow lights and fans;
• improper verrtilation leading to'high levels of moisture and mold;
• illegal structural modifications; and
• criminal issues such as home invasions, burglaries of inedical marijuana
facilities, theft and property damage; and
WHEREA8, the Planning Commission reviewed the information on medical
marijuana and considered options available to the City; and
WHEI2EAS the Planning Commission .acknowledged that the issues pose
obstades for the City and put ttie City in the middie of a conflicts between the new state
law and federal law, as the state law seeks to perrriit what is criminally prohibited under
federal law; and
WHEREAS,,the Planning Commission deliberated and made a recommendation
to the City Council that the moratorium be extended for six (6) month to see whether
fiiture legislation could resolve the conflict orwhether the federal govemment could �e-
classify cannabis so that it could be used for medical purposes in a way consistent with
OrdinanCe No.,8418
.lune 11,2012
Page 4 of 10
state and federal �aw, or in some other way that would accammodate cannabis
collective gardens; and
WHEREAS, altematively, the Planning Commission felt that both the
Commission and the City were in the throws of a dilemma that could not be solved or
resolved at the ci.ty level; and
WHEREAS, the Planning Commission also recognized that it would not be
consisterrt with the municipal authority for the Commission to recommend for adoption,
o� for the City Council to enact, regulations as are in conflict with federal criminal laws;
and
WHEREAS, the reluctance to recommend or enact regulations that are in conflict
with federal criminal laws is further heightened because the U.S. Attomeys for this state
have indicated their intention to enforce federal marijuana laws, notwithstanding actions
by the state to decriminalize certain cannabis uses; and
WHEREAS, the City Council considered the Planning Commission's
recrommendations and concems; and
WHEREAS, the City Council considered the impacts of collective gardens and
cannabis dispensaries, potential regulations on the subject in light of the new legislation,
and other factors related thereto; and
WHEREAS, the City Councii has determined that Medical Cannabis Collective
Gardens "marijuana", is in conflict with current Federal law which recognizes marijuana
as a crorrtrolled substance; and
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June 11,2012
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WHEREAS, because possession of marijuana is illegal and is a criminal offense
under federal law, it would not be appropriate for the Gity to permit or allow possession
of marijuana to occur within the City, particularly as the actions of permitting or allowing
such could conceivably subject the persons involved - those being permitted to engage
in illegal conduct and those permitting others to engage in iilegal conduct Z - to criminal
prosecution; and
WHEREAS, the City Council has thus determined that because it is illegal under
federal law, the City should not permit or allow Medical Cannabis Coliective Gardens in
the City of Aubum,just as it should not permit or ailow any conduct that is illegal.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as follows:
Section 1 Findings. The Citp Council hereby adopts the foilowing findings
in support of this ordinance, together with the recitals expressed herein.
1 Following the 2011 Washington State Legislative Session, the City Council
considered the recent changes in state law that allowed local govemments to approve
and regulate "medical marijuana collective gardens."
2. On August 15, 2011, the City Council passed Resoiution No. 4739,
establishing a moratorium, which moratorium was imposed to provide adequate time to
refer this matter to the Planning Commission for study and for recommendations back to
the City Council on possible regulations that the City could implement on medical
marijuana oollective gardens.
'Cancern for oosslble orosetutlon for violation of federel mariivana laws of state emolovees involved In licensina
mariivane facllities was a basis for Gorernor Greeolre vetoina oortions of E?S58 5073.
Ordinance No.6416
June 11,201Y
Page 6 of 10
3. City Council held a public hearirig on September 19, 2011, in order to take
testimony regarding the moratorium and interim regulation. No public comment was
received.
4. The City Council remanded the matter to the Planning Commission for review
and development of recommendations for regulation of inedical marijuana collective
gardens.
5. At various meetings since the passage of City of Aubum Resolution No. 4739,
the Planning Commission held study sessions to review and discuss possible impacts of
collective gardens, including such things as:
a. Canversion of residential uses into marijuana cultivation and processing
facilfies, removing valuabie housing stock in a community;
b. Degrading neighbofiood aesthetics due to shuttered up homes, offensive
odors; increased night-dme traffic; parking issues; loitering from potential purchasers
looking to buy from a collective member,
c. Environmental damages from chemicals being discharged into surrounding
and off-site soil and storm and sanitary sewer systems;
d. Serious risk of fire hazard due to overloaded service connections used to
operate grow lights and fans;
e. Improper ventilation leading to high levels of moisture and mold;
L Illegal structural modifications; and
g. Criminal issues such as home invasions, burglaries of inedical marijuana
facilities, theft and property damage.
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June 11, 2012
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6. The Pianning Commission communicated its concems through staff and
forwarded its recommendations to the City Counal that the moratorium either be
ezfended to see if future state or federal acGon could resolve the conflict between state
and federal law, or that the City just recognize the fact that it cannot enact regulations
that are in conflict with federal law, and thus that it nbt pertnit, license or allow marijuana
facitities that violate federal law
Section 2. Engrossed Second Substitute Senate Bili 5073. Engrossed
Second Substitute Senate Bill 5073 [Chapter 181 of the laws (of the State of
Washington) of 2011 j, as it is currenUy worded, poses a conflict with federal law that the
City Council cannot reconcile, and thus the provisions of the bill cannot be enacted or
adopted into ordinance or city code.
3ection 3. New Section to City Code. A new Section 1.04.060 of the
City Code is created to read as follows:
1.04.060 Conflict of ordinances with state or fecleral law
All ordinances and city code provisions, and regulations therein,
shall riot be in conflict with all other regulations and or requirements of
state and federal law, insafar as not permitting or allowing any action, use
or conduct which is in violation of or prohitiited by any state or federal
laws, regulations br codes. Any such provisions that cannot be
implemented or enforced because of provisions of state or federal 9aw, or
that cannot be reconciled with any state or federal law shall be deemed to
be in �nflict therewith. Any provisions of atjr ordinances or of the aty
code deemed by the City Council to be in conflict with state or federal law
shall be null and void. This provision does not allow any action, use or
canduct which is in violation of any local, state or federal laws, regulations,
cbdes and/or ordinances. Any action, use or condud which is not
permitted or allowed is prohibited.
Section 4. Amendment to City Code. Section 18.02.020 of the City
Code is amended to read as follows:
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June 11,2012
Pape 8 of 10
18.02.020 Authority to adopt cade.
The city of Auburn comprehensive zoning ordinance is adopted by
city of Auburn ordinance, pursuant to Article XI, Section 11 of the
Washington State Constitution, ttie State Growth Management Act, RCW
TiUe 35A, Optional Muniapal Code, and Chapter 36.70B RCW In
accordance with Section 1.04.060 of the Citv Code: and notwithstandina
anv orovisions otherwise. this TiUe does not oertnit or allow anv action,
use oc c�nduct which is in violation of or nrohibited bv anv state or federal
lau"vs: �eaulation"s br codes. Anv action. use or coriduct which is nrohibited
bv state or federal law is orohibited herebv. (Ord. 6245 § 2, 2009.)
Section 5. Moratorium Cancelled. In accordance herewith, the Moratorium
estabiished by Resolution No. 4739 is hereby cancelled.
Section 6. Imolementation. The Mayor is hereby authorized to implement
such administrative procedures as may be necessary to carry out the directions of this
legislation, including directing the City Clerk, pursuant to RCW 36.70A.106(3), to send a
ccpy of this Ordinance to the State Department of Commerce for its files within ten (10)
days after adoption of tl�is ordinance, and further, forwarding copies of this Ordinance to
those persons who represent the citizens of the City of Aubum in the U. S. Congress
and in the Washington State legislature, to express concems about the stateffederal
conflict involving marijuana laws, the dilemma in which cities find themselves, and the
need far state and federal authorities to resolve the conflict.
Section T. Severabilltv. The provisions of this ordinance are declared to be
separate and severable. The invalidity of any dause, sentence, paragreph, subdivision,
section or portion of this ordinance, or the invalidity of the application thereof to any
person or circumstance shall not affect the validity of the remainder of this ordinance, or
the validity of its application to other persons or circumstances.
Ordinanoe No.8416
June'11,2012
Page 9 of 10
Section 8. Effective Date. This OMinance shall take effect and be in force
five days from and after its passage, approval and publication as provided by law.
INTRODUCED: �UL 16 2012
PASSED: JUL 16 2012
APPROVED: Jlll y„g �m�
CI O
.
r� �
PETER B. LE1MS, MAYOR
ATTEST
���.J
Darnelle E. Daskam, City Clerk
APP.R VED S TO FORM:
Daniel B. Hei ; ity Atto
r. rr�., ��J
Published: - �9 ����^'
,�J \�d/�`�� �.
Ordinance No.8416
June 11.2012
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