HomeMy WebLinkAbout6525 ORDINANCE NO. 6 5 2 5
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF AUBURN, WASHINGTON, AMENDING SECTIONS
1.04.060, 5.10.040, 9.22.010, 18.02.020 AND 18.07.010 OF
THE AUBURN CITY CODE, RELATING TO
ENFORCEMENT OF STATE REGULATIONS REGARDING
PRODUCTION, PROCESSING AND/OR RETAIL OUTLETS
AND SALES OF MARIJUANA, AND TERMINATING THE
MORATORIUM IMPLEMENTED PURSUANT TO
RESOLUTION NO. 4992, PASSED ON SEPTEMBER 16,
2013
WHEREAS, the City of Auburn has in its City Code a provision that precludes
enactment of City ordinances that are in conflict with state or federal law, as follows:
1.04.060 Conflict of ordinances with state or federal law.
All ordinances and city code provisions, and regulations therein, shall not
be in conflict with all other regulations and/or requirements of state and federal
law, insofar as not permitting or allowing any action, use or conduct which is in
violation of or prohibited by any state or federal laws, regulations or codes. Any
such provisions that cannot be implemented or enforced because of provisions of
state or federal law, or that cannot be reconciled with any state or federal law,
shall be deemed to be in conflict therewith. Any provisions of city ordinances or
of the city 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
conduct which is in violation of any local, state or federal laws, regulations, codes
and/or ordinances. Any action, use or conduct which is not permitted or allowed
is prohibited;
and
WHEREAS, on November 6, 2012, the voters of the State of Washington
approved Initiative Measure No. 502 ("Initiative 502"), now codified within Chapters
69.50, 46.04, 46.20, 46.21 and 46.61 of the Revised Code of Washington (RCW), which
Initiative (a) decriminalized possession and use of certain amounts of marijuana and
marijuana paraphernalia; (b) amended state laws pertaining to driving under the
influence of intoxicants to include driving under the influence of marijuana; and (c)
authorized promulgation of regulations and issuance of licenses by the Washington
----------------------------
Ordinance No. 6525
September 2, 2014
Page 1 of 11
State Liquor Control Board ("WSLCB") for the production, processing and retailing of
marijuana; and
Whereas, the Attorney General of Washington issued an opinion, AGO 2014 No.
2, concluding that under Washington law there is a strong presumption against finding
that state law preempts local ordinances, and although Initiative 502 established a
licensing and regulatory system for marijuana producers, processors and retailers in
Washington state, it includes no clear indication that it was intended to preempt local
authority to regulate such businesses, and the Attorney General, therefore, concluded
that Initiative 502 left in place the normal powers of local government to regulate within
their jurisdictions; and the Attorney General also concluded that local governments have
broad authority to regulate within their local jurisdictions and nothing in the initiative
limits that authority with respect to licensed marijuana businesses; and
WHEREAS, the United States Congress passed the Comprehensive Drug Abuse
Prevention and Control Act of 1970 [Pub.L. No. 91-513, 84 Stat. 12361, creating a
comprehensive drug enforcement regime called the Controlled Substances Act, codified
as 21 USC § 801-971; and
WHEREAS, under the Controlled Substances Act, Congress established five
"schedules" of controlled substances whereby controlled substances are placed in
specific schedules based upon their potential for abuse, their accepted medical use in
treatment, and the physical and psychological consequences of abuse of the substance
[See 21 USC § 812(b)]; and
WHEREAS, marijuana is currently listed as a "Schedule I" controlled substance
in 21 USC § 812(c), Schedule I(c)(10); and
WHEREAS, for a substance to be designated a Schedule I controlled substance
under the Controlled Substances Act, it must be found that the substance: (1) has a
high potential for abuse, (2) has no currently accepted medical use in treatment in the
United States; and (3) that there is a lack of accepted safety for use of the substance
under medical supervision [See 21 USC § 812(b)(1)]; and
----------------------------
Ordinance No. 6525
September 2, 2014
Page 2 of 11
WHEREAS, the Controlled Substances Act sets forth procedures by which the
schedules may be modified [See 21 USC § 811(a)]; and
WHEREAS, under the Controlled Substances Act, it is unlawful to knowingly or
intentionally "manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance," except as otherwise
provided in the statute [21 U.S.C.§ 841(a)(1)]; and
WHEREAS, possession of a controlled substance, except as authorized under
the Controlled Substances Act, is also unlawful; and
WHEREAS, the United States Supreme Court held in Gonzales v. Raich, 545
U.S. 1, 125 S.Ct. 2195, 162 L.Ed. 2d 1 (2005), that Congress was within its rights and
powers under the Commerce Clause to regulate marijuana as a Schedule I controlled
substance pursuant to the Controlled Substances Act, and that, under the Supremacy
Clause of the U.S. Constitution, the federal Controlled Substances Act will prevail over
any conflicting state law; and
WHEREAS, Paragraph 11 of Section 314-55-020 of the Washington
Administrative Code (WAC), promulgated by the WSCLB under the authority of
Initiative 502, describes the license permit process and includes the following limitation:
(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;
and
WHEREAS, pursuant to Article 11, § 11 of the Constitution of the State of
Washington, the general police powers granted to cities empower and authorize the City
of Auburn to adopt land use controls to provide for the regulation of land uses within the
city and to provide that such uses shall be consistent with applicable law; and
WHEREAS, the City Council finds and determines that documented secondary
effects associated with analogous medical marijuana dispensaries in other cities and
counties include murders, robberies, burglaries, drug dealing, sales to minors, loitering,
----------------------------
Ordinance No 6525
September 2, 2014
Page 3 of 11
heavy foot and vehicle traffic, increased noise, odors, health hazards such as
proliferation of molds [See, "White Paper on Marijuana Dispensaries," issued by the
California Police Chiefs Association's Task Force on Marijuana Dispensaries on April
22, 2009, ("CAPCA White Paper"); City of Riverside v. Inland Empire Patients Health
and Welfare Center, 56 CalAth 729, 756, 300 P.3d 494 (2013)], however, the City
Council finds that the State licensing and regulatory scheme, if enforced by the City and
the State, may adequately mitigate these secondary effects; and
WHEREAS, the Planning Commission of the City of Auburn has held and
conducted various public meetings and authorized a public workshop to address
marijuana production, processing and retailing, as defined in Initiative 502 and its
implementing regulations, and has held an open public hearing on the 6th day of August
2014, all pursuant to required notice and applicable procedures of the City of Auburn,
and has adopted findings of fact and conclusions of law in support of its
recommendation for adoption of the above-described amendments, which Findings of
Fact and Conclusions of Law are of record and incorporated herein by this reference;
and
WHEREAS, illustrative of an area of concern is the fact that in relationship to the
Washington state legislatures passage of Engrossed Second Substitute Senate Bill
5073, then Governor Christine Gregoire vetoed portions of the bill that would have
legalized use of marijuana for medical purposes out of concern that the vetoed portions
of the bill would authorize state employees to issue licenses for marijuana related
activities and would thus open public employees to federal prosecution as the United
States attorneys have made it clear that state law would not provide an automatic safe
harbor from federal prosecution, and because of her concern that no state employee
should be required to violate federal criminal law in order to fulfill the duties under state
law [See Governor Gregoire's letter of April 29, 2011 to the Washington state
legislature/Senate]; and
WHEREAS, because a majority of the voters of the City of Auburn voted in
support of Initiative 502, expressing support for legalization/decriminalization of
----------------------------
Ordinance No. 6525
September 2, 2014
Page 4 of 11
marijuana activities, the City Council of the City of Auburn faces a dilemma of potentially
having to choose between supporting a citizen-approved state law that
legalize/decriminalize marijuana related activities or supporting the federal law under
which marijuana is illegal; and
WHEREAS, the dilemma would be exacerbated if the City of Auburn were to be
the governmental entity responsible for the licensing and permitting of those marijuana
related activities that are illegal under federal law; and
WHEREAS, the City Council finds that the state law and the accompanying
regulations promulgated by the WSLCB essentially, adequately address the issues and
impacts that would be involved by licensing and permitting activities if handled by the
City, so that the City of Auburn could restrict its activity in connection with such
businesses to enforcing and ensuring compliance with state law without the City having
to be the licensing and permitting agency; and
WHEREAS, the City Council has considered the recommendation of the
Planning Commission, the record herein, and all evidence and testimony presented;
and
WHEREAS, the City Council finds and determines that approval of such
amendments is in the best interests of the City of Auburn.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as follows
Section 1. Recitals Adopted. The City Council hereby adopts the recital
clauses contained in this Ordinance as Findings of Fact or Conclusions, as may be
appropriate given the context of each recital.
Section 2. Amendment To City Code. That Section 1.04.060 of the Auburn
City Code be, and the same hereby is, amended to read as follows:
----------------------------
Ordinance No. 6525
September 2, 2014
Page 5 of 11
1.04.060 Conflict of ordinances with state or federal law.
A. All ordinances and city code provisions, and regulations therein,
shall not be in conflict with all other regulations and/or requirements of state and
federal law, insofar as not permitting or allowing any action, use or conduct which
is in violation of or prohibited by any state or federal laws, regulations or codes.
Any such provisions that cannot be implemented or enforced because of
provisions of state or federal law, or that cannot be reconciled with any state or
federal law, shall be deemed to be in conflict therewith. Any provisions of city
ordinances or of the city code deemed by the city council to be in conflict with
state or federal law shall be null and void. This The provisions of this Section
does do not allow any action, use or conduct which is in violation of any local,
state or federal laws, regulations, codes and/or ordinances and the city is not
authorized to permit or license such action, use or conduct.
B. Any action, use or conduct which is not permitted or allowed is
prohibited. It is provided however, that the provisions of this Subsection B do not
apply to any person or persons who has/have a valid lawful license issued by
the State of Washington to produce process or sell marijuana, marijuana
concentrates usable marijuana and/or marijuana-infused products and is acting
in full conformity with the requirements of the state of Washington related to such
license pursuant to Sections 69.50.301 — 369 RCW and Sections 314-55-005 —
540 WAC In such instances the State of Washington not the city, is the
permitting and licensing entity It is provided however, that this provision does
not preclude the city from taking enforcement action in instances where conduct
or activity that is licensed or permitted under Sections 69.50.301 — 369 RCW,
and Sections 314-55-005 — 540 WAC occurs within the City of Auburn but is not
in compliance with or violates the requirements of such state licensing or
permitting For the purposes of this Section only, the provisions of Sections
69 50 325 — 369 RCW and Sections 314-55-515 — 535 WAC are hereby adopted
by reference and Incorporated herein. (Ord. 6416 § 3, 2012.)
Section 3. Amendment To City Code. That Section 5.10.040 of the Auburn
City Code be, and the same hereby is, amended to read as follows:
5.10.040 General business license required - Exception.
A. Any person desiring to establish or conduct any business enterprise or
undertaking as defined in ACC 5.10.020 within the corporate limits of the city,
shall first apply to the business license clerk, as designated by the mayor, for a
license to conduct such business and obtain such license as approved by the
city. The application shall be upon a form furnished by the business license clerk
on which the applicant shall state the business name, address, and telephone
number; the nature of the business activity or activities in which the applicant
desires to engage; the place where the business will be conducted; the number
of employees, and the name of the contact person along with an address and
telephone number, and the business identification number issued by the state of
----------------------------
Ordinance No. 6525
September 2, 2014
Page 6 of 11
Washington; and the IRS letter testifying to nonprofit status or the copy of the
application to the IRS.
B. It is unlawful for any person to operate or physically conduct any
business within the city without having first obtained a general business license
for the current business year or portion thereof. The applicant for a business
license required under this title shall be over the age of 18 years. If any person
required to pay a license fee, by the terms and provisions of this chapter, for any
period fails or refuses to do so, they shall not be granted a license for the current
period until such delinquent license fee, together with penalties, has been paid in
full.
C. Specific businesses identified in Chapters 3.80, 3.84, 3.88, 5.20, 5.30,
5.84 ACC or elsewhere in this title or other titles of the Auburn City Code will be
required to obtain an individual business license as otherwise indicated.
D. Any business within the city jurisdiction on any project requiring a
permit must have a business license.
E. Exception to city business licensing requirement. A business license is
not required by the city of any person or persons who has/have a valid lawful
license issued by the state of Washington to produce process or sell marijuana,
marijuana concentrates usable marijuana and/or marijuana-infused products in
conformity with the requirements of the state of Washington related to such
license pursuant to Sections 69.50.301 - 369 RCW and Sections 314-55-005 -
540 WAC. (Ord. 5897 § 3, 2005; Ord. 5814 § 2, 2004, Ord. 5754 § 1, 2003; Ord.
4012 § 2, 1984.)
Section 4. Amendment To City Code. That Section 9.22.010 of the Auburn
City Code be, and the same hereby is, amended to read as follows:
9.22.010 Marijuana prohibited.
A. Except as authorized under United States Code (USC) Title 21: the
Controlled Substances Act and except as authorized by the Revised Code of
Washington under Sections 69.50.301 - 369 RCW, it is unlawful for any person
or persons to grow, manufacture, process, deliver, grow, or peso-sell
marijuana.
B Except as authorized by the Revised Code of Washington under
Sections 69 50 301 - 369 RCW it is unlawful for any person to possess
mariivana.
C. "Marijuana," also known as "marihuana" means all parts of the plant
of the genus cannabis, whether growing or not; the seeds thereof; the resins
extracted from any part of the plant; and every compound, manufacture, salt,
derivative, mixture, or preparation of the-such plant, its seeds or resin, and
includes all marijuana concentrates useable marijuana, and marijuana-infused
products. Such term does not include the mature stalks of the-such plant, fiber
produced from the-such stalks, oil or cake made from the seeds of the-such
plant, any other compound, manufacture, salt, derivative, mixture, or preparation
----------------------------
Ordinance No. 6525
September 2, 2014
Page 7 of 11
of tie-such mature stalks (except the resins extracted therefrom), fiber, oil, or
cake, or the sterilized seed of the-such plant which is incapable of germination.
D It is unlawful for any person or persons who has/have a license
issued by the state of Washington to produce process or sell marijuana,
marijuana concentrates usable marijuana and/or marijuana-infused products to
fail to comply with or violate any of the requirements of the state of Washington
related to such license issued by the state of Washington, including, but not
limited to the requirements of Sections 69.50.325 - 369 RCW, and Sections 314-
55-515 - 535 WAC For the purposes of this Section only, the provisions of
Sections 69.50.325 - 369 RCW and Sections 314-55-515 - 535 WAC are
hereby adopted by reference and Incorporated herein.
E Violation of the provisions of this Section shall constitute a
misdemeanor, punishable by imprisonment in jail for a maximum term fixed by
the court of not more than ninety days or by a fine in an amount fixed by the
court of not more than one thousand dollars or by both such imprisonment and
fine. (Ord. 6300 § 1, 2010; Ord. 5682 § 1, 2002.)
Section 5. Amendment To City Code. That Section 18.02.020 of the Auburn
City Code be, and the same hereby is, amended to read as follows:
18.02.020 Authority to adopt code.
A. 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, the State Growth Management Act, RCW Title 35A, Optional
Municipal Code, and Chapter 36.7013 RCW. In accordance with ACC 1.04.060_;
and
B. Notwithstanding any provisions otherwise, this title
does not permit or allow any action, use or conduct which is in violation of or
prohibited by any state or federal laws, regulations or codes. Any action, use or
conduct which is prohibited by state or federal law is prohibited hereby. It is
provided however, that the provisions of this Subsection B do not apply to any
person or persons who has/have a valid lawful license issued by the State of
Washington to produce process or sell marijuana marijuana concentrates,
usable marijuana and/or mariivana-infused products and is acting in full
conformity with the requirements of the state of Washington related to such
license pursuant to Sections 69.50.301 - 369 RCW and Sections 314-55-005 -
540 WAC In such instances the State of Washington, not the city, is the
permitting and licensing entity. It is provided however, that this provision does
not preclude the city from taking enforcement action in instances where conduct
or activity that is licensed or permitted under Sections 69.50.301 - 369 RCW,
and Sections 314-55-005 - 540 WAC occurs within the City of Auburn but is not
in compliance with or violates the requirements of such state licensing or
permitting. For the purposes of this Section only, the provisions of Sections
69 50 325 - 369 RCW and Sections 314-55-515 - 535 WAC are hereby adopted
----------------------------
Ordinance No. 6525
September 2, 2014
Page 8 of 11
by reference and Incorporated herein. (Ord. 6416 § 4, 2012; Ord. 6245 § 2,
2009.)
Section 6. Amendment To City Code. That Section 18.07.010 of the Auburn
City Code be, and the same hereby is, amended to read as follows:
18.07.010 1 ntent.
A. General. This section describes the intent for each of the city's
residential zones. These intent statements may be used to guide the
interpretation of the regulations associated with each zone.
B. (RC) Residential Conservancy Zone — One Dwelling Unit per Four
Acres. The RC residential conservancy zone is intended primarily to provide for
low-intensity single-family residential uses with characteristics of an agricultural
environment; provided, that the agricultural uses are secondary to the single-
family uses. These areas allow for a lifestyle similar to that of rural areas that
includes allowance of farm animals and streets without sidewalks. This zone is
intended to protect areas with significant environmental constraints or values
from impacts typically associated with urban levels of development while allowing
low-intensity development designed to minimize impacts on the natural
environmental features designated for conservation.
Public improvements required within the R-C zone will be less than is
normally required for the higher intensity residential zones within the city.
This zone shall only be applied in areas designated as residential
conservancy on the comprehensive plan. This zone shall allow one dwelling unit
per four acres minimum lot area.
C. R-1 Residential Zone — One Dwelling Unit per Acre. The intent of
the R-1 residential zone is to provide areas for estate-type residential
development on large lots. This zone would normally be located in the areas
particularly suited for such development.
Appropriate development standards required of other urban areas shall be
required to serve this zone.
D. R-5 Residential Zone — Five Dwelling Units per Acre. The R-5
single-family residential zones are intended to create a living environment of
optimum standards for single-family dwellings. It is further intended to achieve
development densities of four to five dwelling units per net acre. This zone will
provide for the development of single-family detached dwellings and for such
accessory uses as are related, incidental and not detrimental to the single-family
residential environment.
E. R-7 Residential Zone — Seven Dwelling Units per Acre.
The R-7 single-family residential zones are intended to create a living
environment of optimum standards for single-family dwellings. It is further
intended to achieve development densities of five to seven dwelling units per net
acre. This zone will provide for the development of single-family detached
----------------------------
Ordinance No. 6525
September 2, 2014
Page 9 of 11
dwellings and for such accessory uses as are related, incidental and not
detrimental to the residential environment.
F. R-10 Residential Zone — 10 Dwelling Units per Acre. The R-10
residential zones are intended to permit some increase in population density in
those areas to which this classification applies by permitting single-family
dwellings and duplexes on a minimum size lot while at the same time, by means
of the standards and requirements set forth in this chapter, maintaining a
desirable family living environment by establishing minimum lot areas, yards and
open spaces. A related consideration is to provide a transition between single-
family areas and other intensive designations or activities which reduce the
suitability for single-family uses.
G. R-16 Residential Zone — 16 Dwelling Units per Acre. The R-16
zone is intended to provide for medium density multiple-family residential
development as designated in the comprehensive plan, and is further intended
as a residential zone of single, duplex and multiple-family residences, except as
specifically provided elsewhere in this chapter.
H. R-20 Residential Zone — 20 Dwelling Units per Acre. The R-20
zone is intended to provide for multiple-family residential development and is
further intended as a residential zone primarily of multiple-family residences,
except as specifically provided elsewhere in this chapter. A related consideration
is to make it possible to more efficiently and economically design and install all
physical public service facilities in terms of size and capacity to adequately and
permanently meet needs resulting from a defined intensity of land use.
I Except as specifically provided in the city code no business or
commercial use shall be allowed in a residential district of the city that does not
have a city of Auburn business license. (Ord. 6245 § 5, 2009.)
Section 7. Termination of Moratorium. The Moratorium implemented
pursuant to City of Auburn Resolution No. 4992, passed on September 16, 2013, shall
terminate upon the date this Ordinance becomes effective in accordance with the
provisions of Section 10, below.
Section 8. Implementation. The Mayor is hereby authorized to implement
such administrative procedures as may be necessary to carry out the directions of this
legislation.
Section 9. Severability. The provisions of this ordinance are declared to be
separate and severable. The invalidity of any clause, sentence, paragraph, subdivision,
----------------------------
Ordinance No 6525
September 2, 2014
Page 10 of 11
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.
Section 10. Effective Date. This Ordinance shall take effect and be in force
five days from and after its passage, approval and publication as provided by law.
INTRODUCED: NOZ 9 AS
PASSED: SEP $ 2014
APPROVED: SEP 2 201
wcinr j) )�D-d I I �'
NANC ACKUS, MAYOR
ATTEST:
,,Danielle E. Daskam, City Clerk
APPROVED TO FORM:
iel B. H ' ity Attorney
PUBLISHED:
----------------------------
Ordinance No. 6525
September 2, 2014
Page 11 of 11