HomeMy WebLinkAbout01-22-2014 1-22-2014 PLANNING COMMISSION PACKET
The City of Auburn Planning Commission is an eight member advisory body that provides recommendations to the
Auburn City Council on the preparation of and amendments to land use plans and related codes such as zoning.
Planning Commissioners are appointed by the Mayor and confirmed by the City Council.
Actions taken by the Planning Commission are not final decisions; they are in the form of recommendations to the
City Council who must ultimately make the final decision.
PLANNING COMMISSION MEETING
January 22, 2014
AGENDA
I. CALL TO ORDER – 7:00 p.m., Council Chambers
II. ROLL CALL/ESTABLISHMENT OF QUORUM
III. APPROVAL OF MINUTES
A. December 3, 2013
IV. PUBLIC COMMENT
Comment from the audience on any item not listed on the agenda for discussion or public
hearing.
V. PLANNING DEPARTMENT REPORT
Update on Planning and Development Department activities.
VI. ACTION
A. Election of Planning Commission Chair and Vice Chair* (Chamberlain)
Summary: Annual election of the Chairperson and Vice-Chairperson of the Auburn
Planning Commission for 2014.
VII. OTHER BUSINESS
A. Planning Commission’s Rules of Procedure* (Chair Roland)
Summary: Annual overview of the Planning Commission’s Rules of Procedures.
B. Recreational Marijuana* (Jones)
Summary: Review and discuss proposed options for regulating State licensed
marijuana uses in the City.
VIII. ADJOURNMENT
DRAFT
PLANNING COMMISSION
December 3, 2013
MINUTES
I. CALL TO ORDER
Chair Judi Roland called the meeting to order at 7:00 p.m. in the Council Chambers
located on the first floor of Auburn City Hall, 25 West Main Street, Auburn, WA.
II. ROLL CALL/ESTABLISHMENT OF QUORUM
Planning Commission Members present were: Chair Judi Roland, Vice-Chair Copple,
Commissioner Couture, Commissioner Mason, Commissioner Pondelick, and
Commissioner Trout. Commissioner Baggett is excused, Commissioner Smith is
absent.
Staff present included: Planning Manager Elizabeth Chamberlain, City Attorney Dan
Heid, Planner David Jones and Planning Secretary Tina Kriss.
III. APPROVAL OF MINUTES
A. October 22, 2013
Commissioner Copple moved and Commissioner Trout seconded to approve the
minutes from the October 22, 2013 meeting as written.
MOTION CARRIED UNANIMOUSLY 6-0
IV. PUBLIC COMMENT
There were no public comments on any item not listed on the agenda for discussion or
public hear.
V. PLANNING DEPARTMENT REPORT
Planning Services Manager Elizabeth Chamberlain reported that the Trek Apartment
mixed-use development project is starting construction Monday, December 9, 2013.
Pursuant to the Purchase and Sales Agreement, the sale of the two downtown southern
blocks will be closing at the end of 2013. Ms. Chamberlain also explained the changes
that will take place with the downtown permit parking and parking changes.
The City of Auburn Planning and Development Department will be combining with the
Public Works Department and be called the Community Development and Public Works
Department. Former Planning and Development Director Kevin Snyder will be returning
to take the position of Director of Community Development and Public Works.
PLANNING COMMISSION MEETING MINUTES December 3, 2013
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VI. OTHER BUSINESS
A. Recreational Marijuana Overview, Work to Date and Next Steps (Jones)
Senior Planner David Jones provided background information on recreational
marijuana, the City’s work to date, and the next steps or options staff has brought
forward for discussion.
On November 6, 2012, the people of the State of Washington voted to pass State
Initiative 502 (I-502) allowing the State to license and regulate marijuana production,
distribution, and possession for persons over 21; as well as remove the state law
criminal and civil penalties for activities it authorizes. The initiative allowed the
Washington State Liquor Control Board (WSLCB) to write the rules, or
implementation details, of the new “seed to sale” system.
The Commission and staff reviewed I-502 and the types of licenses and number of
licenses allowed under the State of Washington. There is no set limit for the number
of licenses for producers or processors; however, there is a capped limit on the
number of retail licenses that are allowed per jurisdiction. The City of Auburn is
allowed 2 licenses.
As of November 18, 2013, the WSLCB began accepting license applications and
began processing those applications on November 20, 2013. In an effort to minimize
the impacts to the City, further regulation of these uses are recommended beyond
the State requirements. These uses should be limited where such a use would be
compatible with the scope of existing uses and have minimal impacts to the overall
quality of the City.
On September 16, 2013, the City of Auburn passed a moratorium (Resolution No.
4992) on the acceptance or processing of application for business licenses and other
licenses, permits, and approvals for marijuana/cannabis related business or uses.
As part of the Work Plan as established in Section 5B of the moratorium, the City’s
Planning and Legal departments have engaged in a collaborative research and
analysis effort of applicable materials that relate to the passage of I-502. Information
was provided regarding the regulations by the State.
As part of the work plan, Senior Planner Jones reviewed the three (3) options
provided by staff for discussion on concepts that accomplish the goal of regulating
State licensed marijuana uses within the City of Auburn corporate boundary. The
concept is to create a set of regulations and criteria that properly addresses the
concerns of the City of Auburn, and its Citizens while maintaining compliance with
the State law.
The Commission and staff reviewed the options and discussed using portions of
options 1-3 in a combined option to create new regulations and criteria to properly
address the concerns of the City of Auburn. In answer to the question from the
Planning Commission, if the City restricts licensing marijuana uses in the City of
Auburn, City Attorney Heid explained the City of Kent currently has a case pending
before the State Supreme Court regarding an outright ban. Staff will provide the
PLANNING COMMISSION MEETING MINUTES December 3, 2013
Page 3
Commission with the outcome of this case after it has gone before the Supreme
Court.
Staff reviewed a draft map showing restricted areas of marijuana activity and the
areas of the City where State licensed marijuana activities could potentially locate
based on the State’s location criteria.
City Attorney Heid and the Planning Commission members discussed potential fees
that could be added for licensing and the differences with State law between medical
marijuana and the recreational use. The Commission asked staff if they could
provide information on the State laws on the use of medical marijuana.
A review of the current moratorium on the acceptance of processing of application for
business licenses and other licenses, permits and approvals for marijuana/cannabis
related business or uses (Resolution No. 4992) was discussed.
The Commission discussed using a draft hybrid version of option Nos. 2 and 3 (with
additional elements) and also the consideration of using option 1, Amending Auburn
City Code to prohibit the production, processing and retailing of recreational
marijuana in the City. Staff will work on option scenarios and bring back for further
discussion with the Planning Commission.
After discussing the options available to the City, the Commission determined they
would review this item at future meetings. Staff will provide additional information
comparing the medical marijuana legislation with the rules related to I-502,
recreational marijuana at the next meeting along with updates to the map.
The next meeting will be held January 7, 2014.
VII. ADJOURNMENT
There being no further business to come before the Planning Commission, Chair Roland
adjourned the meeting at 8:29 p.m.
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Memorandum
To: City of Auburn Planning Commission
From: Elizabeth Chamberlain, AICP, Planning Services Manager
Date: January 14, 2014
Re: Election of Planning Commission Chair and Vice Chair
The annual election of the Chairperson and Vice-Chairperson of the Auburn Planning
Commission is scheduled to occur at the January 22, 2014 Planning Commission meeting.
Section 3 of the City of Auburn Planning Commission Rules of Procedure (adopted November
1983, revised November 1988, updated April 2000, revised February 2007, and revised April
2013) specify the procedures for the annual election of officers. The following are those
procedures as well as the duties of the Chair and the Vice Chair as specified in Section 4:
III. ELECTION OF OFFICERS:
1. The officers of the Commission shall consist of a Chair and Vice Chair elected
from the appointed members of the Commission and such other officers as the
Commission may, by the majority vote, approve and appoint.
2. The election of officers shall take place once each year at the Commission’s first
regular meeting of each calendar year. The term of office of each officer shall
run until the subsequent election.
3. The vacancy of the Chair or Vice-Chair during his or her term of office shall be
filled for the remaining term of office by the Mayor and confirmed by the City
Council. The Chair would be replaced by the Vice-Chair or the Vice-Chair would
be elected by the vote of the Planning Commission.
IV. CHAIR:
1. The Chair shall preside over the meetings of the Commission and may exercise
all the powers usually incident of the office. The Chair shall be considered as a
member of the Commission and have the full right to have his/her own vote
recorded in all deliberations of the Commission. Unless stated otherwise, the
Chair's vote shall be considered to be affirmative for the motion.
2. The Chair shall have power to create temporary committees of one or more
members. Standing committees of the Commission shall be created at the
direction of the Commission and appointed by the Chair. Standing or temporary
committees may be charged with such duties, examinations, investigations and
inquiries relative to one or more subjects of interest to the Commission. No
standing or temporary committee shall have the power to commit the
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Commission to the endorsement of any plan or program without the approval at
the regular or special meeting of the Commission.
3. The Vice Chair shall in the absence of the Chair, perform all the duties incumbent
upon the Chair.
4. In the event of the absence of the Chair and Vice Chair, the senior member of
the Commission present shall act as Chair for that meeting or may delegate the
responsibility to another member.
Election of Chairperson
The current Chairperson should call for nominations of Chairperson for the 2014 calendar year
from the current membership of the Commission. Following receipt of all nominations, the
current Chairperson shall name all nominations received. Following the naming of all nominees,
the current Chairperson shall ask for a roll call vote by the Commission on each of the nominees
individually. The Secretary shall call the name of each Commission member and ask for his/her
vote for each nominee. For each nominee when asked, the Commission members present shall
signify their vote by a Yes or No. The Commission member receiving the highest number of
votes shall be the Chairperson for the 2014 calendar year.
Election of Vice-Chairperson
The newly elected Chairperson should call for nominations of Vice-Chairperson for the 2014
calendar year from the current membership of the Commission. Following receipt of all
nominations, the newly elected Chairperson shall name all nominations received. Following the
naming of all nominees, the newly elected Chairperson shall ask for a roll call vote by the
Commission on each of the nominees individually. The Secretary shall call the name of each
Commission member and ask for his/her vote for each nominee. For each nominee when
asked, the Commission members present shall signify their vote by a Yes or No. The
Commission member receiving the highest number of votes shall be the Vice- Chairperson for
the 2014 calendar year.
Please contact staff in advance of the January 22, 2014 scheduled meeting if you have any
questions concerning the election of the Chairperson and Vice-Chairperson.
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Memorandum
To: City of Auburn Planning Commission
From: Chair Roland
Elizabeth Chamberlain, AICP, Planning Services Manager
Date: January 14, 2014
Re: Annual Overview of the Planning Commission Rules of Procedures
During the 1st quarter of 2013, the Planning Commission spent considerable time updating their
Rules of Procedures. To keep the Rules of Procedures fresh in the Commissioner’s minds, staff
along with Chair Roland will review some key points in the Rules of Procedures, such as
attendance and the role of a Planning Commissioner, at the first Planning Commission meeting
of each year. The overview is not meant to be a review and edit of the Rules of Procedures, but
if there is an item needing revision, staff will document for a future update. Enclosed for your
reference is a copy of the April 2013 revised Rules of Procedures.
Planning Commission – Rules of Procedure
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CITY OF AUBURN
PLANNING COMMISSION
RULES OF PROCEDURE
ADOPTED NOVEMBER, 1983
REVISED NOVEMBER, 1988
UPDATED APRIL, 2000
REVISED FEBRUARY, 2007
REVISED APRIL 2, 2013
Planning Commission – Rules of Procedure
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PLANNING COMMISSION - RULES OF PROCEDURE
TABLE OF CONTENTS
SECTION SUBJECT PAGE
I. NAME..........................................................1
II. MEETINGS.................................................1
III. ELECTION OF OFFICERS.........................2
IV. CHAIR.........................................................2
V. SECRETARY..............................................3
VI. QUORUM....................................................3
VII. ABSENCE OF MEMBERS..........................3
VIII. ACTIONS DEFINED...................................3
IX. AGENDA.....................................................4
X. PUBLIC HEARING.....................................4-6
XI. CONFLICT OF INTEREST.........................6-7
XII. AMENDMENT............................................7
Planning Commission – Rules of Procedure
1
CITY OF AUBURN PLANNING COMMISSION
RULES OF PROCEDURE
We, the members of the Planning Commission of the City of Auburn, do
hereby adopt, publish, and declare the following Rules of Procedure:
I. NAME:
The official name of the City of Auburn advisory planning agency shall be "The
City of Auburn Planning Commission." The membership and terms of office of the
members of the Planning Commission shall be as provided in Chapter 2.45 of the
Auburn City Code (ACC).
II. MEETINGS:
1. All meetings will be held at the Auburn City Hall, Auburn, Washington,
unless otherwise directed by the Secretary or Chair of the Planning
Commission.
2. Regular meetings shall be held on the Tuesday following the first
Monday of each month, and shall be open to the public. The meeting
shall convene at 7:00 P.M. unless otherwise directed by the Secretary
or the Chair.
3. If the first Monday of the month is a legal holiday, the regular meeting
shall be held on the following Wednesday. If a regular meeting day
(Tuesday) falls on a legal holiday or on the November General Election,
the Commission will convene on the following Wednesday.
4. Special meetings of the Planning Commission shall be at the call of the
Chair. Special meetings of the Planning Commission may also be
called by any three members of the Council a minimum notice of 24
hours shall be provided for special meetings in accordance with State
law.
5. If no matters over which the Planning Commission has jurisdiction are
pending upon its calendar, a meeting may be canceled at the notice of
the Secretary or Chair provided at least 24 hours in advance.
6. Except as modified by these rules of procedure, Robert's Rules of
Order, Newly Revised, most current version, shall govern the conduct
of the meetings.
Planning Commission – Rules of Procedure
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7. Meetings of the Planning Commission shall be conducted in conformity
with the requirements of the Washington State Open Public Meetings
Act, Chapter 42.30 of the Revised Code of Washington (RCW).
Executive sessions can only be held in accordance with the provisions
of Section 42.30.110 RCW.
8. The Planning Commission may conduct business in closed session as
allowed in conformity with Section 42.30.140 RCW.
9. An agenda shall be prepared in advance of every regular and special
meeting of the Planning Commission. Meeting agendas and materials
on items on an agenda for a regular meeting shall be provided to
members of the Planning Commission not less than five (5) days in
advance of the regular meeting. Meeting agendas and materials on
items on an agenda for a special meeting shall be provided to members
of the Planning Commission as promptly in advance of the meeting as
can reasonably be accomplished.
III. ELECTION OF OFFICERS:
1. The officers of the Commission shall consist of a Chair and Vice Chair
elected from the appointed members of the Commission and such other
officers as the Commission may, by the majority vote, approve and
appoint.
2. The election of officers shall take place once each year at the
Commission’s first regular meeting of each calendar year. The term of
office of each officer shall run until the subsequent election.
3. The vacancy of the Chair or Vice-Chair during his or her term of office
shall be filled for the remaining term of office by the Mayor and
confirmed by the City Council. The Chair would be replaced by the
Vice-Chair or the Vice-Chair would be elected by the vote of the
Planning Commission.
IV. CHAIR:
1. The Chair shall preside over the meetings of the Commission and may
exercise all the powers usually incident of the office. The Chair shall be
considered as a member of the Commission and have the full right to
have his/her own vote recorded in all deliberations of the Commission.
Unless stated otherwise, the Chair's vote shall be considered to be
affirmative for the motion.
2. The Chair shall have power to create temporary committees of one or
more members. Standing committees of the Commission shall be
Planning Commission – Rules of Procedure
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created at the direction of the Commission and appointed by the Chair.
Standing or temporary committees may be charged with such duties,
examinations, investigations and inquiries relative to one or more
subjects of interest to the Commission. No standing or temporary
committee shall have the power to commit the Commission to the
endorsement of any plan or program without the approval at the regular
or special meeting of the Commission.
3. The Vice Chair shall in the absence of the Chair, perform all the duties
incumbent upon the Chair.
4. In the event of the absence of the Chair and Vice Chair, the senior
member of the Commission present shall act as Chair for that meeting
or may delegate the responsibility to another member.
V. SECRETARY:
The Planning and Development Director (“Director”), or his/her appointee,
shall act as the Secretary for the Planning Commission and shall keep a record of all
meetings of the Commission and its committees. These records shall be retained at
the Planning and Development Department.
All public hearings shall be electronically recorded verbatim and may be
transcribed upon request of the Director, City Attorney, the majority of the
Commission, or City Council. Transcriptions may be requested by other parties, in
which case, the costs of transcription shall be borne by the requesting party.
VI. QUORUM:
A simple majority of the appointed members shall constitute a quorum for the
transaction of business. A simple majority vote of the quorum present shall be
sufficient to take action on the matters before the Commission; provided that once a
meeting of the Planning Commission has commenced with a quorum, the meeting
may continue even if the members in attendance fall below that required for a
quorum, and a vote on a majority of those in attendance shall be sufficient to take
action.
VII. ABSENCE OF MEMBERS:
In the event of a member being absent for two (2) consecutive regular
meetings, or being absent from 25% of the regular meetings during any calendar
year, without being excused by the Chair, the Chair may request that the Mayor ask
for his or her resignation. To be excused, members must inform the planning
commission’s secretary in advance if they cannot attend a scheduled meeting.
Planning Commission – Rules of Procedure
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VIII. ACTIONS DEFINED:
The rules of the Commission impose different requirements according to the
type of action before the Commission.
1. Legislative actions are those which affect broad classes of people of the
whole City. These actions include adopting, amending, or revising
comprehensive, community, or neighborhood plans, or other land use
planning documents or the adoption of area wide zoning ordinances or
the adoption of a zoning ordinance amendment that is area wide in
significance.
2. Quasi-judicial actions of the Planning Commission are those actions
which determine the legal rights, duties, or privileges of specific parties
in a hearing or other contested case proceeding. Quasi-judicial actions
include actions that would otherwise be administrative or legislative if
applied more widely or city-wide, rather than affecting one or a small
number of persons or properties. Quasi-judicial actions do not include
the legislative actions adopting, amending, or revising comprehensive,
community, or neighborhood plans or other land use planning
documents or the adoption of area-wide zoning ordinances or the
adoption of a zoning amendment that is of general or area-wide
significance.
3. Organizational actions are those actions related to the organization and
operation of the Commission. Such actions include adoption of rules,
directions to staff, approval of reports, election of officers, etc.
IX. AGENDA:
An agenda shall be prepared for each meeting consisting of the following
order of business:
1. Roll Call/Establishment of Quorum.
2. Approval of Minutes.
3. Public Comment
4. Staff Comments and Reports
5. Public Hearings.
6. Other Business Items as Appropriate.
7. Adjournment.
Additional items may be added to the agenda by the Planning Commission. The
Chair shall have the discretion to amend the order of business.
Planning Commission – Rules of Procedure
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X. PUBLIC HEARINGS:
The procedure for conducting all public hearings will be as follows:
1. Chair opens the public hearing and establishes whether the proponent,
if applicable, is in attendance.
2. Staff Report.
3. Testimony of Proponent, if applicable.
4. Chair calls for other testimony, either for or against. Testimony must be
called for three times. The Chair shall have the discretion to set time
limits on individual public testimony.
5. Questions of staff or persons presenting testimony.
6. Chair closes public hearing.
7. A public hearing may be reopened by motion to accept additional
testimony.
8. Deliberation.
9. Voting:
A. Any member, including the Chair, not voting or not voting in an
audible voice shall be recorded as voting in favor of the motion.
B. The Chair, Secretary, or upon request from a Commission
member, may take a roll call vote.
C. It is the responsibility of each member of the Planning
Commission to vote when requested on a matter before the full
Commission. However, a member may abstain from discussion
and voting on a question because of a stated conflict of interest
or appearance of fairness.
D. If any member of the Planning Commission wishes to abstain,
from a vote on the motion, that member shall so advise the Chair
and, if there is no objection to the abstention, shall remove and
absent himself/herself from the deliberations and considerations
of the motion, and shall have no further participation in the
matter. Such advice shall be given prior to any discussion or
participation on the subject matter or as soon thereafter as the
member perceives a need to abstain, provided that, prior to the
Planning Commission – Rules of Procedure
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time that a member gives advice of an intent to abstain from an
issue, the member shall confer with the City Attorney to
determine if the basis for the member's intended abstention
conforms to the requirements hereof. If the intended abstention
can be anticipated in advance, the conference with the City
Attorney should occur prior to the meeting at which the subject
matter would be coming before the Planning Commission. If that
cannot be done, the member should advise the Chair that he/she
has an "abstention question" that he/she would want to review
with the City Attorney, in which case, a brief recess would be
afforded the member for that purpose before proceeding further.
E. If a tie vote exists, after recording the Chair's vote, the motion
fails.
8. Continuing an Item:
If the Commission wishes to continue a public hearing item, the Chair
should open the public hearing, solicit testimony, and request a motion
from the Commission to continue the public hearing item to a time,
place, and date certain. If any matter is tabled or postponed without
establishing a date, time, and place certain, the matter shall be
scheduled for a hearing pursuant to Auburn City Code (ACC) Section
18.68.040 before the matter may be considered again.
9. Findings of Fact:
The Commission should adopt findings of fact and conclusions for
actions taken involving public hearing items. The findings and
conclusions may be approved by any one of the following methods:
A. The Commission may adopt in whole, in part, or with
amendments, the written findings prepared by staff. Motions to
approve the staff recommendations shall be deemed to
incorporate such findings and conclusions unless otherwise
indicated. Such findings and conclusions do not have to be read
in order to be deemed a part of the record.
B. The motion to take action may adopt oral finding statements
made by Commission members or staff during the hearing or
deliberation.
C. The motion to take an action may direct that additional written
findings and conclusions be developed based on the hearing and
deliberation of the Commission.
Planning Commission – Rules of Procedure
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D. Findings and conclusions may be approved or amended at any
time by the Planning Commission, but all such actions shall be
based on the record of the matter at hand.
10. Order of Hearings:
Normally the order of hearings shall be as published in the agenda.
However, the Chair in order to avoid unnecessary inconvenience to
people wishing to testify, or the late arrival of a proponent, may change
the order as may be necessary to facilitate the meeting. If the
proponent does not appear at the public hearing, the Planning
Commission may continue the public hearing until the next meeting in
order to ensure adequate consideration of the proposal. However, in
such case the Chair shall take whatever testimony that may be given
before accepting a motion to continue pursuant to Section (8).
XI. CONFLICT OF INTEREST:
A. Any member of the Commission who in his or her opinion has an
interest in any matter before the Commission that would tend to
prejudice his or her actions shall publicly indicate, step down and leave
the meeting room until the matter is disposed. A member need only be
excused from legislative or organizational action if the potential conflict
of interest is direct and substantial.
(1) No member of the Planning Commission may use his or her
position to secure special privileges or exemptions for himself,
herself, or others.
(2) No member of the Planning Commission may, directly or
indirectly, give or receive or agree to receive any compensation,
gift, reward, or gratuity from a source except the employing
municipality, for a matter connected with or related to the
officer's services as such an officer unless otherwise provided for
by law.
(3) No member of the Planning Commission may accept
employment or engage in business or professional activity that
the officer might reasonably expect would require or induce him
or her by reason of his or her official position to disclose
confidential information acquired by reason of his or her official
position.
(4) No member of the Planning Commission may disclose
confidential information gained by reason of the officer's position,
Planning Commission – Rules of Procedure
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nor may the officer otherwise use such information for his or her
personal gain or benefit.
(5) No member of the Planning Commission may take any action
that is prohibited by Chapter 42.23 RCW or any other statutes
identifying conflicts of interest.
B. Appearance of Fairness:
Commission members shall strive to follow, in good faith, the
Appearance of Fairness Doctrine as established under Washington
State Law as it applies to quasi-judicial decisions (RCW 42.36) even for
legislative actions before the Commission. The doctrine includes but is
not limited to the following:
1. Members shall avoid communicating in respect to any proposal
with any interested parties, other than staff, outside of public
hearings. Written communication from an interested party to a
member may be permitted provided that such communication is
made part of the record.
2. Members shall avoid drawing conclusions regarding decisions
until after the public hearing is closed.
3. Members shall avoid participating in decisions which affect their
or any family member's property, personal or business interest,
or organization.
4. Members shall avoid participating in decisions in which a
preconceived bias or conclusion has been formed in the mind of
the member prior to the hearing.
5. If any concern relating to Items 1 through 4 should arise, the
affected member shall declare at the start of the public hearing
on the matter, the extent of such concern and whether the
member's decision has been influenced. If the member has
been influenced, or if the extent of the concern is significant, the
member shall be excused by the Chair from the meeting room
and his vote recorded as an abstention.
If, under these rules, a quorum would be excused from the meeting, the
Chair in order to establish a quorum, shall under the rule of necessity,
permit sufficient members (beginning with those who are least affected
by these rules) to participate in the decision.
Planning Commission – Rules of Procedure
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No member may participate in any decision if the member had not
heard the testimony presented at the hearing on the matter. Such
member may, however, listen to the recording of the hearing in order to
satisfy this requirement.
These rules are intended to be consistent with RCW 42.36. In the case
of any conflict, RCW 42.36 or applicable case law shall govern.
XII. AMENDMENT:
The Rules of Procedure may be amended at any regular meeting of the
Commission by a majority vote of the entire membership. The proposed amendment
should be presented in writing at a preceding regular meeting.
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MEMORANDUM
TO: Judi Roland, Chair, Planning Commission
Ron Copple, Vice-Chair, Planning Commission
Planning Commission Members
CC: Mayor Nancy Backus
Dan Heid, City Attorney
Jeff Tate, Interim Planning and Development Director
Elizabeth Chamberlain, AICP, Planning Services Manager
FROM: David L. Jones, AICP, Senior Planner
DATE: January 22, 2014
RE: RECREATIONAL MARIJUANA (CANNABIS), continued discussion
Overview
On December 3, 2013, City Planning and Legal staff presented their work to date and proposed
regulation options in response to the passage of State Initiative 502 (I-502) which allows the
State to license and regulate cannabis production, processing, distribution, and possession for
persons over 21.
The following items were identified by the Commission as needing additional analysis:
1. Disposal of waste
2. Tax revenue distribution
3. Difference in statutes for recreational and medical cannabis
4. Pro and Con analysis of regulating options presented
5. Review need for building size requirements for cannabis uses
6. Revise map showing areas of the City where licensed cannabis uses can locate based
on the 1,000-foot buffer requirement per WAC 314-55-050(10)
Disposal
The disposal of solid and liquid cannabis waste is covered in WAC Section 314-55-097. This
section details the requirements that all 3 license types must follow regarding the disposal of
cannabis waste.
The following is an overview of the requirements of this section:
All solid and liquid waste must be stored, managed and transported in compliance with state
and local laws and regulations.
Waste can either be designated as dangerous waste per the states dangerous waste
regulation (WAC Chapter 173-303), or not dangerous waste. The waste generator must
properly evaluate waste to determine if it designates as dangerous. If the waste is
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designated as dangerous, the generator must treat, store, or dispose of the waste in
accordance with WAC 173-303.
Solid waste that is designated as not dangerous can be disposed of in the following methods:
1. Compostable method – grind unusable cannabis plant waste and mix with other ground
materials such a food waste, yard waste, vegetable based grease or oils, or other LCB
approved waste. Resulting mixture must be comprised of at least 50% non-cannabis
waste material. Mixture intended to be used as compost stock or other organic waste
methods.
2. Non-compostable method - grind unusable cannabis plant waste and mix with other
ground materials such a paper, cardboard, plastic, soil, or other LCB approved waste.
Resulting mixture must be comprised of at least 50% non-cannabis waste material.
Mixture intended to be delivered to a permitted solid waste facility for final disposition.
Wastewater that is designated as not dangerous shall be disposed of in accordance with state
and local laws and regulations. New businesses in the City are evaluated by City staff for their
potential impact on the overall wastewater system, and conditions, if necessary will be placed
on the business.
Tax Revenues
Please refer to the enclosed interoffice memorandum provided by Dan Heid, City Attorney,
regarding findings on cannabis tax revenue distribution.
Statute Comparison
Please refer to the enclosed Medical and Recreational Cannabis Comparison Table for a side-
by-side review.
Pro Con Analysis
Option 1: Complete Prohibition of all Recreational Cannabis Uses
PRO
City has no liability regarding the Federal Controlled Substances Act.
Requires minimal changes to the current City Code.
Maintains “status quo”.
CON
Possible increase in illegal activity in the City.
Additional strain on enforcement and police services.
Potential litigation between conflict with the State permitting licenses and the City not;
further direction pending the City of Kent State Supreme Court case.
Option 2: Establish Licensing Exceptions to all Recreational Cannabis Uses
PRO
City has no liability regarding the Federal Controlled Substances Act.
Requires minimal changes to the current City Code.
Ensures compliance with State statutes.
CON
Cannabis related uses can locate in zones considered “most appropriate” based on the
use.
Page | 3
Additional strain on enforcement and police services.
City has no authority to regulate intensity or location of cannabis related uses.
Option 3: Establish Zoning Regulations for Recreational Cannabis Uses
PRO
Provides the City with more authority regarding intensity and location of cannabis uses
Ensures compliance with State statutes.
Allows for additional regulation of cannabis uses (i.e. noxious odors, additional buffer
criteria, etc.).
Majority of liability regarding the Federal Controlled Substances Act stays with the State.
CON
Requires significant changes to the current City Code.
City takes on minor liability regarding the Federal Controlled Substances Act.
Additional strain on code enforcement and police services.
Business Square Foot Limitations
There are currently no square footage limitations for the use classifications the State licensed
cannabis uses would fall under in the current City Code. After discussions with both the Auburn
Police Department, and the Code Enforcement department, establishing limitations on building
square footage would not reduce the impacts to either entity.
State Licensed Cannabis Use Location Map
Planning Staff and the City’s GIS department have created a map showing where State licensed
cannabis uses could be located in the City based on the 1,000 foot criteria as established in I-
502. Cannabis uses cannot locate within 1,000 feet of any elementary/secondary school,
playground, recreation center or facility, child care center, public park, public transit center,
library, or a game arcade not restricted to proprietors 21 years or age or older.
Based on this analysis, State licensed cannabis uses could locate in the following zones:
C-1, Light Commercial
C-2, Central Business
C-3, Heavy Commercial
CN, Neighborhood Shopping
M-1, Light Industrial
M-2, Heavy Industry
UNC, Unclassified Use
The uses were classified based on current uses that are identified in the current Auburn City
code.
Cannabis retailers would be classified as “Community Retail Establishments”, or “Groceries,
Specialty Food Stores”. Community Retail Establishments are a permitted use in all but the CN
zone, where it would require an Administrative Use Permit. Groceries, Specialty Food Stores
area permitted use in all but the M-2 zone, where it is prohibited.
Both cannabis producers and processors would be classified as “Manufacturing, Assembling,
and Packaging”; and could be further classified depending on the level of intensity. Light
intensity Manufacturing, Assembling and Packaging is permitted in the C-3, M-1, and M-2
Page | 4
zones; medium intensity is permitted in the M-1 and M-2 zones, and requires an Administrative
Use Permit in the C-3 zone; heavy intensity is permitted by an Administrative Use Permit in the
M-2 zone only.
Staff has outlined the following questions for the Planning Commission to discuss and provide
feedback to staff:
1. Based on the information provided, does the Commission wish to change its previous
directives for moving forward with regulatory options?
2. Are there any additional items the Commission wishes Staff to consider as the process
moves forward?
Attachments:
Attachment A – Memo from Planning Commission meeting held on December 3, 2013
Attachment B - RCW Chapter 69.51A
Attachment C - Medical and Recreational Cannabis Comparison Table
Attachment D – Map of Potential State Licensed Locations for Cannabis Uses
Attachment E - Jurisdictional Comparison Table
Page | 1
M EMORANDUM
TO: Judi Roland, Chair, Planning Commission
Ron Copple, Vice-Chair, Planning Commission
Planning Commission Members
CC: Mayor Lewis
Jeff Tate, Interim Planning and Development Director
Elizabeth Chamberlain, AICP, Planning Services Manager
FROM: David L. Jones, AICP, Senior Planner
DATE: December 3, 2013
RE: RECREATIONAL MARIJUANA: Overview, Work to Date, and Next Steps
Overview
On November 6, 2012, the people of the State of Washington voted to pass State Initiative 502
(I-502) allowing the State to license and regulate marijuana production, distribution, and
possession for persons over 21; as well as remove the state law criminal and civil penalties for
activities it authorizes. The initiative allowed the Washington State Liquor Control Board
(WSLCB) to write the rules, or implementation details, of the new “seed to sale” system. These
activities are licensed by the State under Revised Code of Washington (RCW), Sections
69.50.325 - .369 as well as RCW Chapter 69.51A and/or the Washington Administrative Code
(WAC), Chapter 314-55.
I-502 also established three (3) tiers or types of licenses: marijuana producer, marijuana
processor, and marijuana retailer. No licensee can have all 3 types of licenses, but may hold a
producer and processor license simultaneously. There is no set limit for the number of licenses
for producers or processors; however, there is a capped limit on the number of retail licenses
that are allowed per jurisdiction.
Statewide: 334 licenses
King County: 61 licenses
Pierce County: 31 licenses
Auburn: 2 licenses
As of November 18, 2013, the WSLCB began accepting license applications and began
processing those applications on November 20, 2013.
In an effort to minimize the impacts to the City, further regulation of these uses are
recommended beyond the State requirements. These uses should be limited where such a use
would be compatible with the scope of existing uses and have minimal impacts to the overall
quality of the City.
Page | 2
On September 16, 2013 the City of Auburn passed a moratorium (Resolution No. 4992) on the
acceptance or processing of application for business licenses and other licenses, permits, and
approvals for marijuana/cannabis related business or uses. This moratorium was established to
act as a stop-gap measure in order to 1) provide the City with an opportunity to study the issues
concerning the siting of such State licensed marijuana/cannabis related businesses and prepare
appropriate revisions to the City’s codes and regulations, and 2) protect the health, safety, and
general welfare of the citizens of Auburn by ameliorating negative impacts of
marijuana/cannabis related businesses.
As part of the Work Plan as established in Section 5B of the moratorium, the City’s Planning
and Legal departments have engaged in a collaborative research and analysis effort of
applicable materials that relate to the passage of I-502.
Some general regulations for all marijuana license types as established by the State:
All licensees and financiers must pass a background check and must have legally been
a resident of Washington State for a minimum of 3 months prior to application.
Licenses are not transferable.
For partnerships, cooperatives, associations and other like entities, all members shall be
qualified to obtain a license.
No employee under the age of 21.
Cannot be located within 1,000 feet of any elementary/secondary school, playground,
recreation center or facility, child care center, public park, public transit center, library, or
a game arcade not restricted to proprietors 21 years or age or older.
Advertisement and product display locations.
Maximum signage: 1 sign not to exceed 1,600 square inches (11 square feet).
Maximum amounts of useable (1oz); solid infused (16oz); liquid infused products (72oz).
Home grown marijuana for recreation use is illegal; all recreational marijuana must be
purchased from a state-licensed retailer.
It is illegal to open or consume marijuana or a marijuana infused product in view of the
general public.
Will not issue a license for a marijuana business in a personal residence.
The above list of regulations is not all inclusive and only calls out those items which have been
found to be higher priority by City staff.
Work to Date
1. Planning and Legal staff has reviewed RCW Sections 69.50.325 - .369, RCW Chapter
69.51A, and WAC Chapter 314-55, as well as the efforts of other municipalities in the
south sound area.
2. Staff has reviewed the location restrictions as provided in I-502 and has created a map
exhibit of the remaining areas of the City where State licensed marijuana activities could
potentially locate.
3. Contacted the WSLCB directly to gain information regarding intent to supersede local
zoning authority.
4. Planning and Legal staff have collaborated on three (3) initial options for regulating State
licensed marijuana activities within the City limits.
Page | 3
Discussion
Staff is bringing forward three (3) options for discussion on concepts that accomplish the goal of
regulating State licensed marijuana uses within the City of Auburn corporate boundary. The
concept is to create a set of regulations and criteria that properly addresses the concerns of the
City of Auburn, and its Citizens while maintaining compliance with the intent of State law.
Option 1:
Direction: Amend current ACC to prohibit the production, processing, and retailing of
recreational marijuana in the City.
General Elements:
1. Amend ACC Chapter 9.22 to add a new subsection that bans all State licensed marijuana
uses.
NOTE: There is a pending case currently before the State Supreme Court regarding the
outright ban of State licensed marijuana uses in the City of Kent.
Option 2:
Direction: Amend current ACC Chapter 5.10 to add a new subsection that details exceptions to
City licensing requirements.
General Elements:
1. Establish exceptions to marijuana activities that are licensed by the State.
2. Removes any possible City violations to the Federal Controlled Substances Act; specifically,
aiding and abetting a Schedule I controlled substance.
Option 3:
Direction: Develop and adopt land use (zoning) regulations for State licensed marijuana uses.
General Elements:
1. Ensures minimal negative effect on the overall health, safety and general welfare of the City
while maintaining that the majority of responsibility for use compliance still falls under the
realm of the State.
2. Limit such licensed activities to zones that are compatible with such uses.
3. Adopt by reference RCW 69.50.101 which defines marijuana related elements and activities.
4. Amendments to ACC Chapters 18.23, Commercial and Industrial Zones, 18.29, DUC
Downtown Urban Center District; 18.35, Special Purpose Zones. Revisions would include,
but not limited to, license requirements, enforcement, definitions, allowed use matrices, and
development standards.
5. Such amendments will require public hearings before the Planning Commission.
Page | 4
Staff has outlined the following questions for the Planning Commission to discuss and provide
feedback to staff:
1. Options 2 - 3 can stand alone or be combined depending on the level of additional
regulation the City wishes to implement in the code, and would like feedback from the
Commission on the approach best suited to the stated purpose.
2. Is there other information that would be helpful for the Commission as they consider these
options as presented?
3. Should staff look into additional items to consider as part of code amendments such as odor
or buffering requirements beyond what the state requires?
Attachments:
Attachment A - State Initiative 502 (I-502)
Attachment B - RCW Sections 69.50.325 - .369
Attachment C - RCW Chapter 69.51A
Attachment D - WAC Chapter 314-55
Attachment E - Jurisdictional Comparison Table
Medical and Recreational Cannabis Comparison
Medical Cannabis Recreational Cannabis
Who it Covers Qualified Patients Only1 Adults 21+
Healthcare Provider
Needed Yes No
Age Restrictions No 21+
Residency
Requirements Yes No
Documentation
Required Yes No
Collective Gardens Yes No
Quantity Limits
(Collective Garden)
10 patients, 45 plants, 72oz of
useable cannabis or cannabis
product
N/A
Quantity Limits
(Individual) < 24oz / 15 plants < 1oz, 16oz, 72oz / no plants
Regulating Entity2 Not Specified WSLCB
State Issued
Licenses3 No Yes
Home Growth
Allowed Yes No
Producer Patient / Collective Gardens /
Qualified Caregiver State Licensed Producer
Processor Patient / Collective Gardens /
Qualified Caregiver State Licensed Processor
Provider
Patient / Collective Gardens /
Qualified Caregiver /
Designated Provider
State Licensed Retailer
Retail
Establishments4 No Yes
Retailer / Provider
Age 18+21+
Illness/Condition
Required Yes No
Geographic
Restrictions Yes Yes
Background
Checks No Yes
State Quality
Control No Yes
1Qualified Patient
2Regulating
Entity
3Licenses
4Retail
Establishments
Patient must have proof of identity (DL or ID card) and valid documentation (a statement signed and
dated by the patients qualified health care professional written on tamper-resistent paper that states
that in the health care professionals mind the patient may benefit from the use of medical cannabis)
WSLCB issues Producer, Processor, and Retailer Licenses.
WA State Dept. of Health is loosy engaged, but does not oversee.
Retail dispensaries are not addressed in the statute covering medical cannabis.
Initiative 502 did not contain any amendments to the medical marijuana statutes, so now there are two clearly separate
regulatory systems, one dealing with medical marijuana and the other dealing with adult recreational use of marijuana.
TS18
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S 277TH ST
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M U C K L E S H O O TMUCKLESHOOTCASINOCASINO
K E N TKENT
K I N GKINGCOUN T YCOUNTY
P A C I F I CPACIFIC
P I E R C EPIERCECOUNTYCOUNTYSUMNERSUMNER
A L G O N AALGONA
E D G E W O O DEDGEWOOD
Information shown is for general reference purposes only and does not necessarily represent exact geographic or cartographic data as mapped. The City of Auburn makes no warranty as to its accuracy.
Potential State Licensed Locations for Cannabis Uses
City of Auburn
C1 Light Comme rcial District
C2 Central Business District
C3 Heavy Commercial District
CN Neighborhood Shopping District
M1 Light Industrial District
M2 Heavy Industrial Distr ict
UNC Unclassified Use District
Printed On: 1/16/2014Map ID: 4313
¬
(After 1,000 foot Buffer Requirement)
Neighboring Jurisdictional Overview
Recreational Marijuana Efforts
Jurisdiction Moratorium
Regulations
Proposed or
Adopted Retail Zones Producer Zones Processer Zones Other Regulations Other Restrictions Notes
Kent No Banned n/a n/a n/a n/a n/a Case is currently before the WA
State Supreme Court
Issaquah Yes (6 months)Proposed
Professional
Office, Intensive
Commercial, Retail
Industrial,
Intensive
Commercial
Industrial,
Intensive
Commercial
Not permitted as
home occupation
Growing restrictions to indoors
only, not allowed as an
accessory use
Enacted Sept. 2013
Renton Yes (6 months)In Progress n/a n/a n/a n/a n/a Enacted Nov. 2013
Puyallup Yes (6 months)In Progress n/a n/a n/a n/a n/a Enacted Oct. 2013
Federal Way Yes (1 year)In Progress n/a n/a n/a n/a n/a Enacted Nov. 2013
Tacoma No Proposed
C-1, C-2, HM, PDB,
NCX, CCX, UCX,
UCX-TD, CIX, HMX
M-2, PMI M-2, PMI
producer/process
or uses prohibited
from downtown
districts. Retailer is
allowed
Retail limited to 7,000SF in C-1,
C-2, HM, PDB, NCX, CCX, UCX,
UCX-TD, CIX, HMX, PMI zones;
Retail limited to 10,000SF
within the S. Tacoma M/IC
Overlay District in M-2; and
15,000SF in M-1
Enacted Nov. 2013
King County No Proposed
Neighborhood
Business,
Community
Business, Regional
Business
Agricultural &
Rural Area
Agricultural &
Rural Area
Indoor & outdoor
growing and
processing
grouped together
No
Pierce County Lifted Adopted Prohibited Prohibited Prohibited n/a n/a
Enacted Dec. 2013 for
unincorporated areas only
First Draft: November 27, 2013 Version 1.1 Revised: 01.16.2014
STATUTES—INITIATIVE AND REFERENDUM—ORDINANCES—
COUNTIES—CITIES AND TOWNS—PREEMPTION—POLICE POWERS—
Whether Statewide Initiative Establishing System For Licensing
Marijuana Producers, Processors, And Retailers Preempts Local
Ordinances
1.Initiative 502, which establishes a licensing and regulatory system
for marijuana producers, processors, and retailers, does not
preempt counties, cities, and towns from banning such businesses
within their jurisdictions.
2.Local ordinances that do not expressly ban state-licensed marijuana
licensees from operating within the jurisdiction but make such
operation impractical are valid if they properly exercise the local
jurisdiction’s police power.
January 16, 2014
The Honorable Sharon Foster
Chair, Washington State Liquor Control Board
3000 Pacific Avenue SE
Olympia, WA 98504-3076
Cite As:
AGO 2014 No. 2
Dear Chair Foster:
By letter previously acknowledged, you have requested our opinion on the
following paraphrased questions:
1.Are local governments preempted by state law from
banning the location of a Washington State Liquor Control
Board licensed marijuana producer, processor, or retailer
within their jurisdiction?
2.May a local government establish land use regulations (in
excess of the Initiative 502 buffer and other Liquor Control
Board requirements) or business license requirements in a
fashion that makes it impractical for a licensed marijuana
business to locate within their jurisdiction?
BRIEF
ANSWERS
1.No. Under Washington law, there is a strong presumption against finding that
state law preempts local ordinances. Although Initiative 502 (I-502) establishes
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
[original page 2]
Bob Ferguson | 2013-2016 | Attorney General of Washington
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businesses. We therefore conclude that I-502 left in place the normal powers of
local governments to regulate within their jurisdictions.
2.Yes. Local governments have broad authority to regulate within their
jurisdictions, and nothing in I-502 limits that authority with respect to licensed
marijuana businesses.
BACKGROUND
I-502 was approved by Washington voters on November 6, 2012, became effective
30 days thereafter, and is codified in RCW 69.50. It decriminalized under state law
the possession of limited amounts of useable marijuana[1] and marijuana-infused
products by persons twenty-one years or older. It also decriminalized under state law
the production, delivery, distribution, and sale of marijuana, so long as such activities
are conducted in accordance with the initiative’s provisions and implementing
regulations. It amended the implied consent laws to specify that anyone operating a
motor vehicle is deemed to have consented to testing for the active chemical in
marijuana, and amended the driving under the influence laws to make it a criminal
offense to operate a motor vehicle under the influence of certain levels of marijuana.
I-502 also established a detailed licensing program for three categories of
marijuana businesses: production, processing, and retail sales. The marijuana
producer’s license governs the production of marijuana for sale at wholesale to
marijuana processors and other marijuana producers. RCW 69.50.325(1). The
marijuana processor’s license governs the processing, packaging, and labeling of
useable marijuana and marijuana-infused products for sale at wholesale to marijuana
retailers. RCW 69.50.325(2). The marijuana retailer’s license governs the sale of
useable marijuana and marijuana-infused products in retail stores. RCW 69.50.325
(3).
Applicants for producer, processor, and retail sales licenses must identify the
location of the proposed business. RCW 69.50.325(1), (2), (3). This helps ensure
compliance with the requirement that “no license may be issued authorizing a
marijuana business 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.”RCW 69.50.331
(8).
Upon receipt of an application for a producer, processor, or retail sales license, the
Liquor Control Board must give notice of the application to the appropriate local
jurisdiction. RCW 69.50.331(7)(a) (requiring notice to the chief executive officer of
the incorporated city or town if the application is for a license within an incorporated
city or town, or the county legislative authority if the application is for a license
outside the boundaries of incorporated
[original page 3]
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cities or towns). The local jurisdiction may file written objections with respect to the
applicant or the premises for which the new or renewed license is sought. RCW
69.50.331(7)(b).
The local jurisdictions’ written objections must include a statement of all facts upon
which the objections are based, and may include a request for a hearing, which the
Liquor Control Board may grant at its discretion. RCW 69.50.331(7)(c). The Board
must give “substantial weight” to a local jurisdiction’s objections based upon chronic
illegal activity associated with the applicant’s operation of the premises proposed to
be licensed, the applicant’s operation of any other licensed premises, or the conduct of
the applicant’s patrons inside or outside the licensed premises. RCW 69.50.331(9).
Chronic illegal activity is defined as a pervasive pattern of activity that threatens the
public health, safety, and welfare, or an unreasonably high number of citations for
driving under the influence associated with the applicant’s or licensee’s operation of
any licensed premises. RCW 69.50.331(9).[2]
In addition to the licensing provisions in statute, I-502 directed the Board to adopt
rules establishing the procedures and criteria necessary to supplement the licensing
and regulatory system. This includes determining the maximum number of retail
outlets that may be licensed in each county, taking into consideration population
distribution, security and safety issues, and the provision of adequate access to
licensed sources of useable marijuana and marijuana-infused products to discourage
purchases from the illegal market. RCW 69.50.345(2). The Board has done so,
capping the number of retail licenses in the least populated counties of Columbia
County, Ferry County, and Wahkiakum County at one and the number in the most
populated county of King County at 61, with a broad range in between. See WAC 314-
55-081.
The Board also adopted rules establishing various requirements mandated or
authorized by I-502 for locating and operating marijuana businesses on licensed
premises, including minimum residency requirements, age restrictions, and
background checks for licensees and employees; signage and advertising limitations;
requirements for insurance, recordkeeping, reporting, and taxes; and detailed
operating plans for security, traceability, employee qualifications and training, and
destruction of waste. See generally WAC 314-55.
Additional requirements apply for each license category. Producers must describe
plans for transporting products, growing operations, and testing procedures and
protocols. WAC 314-55-020(9). Processors must describe plans for transporting
products, processing operations, testing procedures and protocols, and packaging and
labeling. WAC 314-55-020(9). Finally, retailers must also describe which products
will be sold and how they will be displayed, and may only operate between 8 a.m. and
12 midnight. WAC 314-55-020(9), -147.
The rules also make clear that receipt of a license from the Liquor Control Board
does not entitle the licensee to locate or operate a marijuana processing, producing, or
retail business in violation of local rules or without any necessary approval from local
jurisdictions. WAC 314-
[original page 4]
-55-020(11) provides as follows: “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
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including, but not limited to: Building and fire codes, zoning ordinances, and
business licensing requirements.
ANALYSIS
Your question acknowledges that local governments have jurisdiction over land use
issues like zoning and may exercise the option to issue business licenses. This
authority comes from article XI, section 11 of the Washington Constitution, which
provides that “[a]ny 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.”The limitation on this broad local authority requiring that such
regulations not be “in conflict with general laws” means that state law can preempt
local regulations and render them unconstitutional either by occupying the field of
regulation, leaving no room for concurrent local jurisdiction, or by creating a conflict
such that state and local laws cannot be harmonized. Lawson v. City of Pasco,168
Wn.2d 675, 679, 230 P.3d 1038 (2010).
Local ordinances are entitled to a presumption of constitutionality. State v. Kirwin,
165 Wn.2d 818, 825, 203 P.3d 1044 (2009). Challengers to a local ordinance bear a
heavy burden of proving it unconstitutional. Id.“Every presumption will be in favor
of constitutionality.”HJS Dev., Inc. v. Pierce County ex rel. Dep’t of Planning & Land
Servs., 148 Wn.2d 451, 477, 61 P.3d 1141 (2003) (internal quotation marks omitted).
A. Field Preemption
Field preemption arises when a state regulatory system occupies the entire field of
regulation on a particular issue, leaving no room for local regulation. Lawson,168
Wn.2d at 679. Field preemption may be expressly stated or may be implicit in the
purposes or facts and circumstances of the state regulatory system. Id.
I-502 does not express any indication that the state licensing and operating system
preempts the field of marijuana regulation. Although I-502 was structured as a series
of amendments to the controlled substances act, which does contain a preemption
section, that section makes clear that state law “fully occupies and preempts the entire
field of setting penalties for violations of the controlled substances act.”RCW
69.50.608 (emphasis added).[3] It also allows “[c]ities, towns, and counties or other
municipalities [to] enact only those laws and
[original page 5]
ordinances relating to controlled substances that are consistent with this chapter.”
RCW 69.50.608. Nothing in this language expresses an intent to preempt the entire
field of regulating businesses licensed under I-502.
With respect to implied field preemption, the “legislative intent” of an initiative is
derived from the collective intent of the people and can be ascertained by material in
the official voter’s pamphlet. Dep’t of Revenue v. Hoppe,82 Wn.2d 549, 552, 512
P.2d 1094 (1973); see also Roe v. TeleTech Customer Care Mgmt., LLC,171 Wn.2d
736, 752-53, 257 P.3d 586 (2011). Nothing in the official voter’s pamphlet evidences a
collective intent for the state regulatory system to preempt the entire field of
marijuana business licensing or operation. Voters’ Pamphlet 23-30 (2012).
Moreover, both your letter and the Liquor Control Board’s rules recognize the
authority of local jurisdictions to impose regulations on state licensees. These facts, in
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addition to the absence of express intent suggesting otherwise, make clear that I-502
and its implementing regulations do not occupy the entire field of marijuana business
regulation.
B. Conflict Preemption
Conflict preemption arises “when an ordinance permits what state law forbids or
forbids what state law permits.”Lawson,168 Wn.2d at 682. An ordinance is
constitutionally invalid if it directly and irreconcilably conflicts with the statute such
that the two cannot be harmonized. Id.; Weden v. San Juan County, 135 Wn.2d 678,
693, 958 P.2d 273 (1998). Because “[e]very presumption will be in favor of
constitutionality,” courts make every effort to reconcile state and local law if possible.
HJS Dev., 148 Wn.2d at 477 (internal quotation marks omitted). We adopt this same
deference to local jurisdictions.
An ordinance banning a particular activity directly and irreconcilably conflicts with
state law when state law specifically entitles one to engage in that same activity in
circumstances outlawed by the local ordinance. For example, in Entertainment
Industry Coalition v. Tacoma-Pierce County Health Department,153 Wn.2d 657, 661
-63, 105 P.3d 985 (2005), the state law in effect at the time banned smoking in public
places except in designated smoking areas, and specifically authorized owners of
certain businesses to designate smoking areas. The state law provided, in relevant
part: “A smoking area may be designated in a public place by the owner . . . .”Former
RCW 70.160.040(1) (2004), repealed by Laws of 2006, ch. 2, § 7(2) (Initiative
Measure 901). The Tacoma-Pierce County Health Department ordinance at issue
banned smoking in all public places. The Washington Supreme Court struck down
the ordinance as directly and irreconcilably conflicting with state law because it
prohibited what the state law authorized: the business owner’s choice whether to
authorize a smoking area.
Similarly, in Parkland Light & Water Co. v. Tacoma-Pierce County Board of
Health,151 Wn.2d 428, 90 P.3d 37 (2004), the Washington Supreme Court
invalidated a Tacoma-Pierce County Health Department ordinance requiring
fluoridated water. The state law at issue authorized the water districts to decide
whether to fluoridate, saying: “A water district by a
[original page 6]
majority vote of its board of commissioners may fluoridate the water supply system of
the water district.”RCW 57.08.012. The Court interpreted this provision as giving
water districts the ability to regulate the content and supply of their water systems.
Parkland Light & Water Co.,151 Wn.2d at 433. The local health department’s
attempt to require fluoridation conflicted with the state law expressly giving that
choice to the water districts. As they could not be reconciled, the Court struck down
the ordinance as unconstitutional under conflict preemption analysis.
By contrast, Washington courts have consistently upheld local ordinances banning
an activity when state law regulates the activity but does not grant an unfettered right
or entitlement to engage in that activity. In Weden v. San Juan County,the Court
upheld the constitutionality of the County’s prohibition on motorized personal
watercraft in all marine waters and one lake in San Juan County. The state laws at
issue created registration and safety requirements for vessels and prohibited
operation of unregistered vessels. The Court rejected the argument that state
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regulation of vessels constituted permission to operate vessels anywhere in the state,
saying, “[n]owhere in the language of the statute can it be suggested that the statute
creates an unabridged right to operate [personal watercraft] in all waters throughout
the state.”Weden,135 Wn.2d at 695. The Court further explained that “[r]egistration
of a vessel is nothing more than a precondition to operating a boat.”Id.“No
unconditional right is granted by obtaining such registration.”Id.Recognizing that
statutes often impose preconditions without granting unrestricted permission to
participate in an activity, the Court also noted the following examples: “[p]urchasing
a hunting license is a precondition to hunting, but the license certainly does not allow
hunting of endangered species or hunting inside the Seattle city limits,” and “[r]
eaching the age of 16 is a precondition to driving a car, but reaching 16 does not create
an unrestricted right to drive a car however and wherever one desires.”Id. at 695
(internal citation omitted).
Relevant here, the dissent in Weden argued: “Where a state statute licenses a
particular activity, counties may enact reasonable regulations of the licensed activity
within their borders but they may not prohibit same outright[,]” and that an
ordinance banning the activity “renders the state permit a license to do nothing at
all.”Weden,135 Wn.2d at 720, 722 (Sanders, J., dissenting). The majority rejected
this approach, characterizing the state law as creating not an unabridged right to
operate personal watercraft in the state, but rather a registration requirement that
amounted only to a precondition to operating a boat in the state.
In State ex rel. Schillberg v. Everett District Justice Court, 92 Wn.2d 106, 594 P.2d
448 (1979), the Washington Supreme Court similarly upheld a local ban on internal
combustion motors on certain lakes. The Court explained: “A statute will not be
construed as taking away the power of a municipality to legislate unless this intent is
clearly and expressly stated.”Id.at 108. The Court found no conflict because nothing
in the state laws requiring safe operation of vessels either expressly or impliedly
provided that vessels would be allowed on all waters of the state.
[original page 7]
The Washington Supreme Court also rejected a conflict preemption challenge to the
City of Pasco’s ordinance prohibiting placement of recreational vehicles within mobile
home parks. Lawson, 168 Wn.2d at 683-84. Although state law regulated rights and
duties arising from mobile home tenancies and recognized that such tenancies may
include recreational vehicles, the Court reasoned “[t]he statute does not forbid
recreational vehicles from being placed in the lots, nor does it create a right enabling
their placement.”Id.at 683. The state law simply regulated recreational vehicle
tenancies, where such tenancies exist, but did not prevent municipalities from
deciding whether or not to allow them. Id.at 684.
Accordingly, the question whether “an ordinance . . . forbids what state law
permits” is more complex than it initially appears. Lawson,168 Wn.2d at 682. The
question is not whether state law permits an activity in some places or in some
general sense; even “[t]he fact that an activity may be licensed under state law does
not lead to the conclusion that it must be permitted under local law.”Rabon v. City of
Seattle, 135 Wn.2d 278, 292, 957 P.2d 621 (1998) (finding no preemption where state
law authorized licensing of “dangerous dogs” while city ordinance forbade ownership
of “vicious animals”). Rather, a challenger must meet the heavy burden of proving
that state law creates an entitlement to engage in an activity in circumstances
outlawed by the local ordinance. For example, the state laws authorizing business
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owners to designate smoking areas and water districts to decide whether to fluoridate
their water systems amounted to statewide entitlements that local jurisdictions could
not take away. But the state laws requiring that vessels be registered and operated
safely and regulating recreational vehicles in mobile home tenancies simply
contemplated that those activities would occur in some places and established
preconditions; they did not, however, override the local jurisdictions’ decisions to
prohibit such activities.
Here, I-502 authorizes the Liquor Control Board to issue licenses for marijuana
producers, processors, and retailers. Whether these licenses amount to an
entitlement to engage in such businesses regardless of local law or constitute
regulatory preconditions to engaging in such businesses is the key question, and
requires a close examination of the statutory language.
RCW 69.50.325 provides, in relevant part:
(1) There shall be a marijuana producer’s license to produce marijuana for
sale at wholesale to marijuana processors and other marijuana producers,
regulated by the state liquor control board and subject to annual renewal. .
. .
(2) There shall be a marijuana processor’s license to process, package, and
label useable marijuana and marijuana-infused products for sale at
wholesale to marijuana retailers, regulated by the state liquor control
board and subject to annual renewal. . . .
[original page 8]
(3) There shall be a marijuana retailer’s license to sell useable marijuana
and marijuana-infused products at retail in retail outlets, regulated by the
state liquor control board and subject to annual renewal. . . .
RCW 69.50.325(1)-(3). Each of these subsections also includes language providing
that activities related to such licenses are not criminal or civil offenses under
Washington state law, provided they comply with I-502 and the Board’s rules, and
that the licenses shall be issued in the name of the applicant and shall specify the
location at which the applicant intends to operate. They also establish fees for
issuance and renewal and clarify that a separate license is required for each location at
which the applicant intends to operate. RCW 69.50.325.
While these provisions clearly authorize the Board to issue licenses for marijuana
producers, processors, and retail sales, they lack the definitive sort of language that
would be necessary to meet the heavy burden of showing state preemption. They
simply state that there “shall be a . . . license” and that engaging in such activities with
a license “shall not be a criminal or civil offense under Washington state law.”RCW
69.50.325(1). Decriminalizing such activities under state law and imposing
restrictions on licensees does not amount to entitling one to engage in such
businesses regardless of local law. Given that “every presumption” is in favor of
upholding local ordinances (HJS Dev., Inc.,148 Wn.2d at 477), we find no
irreconcilable conflict between I-502’s licensing system and the ability of local
governments to prohibit licensees from operating in their jurisdictions.
We have considered and rejected a number of counterarguments in reaching this
conclusion. First, one could argue that the statute, in allowing Board approval of
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licenses at specific locations (RCW 69.50.325(1), (2), (3)), assumes that the Board can
approve a license at any location in any jurisdiction. This argument proves far too
much, however, for it suggests that a license from the Board could override any local
zoning ordinance, even one unrelated to I-502. For example, I-502 plainly would not
authorize a licensed marijuana retailer to locate in an area where a local jurisdiction’s
zoning allows no retail stores of any kind. The Board’s own rules confirm this: “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
-020(11).
Second, one could argue that a local jurisdiction’s prohibition on marijuana
licensees conflicts with the provision in I-502 authorizing the Board to establish a
maximum number of licensed retail outlets in each county. RCW 69.50.345(2); see
also RCW 69.50.354. But there is no irreconcilable conflict here, because the Board is
allowed to set only a maximum, and nothing in I-502 mandates a minimum number
of licensees in any jurisdiction. The drafters of I-502 certainly could have provided
for a minimum number of licensees per jurisdiction, which would have been a
stronger indicator of preemptive intent, but they did not.
[original page 9]
Third, one could argue that because local jurisdictions are allowed to object to
specific license applications and the Board is allowed to override those objections and
grant the license anyway (RCW 69.50.331(7), (9)), local jurisdictions cannot have the
power to ban licensees altogether. But such a ban can be harmonized with the
objection process; while some jurisdictions might want to ban I-502 licensees
altogether, others might want to allow them but still object to specific applicants or
locations. Indeed, this is the system established under the state liquor statutes, which
I-502 copied in many ways. Compare RCW 69.50.331 with RCW 66.24.010
(governing the issuance of marijuana licenses and liquor licenses, respectively, in
parallel terms and including provisions for local government input regarding
licensure). The state laws governing liquor allow local governments to object to
specific applications (RCW 66.24.010), while also expressly authorizing local areas to
prohibit the sale of liquor altogether. See generally RCW 66.40. That the liquor opt
out statute coexists with the liquor licensing notice and comment process undermines
any argument that a local marijuana ban irreconcilably conflicts with the marijuana
licensing notice and comment opportunity.
Fourth, RCW 66.40 expressly allows local governments to ban the sale of liquor.
Some may argue that by omitting such a provision, I-502’s drafters implied an intent
to bar local governments from banning the sale of marijuana. Intent to preempt,
however, must be “clearly and expressly stated.”State ex rel. Schillberg, 92 Wn.2d at
108. Moreover, it is important to remember that cities, towns, and counties derive
their police power from article XI, section 11 of the Washington Constitution, not from
statute. Thus, the relevant question is not whether the initiative provided local
jurisdictions with such authority, but whether it removed local jurisdictions’
preexisting authority.
Finally, in reaching this conclusion, we are mindful that if a large number of
jurisdictions were to ban licensees, it could interfere with the measure’s intent to
supplant the illegal marijuana market. But this potential consequence is insufficient
to overcome the lack of clear preemptive language or intent in the initiative itself. The
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drafters of the initiative certainly could have used clear language preempting local
bans. They did not. The legislature, or the people by initiative, can address this
potential issue if it actually comes to pass.
With respect to your second question, about whether local jurisdictions can impose
regulations making it “impractical” for I-502 licensees to locate and operate within
their boundaries, the answer depends on whether such regulations constitute a valid
exercise of the police power or otherwise conflict with state law. As a general matter,
as discussed above, the Washington Constitution provides broad authority for local
jurisdictions to regulate within their boundaries and impose land use and business
licensing requirements. Ordinances must be a reasonable exercise of a jurisdiction’s
police power in order to pass muster under article XI, section 11 of the state
constitution. Weden,135 Wn.2d at 700. A law is a reasonable regulation if it
promotes public safety, health, or welfare and bears a reasonable and substantial
relation to accomplishing the purpose pursued. Id.(applying this test to the personal
watercraft ordinance); see also Duckworth v. City of Bonney Lake,91 Wn.2d 19, 26,
586 P.2d 860 (1978) (applying this
[original page 10]
test to a zoning ordinance). Assuming local ordinances satisfy this test, and that no
other constitutional or statutory basis for a challenge is presented on particular facts,
we see no impediment to jurisdictions imposing additional regulatory requirements,
although whether a particular ordinance satisfies this standard would of course
depend on the specific facts in each case.
We trust that the foregoing will be useful to you.
ROBERT W.
FERGUSON
Attorney
General
JESSICA FOGEL
Assistant
Attorney
General
wros
[1] Useable marijuana means “dried marijuana flowers” and does not include
marijuana-infused products. RCW 69.50.101(ll).
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[2] The provision for objections based upon chronic illegal activity is identical to one
of the provisions for local jurisdictions to object to the granting or renewal of liquor
licenses. RCW 66.24.010(12).
[3] RCW 69.50.608 provides: “The state of Washington fully occupies and preempts
the entire field of setting penalties for violations of the controlled substances act.
Cities, towns, and counties or other municipalities may enact only those laws and
ordinances relating to controlled substances that are consistent with this chapter.
Such local ordinances shall have the same penalties as provided for by state law.
Local laws and ordinances that are inconsistent with the requirements of state law
shall not be enacted and are preempted and repealed, regardless of the nature of the
code, charter, or home rule status of the city, town, county, or municipality.”The
Washington Supreme Court has interpreted this provision as giving local jurisdictions
concurrent authority to criminalize drug-related activity. City of Tacoma v. Luvene,
118 Wn.2d 826, 835, 827 P.2d 1374 (1992).
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