HomeMy WebLinkAbout08-06-2014 PLANNING COMMISSION AGENDAA F
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PLANNING COMMISSION MEETING
CALL TO ORDER — 7:00 p.m., Council Chambers
II. ROLL CALL /ESTABLISHMENT OF QUORUM
III. APPROVAL OF MINUTES
A. July 8, 2014
August 6, 2014
AGENDA
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. PUBLIC HEARINGS
A. ZOA14 -0003 — Proposed Amendment to Auburn City Code* (Jones)
Summary: Staff to provide two (2) proposed amendments to zoning code section
9.22.010 or ACC 1.04.060, 5.10.040, 9.22.010, 18.02.020, and 18.07.010 relating to
recreational marijuana for consideration.
VII. ADJOURNMENT
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.
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PLANNING COMMISSION
July 8, 2014
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, Commissioner
Couture, Commissioner Mason, and Commissioner Smith. Vice -Chair Copple and
Commissioner Baggett are excused. Commissioner Pondelick is recused.
Staff present included: Planning and Design Services Manager Elizabeth Chamberlain,
City Attorney Dan Heid, Senior Planner David Jones, and Planning Secretary Tina Kriss.
Members of the public present: COA Police Commander Mark Caillier, Dale Woolf and
James Blankenship.
III. APPROVAL OF MINUTES
A. June 3, 2014
Commissioner Smith moved and Commissioner Mason seconded to approve the
minutes from the June 3, 2014 meeting as written.
MOTION CARRIED UNANIMOUSLY 4 -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 and Design Services Manager Elizabeth Chamberlain provided an updated
organizational chart for the Community Development Services division since merging
with Public Works as the Community Development and Public Works Department.
The Imagine Auburn draft vision report has been issued and reviewed by City Council at
the Committee of the Whole meeting June 30th, 2014. Staff will be providing a copy of
the report as soon as it is finalized; the report will be used to guide the City through the
Comprehensive Plan update.
The Hearing Examiner has approved CUP14 -0001 and CUP14 -0002, with specific
conditions. The CUPs, regarding Communal Residences, went before the Hearing
Examiner at the May 28, 2014 Public Hearing. The City Council has also enacted a one
(1) year moratorium on communal residences; continued discussions will take place to
review policy direction. The Communal Residence topic will be brought before the
Planning Commission for further discussion.
PLANNING COMMISSION MEETING MINUTES July 8, 2014
The Commission asked staff for a copy of the Hearing Examiner decision on the CUPs,
staff confirmed a copy will be provided to the Commission.
VI. OTHER BUSINESS
A. Comprehensive Plan Overview
Planning and Design Services Manager Elizabeth Chamberlain provided an overview
of the comprehensive plan amendment process, including how the state
requirements and regional documents relate to Auburn's Comprehensive Plan
update and the required and optional elements.
Staff explained the timeline of the plan update, the goal will be to provide the
Planning Commission with a draft in late fall.
B. Recreational Marijuana
Senior Planner Jones provided an overview regarding 1 -502 and reviewed the draft
code language for Option 1, Prohibition of State Licensed Marijuana Uses, and
Option 2, No City Permitting of Marijuana Uses but allowing for City enforcement of
State Licensed Marijuana Requirements.
Staff reviewed the local jurisdictions actions on recreational marijuana to date. The
Commission and staff discussed the proposed amended language in Auburn City
Code (ACC) 9.22.010 regarding exceptions.
After reviewing the proposed draft code language the Commission determined that
they would like to hold a Public Hearing on Recreational Marijuana to present the
draft ordinances drawn up for Option 1 and Option 2.
Staff will draft the proposed ordinances and code language for Option 1 and Option 2
to present at a public hearing at the August 6th, 2014 meeting.
Due to the City holding their National Night Out August 5, 2016, the next Planning
Commission meeting will be held Wednesday, August 6, 2014 at 7:00 p.m.
VII. ADJOURNMENT
There being no further business to come before the Planning Commission, Chair Roland
adjourned the meeting at 8:23 p.m.
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'RN MEMORANDUM
WASHINGTON
TO: Judi Roland, Chair, Planning Commission
Ron Copple, Vice - Chair, Planning Commission
Planning Commission Members
CC: Nancy Backus, Mayor
Jeff Tate, Assistant Director, Community Development Services
Elizabeth Chamberlain, AICP, Planning Services Manager
David L. Jones, AICP, Senior Planner
FROM: Daniel B. Heid, City Attorney
DATE: August 1, 2014
RE: Marijuana — Public Hearing — Record Documents
A. Introduction.
On the 6th day of August, 2014, the Auburn Planning Commission is scheduled to conduct a
public hearing to consider amendments to the Auburn City Code (ACC). Two draft proposals
have been prepared - Option 1, a prohibition of State licensed marijuana uses (amending ACC
9.22.010) and Option 2, a proposal that would not have the City as the permitting agency of any
marijuana activities but would put the City in the position of enforcing [prosecuting violations of]
State licensed marijuana requirements (amending ACC 1.04.060, 5.10.040, 9.22.010, 18.02.020
and 18.07.010).
B. Procedural Background.
On September 16, 2013, the City Council passed its Resolution No. 4992 imposing an initial
one -year moratorium on the acceptance of applications for, and issuance of licenses and
permits for marijuana related activities, including, marijuana production, processing and retailing
within the City of Auburn
C. Proposed Amendment to Auburn City Code.
In response to the direction of the City Council, staff, working with the Planning
Commission, prepared two alternate proposed ordinances, as follows:, as follows:
Option 1, involving the Prohibition of Marijuana within the City, proposing to amend Section
9.22.010, as follows:
Page 1
9.22.010 Marijuana prohibited.
A. Except as authorized under United States Code (USC) Title 21:
Controlled Substances Ac-b, the Gode of WashiRgt,,, it is unlawful for any
person or persons to prow, manufacture, process, deliver, grow, or mess —sell
marijuana.
B. Except as authorized by the Revised Code of Washington, it is unlawful
for any person to possess marijuana.
C. "Marijuana," also known as "marihuana" means all parts of the plant e# the
geR616 ^°RA °him Cannabis sativa L., 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 th-e-such plant, fiber produced from th-e-such
stalks, oil or cake made from the seeds of the—such plant, any other compound,
manufacture, salt, derivative, mixture, or preparation of the-such mature stalks (except
the resins extracted therefrom), fiber, oil, or cake, or the sterilized seed of th-e-such plant
which is incapable of germination.
D. Violation of the provisions of this Section shall constitute a misdemeanor,
punishable by imprisonment in mail 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. 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. 6300
§ 1, 2010; Ord. 5682 § 1, 2002.)
Option 2, authorizing the City to take enforcement action to assure that there is compliance with
the state regulations involving Initiative 502, whereby the City would be an enforcing entity but
not the permitting or licensing agent for marijuana related business. This Option proposes to
amend Sections 1.04.060, 5.10.040, 9.22.010, 18.02.020 and 18.07.010 [Intent of Residential
Zone] of the Auburn City Code, as follows:
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. Ti+s -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
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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.)
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 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.)
9.22.010 Marijuana prohibited.
A. Except as authorized under United States Code (USC) Title 21:
Controlled Substances Ac -b, the R-iSed- Ged-e- of WaGhiRgtG14, it is unlawful for any
person or persons to prow, manufacture, process, deliver, grow, or mess -sell
marijuana.
B. Except as authorized by the Revised Code of Washington, it is unlawful
for any person to possess marijuana.
C. "Marijuana," also known as "marihuana" means all parts of the plant e# the
geR 1° GaRA;Rhic; Cannabis sativa L., whether growing or not; the seeds thereof; the
resins extracted from any part of the plant; and every compound, manufacture, salt,
Page 3
derivative, mixture, or preparation of the -such plant, its seeds or resin, and includes all
marijuana concentrates, useable mariivana, 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 of the -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 mail 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.)
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 36.70B RCW. In accordance with ACC 1.04.060_�d
B. Aeb.v,+hqt -;;Ad rn 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 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 § 4, 2012; Ord.
6245 § 2, 2009.)
18.07.010 Intent.
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.
Page 4
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
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
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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.)
Initially, three alternatives were identified, with the third alternative - Option 3 - being one
involving the city of Auburn actually becoming the licensing and permitting agency, rather than
just relying upon state regulations. In this instance, the city of Auburn would likely depart from
the state regulations in some fashion or another, perhaps making the regulations more stringent
or identifying more particularly zoning limitations. However, as noted below, there are
disadvantages with the City being the licensing and permitting agency.
D. Reasons for Options.
The option of the City becoming the permitting agency was discarded by the planning
commission and not recommended by city staff because it included liability exposures stemming
from the fact that marijuana is (still) illegal under federal law, and even though state law may
decriminalize marijuana related activities, city involvement in permitting or licensing marijuana
related businesses could pose jeopardy for those city employees who would, in essence, be
violating federal law.
The two options avoided city licensing and permitting activities of marijuana businesses, with
Option 1 providing for a prohibition of marijuana activities within the city, though that does not
mean that the city would be enforcing possession of marijuana consistent with what used to be
the case prior to the passage of Initiative 502; and Option 2 allowing the city to take
enforcement action to assure compliance with the state regulations for marijuana related
businesses, though, still, keeping the city out of the actual permitting and licensing role. The
rationale can be summarized as follows:
1 NOTE: The inclusion of ACC Section 18.07.010 among the code sections being amended is to address the issue of
placement of marijuana related businesses in residential zones, something that is not precluded or prohibited by
state regulations. By prohibiting any business (except as specifically provided) from being located in a residential
zone that does not have a City of Auburn business license, marijuana businesses would be precluded from being
located in residential zones as they would not have a city of Auburn business license. Again, this is because neither
the initiative nor the RCW or WAC provisions preclude placement of marijuana related businesses in residential
zones. Ironically, the initiative and the state regulations do expressly prohibit locating a marijuana business in a
residence (and occupied residence), but that is the only prohibition related to residential properties.
Page 6
(1) Marijuana remains illegal under federal law. The memorandum issued by the U.S.
Attorney General's office on August 29, 2013 did not change the law, but only announced the
decision of the U.S. Attorney's Office to exercise prosecutorial discretion with regard to
enforcement of the federal law within the States of Colorado and Washington. The U.S.
Attorney" Office reserved the power to prosecute in any instance where it felt the efforts of the
states fell short of "robust regulation," where a threat exists for the illegal distribution to minors,
or where a threat of interstate distribution of marijuana was encountered.
(2) The City of Auburn has been granted constitutional authority to enact legislation
regulating land uses within its jurisdiction so long as such local legislation is consistent with [not
in conflict with] the general laws (Constitution Article 11, Section 11). Essentially,
notwithstanding voter approval of initiative 502, action by the city in developing and
promulgating regulations relating to marijuana related businesses would have the city taking
action in conflict with the general laws, in this case federal law.
(3) Some have argued that city do not have the right to take action inconsistent with state
law, even voter approved initiative state law, however, the law dictates when state law preempts
local action, and that does not apply in this instance. Nothing in Initiative Measure No. 502
( "Initiative 502 ") decriminalizing possession, use and delivery of specified amounts of
marijuana and authorizing the Washington State Liquor Control Board ( WSLCB) to develop and
implement regulations for the licensing of marijuana production, processing and retailing
expressly or impliedly preempts the City of Auburn, or any city in the state, from exercising its
land use regulatory authority, including the ban of marijuana production, processing and
retailing within city limits. This is not only consistent with the language of the initiative, but it is
the conclusion reached by the state attorney general in AGO 2014 No. 2.
(4) The prohibition of marijuana production, processing and retailing within the City of
Auburn does not contravene the purposes of Initiative 502, and does not alter the provisions of
Initiative 502 that authorize the WSLCB to designate the maximum number of marijuana retail
outlets in each county. If a local ban is enacted by the City of Auburn, the number of retail
outlets allocated by the WSLCB to the City of Auburn become "at large" retail locations.
At large retail outlets can be located in the unincorporated county or any other city not allocated
a number of retail outlets, all in accordance with the provisions of Initiative 502.
(5) While Initiative 502 contains restrictions prohibiting location of marijuana production,
processing and retail outlets within 1,000 feet of public schools, public parks, public libraries and
other protected uses, it does not contain restrictions prohibiting location of marijuana licensed
facilities within residential districts, community recreational trails, or private parks, facilities and
areas that serve the public.
(6) Studies reporting secondary effects associated with analogous medical marijuana
dispensaries in other cities and counties include reports of murders, robberies, burglaries, drug
dealing, sales to minors, loitering, heavy foot and vehicle traffic, increased noise, odors, health
hazards such as proliferation of molds; See, "White Paper on Marijuana Dispensaries,"
California Police Chiefs Association's Task Force on Marijuana Dispensaries (April 22, 2009)
was issued ( "CAPCA White Paper "); City of Riverside v. Inland Empire Patients Health and
Welfare Center, 56 CalAth 729, 756, 300 P.3d 494 (2013).
Page 7
(7) Initiative 502 does not require that any city allow the location of any marijuana
production, processing or retailing facility within its jurisdiction. Regulations adopted by the
WSLCB implementing Initiative 502 specifically state that any license issued by the WSLCB
does not constitute approval of the location of the licensed facility within any city. Such uses are
subject to the land use regulations of the city.
(8) If the City of Auburn opted not to actually prohibit marijuana businesses within the city, it
could rely upon the state regulations to address the concerns it has, and could, actually,
preserved for itself the authority to enforce those regulations without it being the permitting and
licensing agency. As an illustration, this is not that much different than the fact that local police
officers and city prosecutors can prosecute violators who drive without a license even though
the city does not issue driver's licenses. The state regulations do impose restrictions on
marijuana businesses, including setbacks from certain sensitive uses, requirements of security
and signage, among others. So long as the city can live with those restrictions, the city does not
need to be the licensing and permitting agency, and that keeps the city out of the dilemma of
fighting its employees essentially violating federal law in support of businesses licensed under
the authority of state law.
E. Referenced Documents.
The following documents, many of which have been previously provided to the Planning
Commission, or have been referenced in the materials or are the basis of opinions and positions
taken in connection with and in preparation of the draft proposals for Options 1 and 2
[descriptions of which are provided for ease of reference]:
(1) Initiative Measure No. 502. [This is the voter approved initiative that such to
decriminalize /legalize certain marijuana activities, providing for licensing and permitting under a
state law scheme for producers, processors and retailers of marijuana. This initiative did not
relate to medical marijuana, but to marijuana generally or as is often referred to, recreationally.]
(2) Sections 69.50.301 - 369 RCW. [These statutory provisions are the codification of
Initiative Measure No. 502.]
(3) Chapter 314 -55 WAC, regulations adopted by the Washington State Liquor Control
Board implementing Initiative 502. [Consistent with the language of Initiative Measure No. 502,
the Washington State Liquor Control Board was charged with developing regulations for the
marijuana activities - production, processing and retailing - to be licensed and permitted in
accordance with the initiative. These WAC provisions were the product of the Liquor Control
Board's regulatory efforts.]
(4) City of Auburn Resolution No. 4992, enacting initial moratorium. [This Resolution was
the initial resolution imposing a moratorium on marijuana related activities within the city of
Auburn, initially for one year with a work plan, which moratorium is consistent with the
authorization available to cities under RCW 35A.63.220.]
(5) Memorandum dated August 29, 2013 from U.S. Department of Justice, Office of the
Deputy Attorney General, regarding marijuana enforcement in states of Colorado and
Washington. [This memorandum identifies the proposition that even though the federal
Page 8
government is willing to hold off on prosecution of marijuana violations related to marijuana
activities licensed and permitted under state law, marijuana is still illegal under federal law and
the federal government does not give up its right to pursue prosecution of marijuana cases as it
deems fit.]
(6) Washington State Attorney General Opinion AGO 2014 No. 2. [This AGO gives the
opinion of the state Attorney General that cities do have the authority to determine whether or
not to permit marijuana activities within their jurisdictions notwithstanding state law - per the
initiative - that makes marijuana activities legal.]
(7) "White Paper on Marijuana Dispensaries," submitted by California Police Chiefs
Association Task Force on Marijuana Dispensaries (April 22, 2009).[Even though this white
paper actually deals with medical marijuana - not an issue in connection with Initiative 502, this
white paper does identify societal concerns regarding the use of marijuana.]
(8) Letter of April 29, 2011, from Governor Christine Gregoire to the Washington State
Senate regarding partial veto of Engrossed Second Substitute Senate Bill 5073. [This letter
explains the concern that Gov. Gregoire had, prompting her to veto portions of the medical
marijuana legislation approved by the legislature because she did not want to expose state
employees to possible prosecution for violation of federal law, since marijuana is still illegal
under federal law.]
(9) Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 LEd. 2d 1 (2005). [This case is a
United States Supreme Court case that upheld the authority of the federal government to
regulate marijuana as an illegal substance.]
(10) City of Riverside v. Inland Empire Patients Health and Welfare Center, 56 Cal. 4th 729
756, 300 P.3d 494 (2013). [This case, White Paper on Marijuana Dispensaries, identifies
societal concerns regarding the use of marijuana.]
(11) Controlled Substances Act (part) - 21 USC § 812. [This is the federal law that provides
that marijuana is illegal, and, further, finds that it has a potential for abuse, has no current
accepted medical use in treatment in the United States, and that there is a lack of accepted
safety for use of it under medical supervision.]
(12) Cannabis Action Coalition v. City of Kent, 322 P.3d 1246 (2014). [This is a recent State
Court of Appeals case in which the Court held that (1) amendments to the Medical Use of
Cannabis Act did not legalize medical marijuana or collective gardens; (2) the Governor's veto
message was the sole source of relevant legislative history to be considered in interpreting the
amendments that were enacted following her sectional veto; (3) cities were authorized to enact
zoning requirements to regulate or exclude collective gardens; and (4) Kent's ordinance did not
conflict with state law.]
If any of the commissioners wish to have copies or review any of these documents, please let
us know and the documents will be provided for access will be arranged.
Page 9
Note: As an aside, it should be recognized that even though it provided for significant tax
revenue to be collected (25% each) from producers, processors and retailers, Initiative 502 did
not provide any tax revenue to local governments, cities and counties, those entities that will be
responsible for contending with the problems of marijuana abuse either in the business setting
or in the potential for increased traffic impacts /impaired drivers.
F. Attachments
The following documents are attached hereto
(1) (Proposed Draft) Findings of Fact, Conclusions of Law and Recommendation to City
Council - Option 1: Prohibition of State Licensed Marijuana Uses. These are subject to the
Planning Commission's review and revision.
(2) (Proposed Draft) Findings of Fact, Conclusions of Law and Recommendation to City
Council — Option 2: Allowing for City Enforcement of State Licensed Marijuana Requirements
but without the City being the Permitting agency for Marijuana Uses. These are subject to the
Planning Commission's review and revision.
(3) (Proposed) Ordinance No. 6525, amending ACC 9.22.010 prohibiting marijuana
production, processing and retailing — Option 1.
(4) (Proposed) Ordinance No. 6525, amending ACC 1.04.060, 5.10.040, 9.22.010,
18.02.020, and 18.07.010 allowing the City to enforce compliance with state licensing of
marijuana activities (production, processing and retailing) but without the City being the
permitting agency — Option 2.
(5) Affidavit of Publication for Notice of Public Hearing, and Notice of Public Hearing Posted
on the City of Auburn Website
(6) Preliminary 1 -502 Zoning Map
Page 10
Attachment 1
PROPOSED PLANNING COMMISSION FINDINGS AND CONCLUSIONS AND
RECOMMENDATION — Option 1 — Prohibition of Marijuana [Ordinance No. 6525]
1. 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; and
2. 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
3. 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 State Liquor
Control Board ( "WSLCB ") for the production, processing and retailing of marijuana; and
4. The United States Congress passed the Comprehensive Drug Abuse
Prevention and Control Act of 1970, Pub.L. No. 91 -513, 84 Stat. 1236, creating a
comprehensive drug enforcement regime called the Controlled Substances Act, codified
Planning Commission Findings
July 24, 2014
Page 1 of 4
as 21 USC § 801 -971, 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; and
4. Under the Controlled Substances Act, marijuana is listed as a "Schedule I"
controlled substance in 21 USC § 812(c), Schedule I(c)(10); and
5. Under the Controlled Substances Act, it is unlawful to possess a controlled
substance, except as authorized under the Controlled Substances Act, and it is also
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 [federal] statute, and
6. Under the Controlled Substances Act, in order 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; and
7. In Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed. 2d 1 (2005),
the United States Supreme Court held 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
8. 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
Planning Commission Findings
July 24, 2014
Page 2 of 4
9. Article 11, § 11 of the Constitution of the State of Washington, the general
police powers granted to cities, empowers and authorizes the City of Auburn to adopt
regulations, land use and otherwise, that are not to be in conflict with general laws; and
10. One of the primary purposes of the Growth Management Act is to
empower cities planning under the Act to develop and adopt land use controls reflecting
the local needs of the community, and as provided in RCW 36.70A.010: "[i]t is in the
public interest that citizens, communities, local governments, and the private sector
cooperate and coordinate with one another in comprehensive land use planning ;" and
11. The Attorney General of the State of Washington and the City Attorney for
the City of Auburn have concluded that Initiative 502 does not preempt the City of
Auburn from exercising and administering its constitutional and statutory land use
regulatory authority to either allow and regulate land uses within the corporate limits of
the City, or to prohibit and ban such uses; and
12. The prohibition of marijuana production, processing and retailing as
defined by Initiative 502 and regulations promulgated thereunder is consistent with
federal law and not in conflict therewith; and
13. Documented secondary effects associated with analogous medical
marijuana dispensaries in other cities and counties include murders, robberies,
burglaries, drug dealing, sales to minors, loitering, heavy foot and vehicle traffic,
increased noise, odors, health hazards such as proliferation of molds; and
14. The prohibition of marijuana production, processing and retail uses within
the City of Auburn is the only effective means to protect residential districts, recreational
facilities, families and children within the City of Auburn; and
15. The prohibition of marijuana production, processing and retailing is subject
to the authority and general police power of the City to develop specific and appropriate
land use controls regarding such uses, and such amendments would not constitute
regulation of the individual use of marijuana as authorized by Initiative 502; and
Planning Commission Findings
July 24, 2014
Page 3 of 4
16. Section 9.22.010 of the Auburn City Code should be amended, as set
forth below, to prohibit within the City of Auburn marijuana production, processing and
retailing, as defined in Initiative 502 and its implementing regulations:
and
9.22.010 Marijuana prohibited.
A. Except as authorized under United States Code (USC) Title 21:
Controlled Substances Ac b the Revised Cede °f ` ashi ; it is unlawful for
any person or persons to grow, manufacture, process, deliver, grew, or possess
sell marijuana.
B. Except as authorized by the Revised Code of Washington, it is
unlawful for any person to possess marijuana.
C. "Marijuana,." also known as "marihuana" means all parts of the plant
Gf the g eRI—;16 ^ i&rCannabis sativa L., 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 ##e -such plant, its seeds
or resin, and includes all marijuana concentrates, useable marijuana, and
marijuana- infused products. 4-Such term does not include the mature stalks of
t4& -such plant, fiber produced from ##e -such stalks, oil or cake made from the
seeds of t4e-such plant, any other compound, manufacture, salt, derivative,
mixture, or preparation of ##e -such mature stalks (except the resin-S extracted
therefrom), fiber, oil, or cake, or the sterilized seed of #such plant which is
incapable of germination.
D. Violation of the provisions of this Section shall constitute a
misdemeanor, punishable by imprisonment in mail 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. 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. 6300 § 17 2010, Ord. 5682 § 17 2002.)
17. Such amendment is in the best interests of residents of the City of Auburn
and will promote the general health, safety and welfare.
18. The Moratorium implemented pursuant to City of Auburn Resolution No.
4992, passed on September 16, 2013, and extended by Resolution No. , passed
on , 2014, should terminate upon the date this Ordinance amending
the above code section is effective.
Planning Commission Findings
July 24, 2014
Page 4 of 4
PROPOSED PLANNING COMMISSION FINDINGS AND CONCLUSIONS AND
RECOMMENDATION — Option 2 — Enforcement of State Marijuana Regulations
Only[Ordinance No. 6525]
1. 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; and
2. 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
3. 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 State Liquor
Control Board ( "WSLCB ") for the production, processing and retailing of marijuana; and
4. The United States Congress passed the Comprehensive Drug Abuse
Prevention and Control Act of 1970, Pub.L. No. 91 -513, 84 Stat. 1236, creating a
Planning Commission Findings
July 24, 2014
Page 1 of 9
comprehensive drug enforcement regime called the Controlled Substances Act, codified
as 21 USC § 801 -971, 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; and
4. Under the Controlled Substances Act, marijuana is listed as a "Schedule I"
controlled substance in 21 USC § 812(c), Schedule I(c)(10); and
5. Under the Controlled Substances Act, it is unlawful to possess a controlled
substance, except as authorized under the Controlled Substances Act, and it is also
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 [federal] statute, and
6. Under the Controlled Substances Act, in order 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; and
7. In Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed. 2d 1 (2005),
the United States Supreme Court held 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
8. 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;
MT
Planning Commission Findings
July 24, 2014
Page 2 of 9
9. Article 11, § 11 of the Constitution of the State of Washington, the general
police powers granted to cities, empowers and authorizes the City of Auburn to adopt
regulations, land use and otherwise, that are not to be in conflict with general laws; and
10. One of the primary purposes of the Growth Management Act is to
empower cities planning under the Act to develop and adopt land use controls reflecting
the local needs of the community, and as provided in RCW 36.70A.010. "[i]t is in the
public interest that citizens, communities, local governments, and the private sector
cooperate and coordinate with one another in comprehensive land use planning ;" and
11. The Attorney General of the State of Washington and the City Attorney for
the City of Auburn have concluded that Initiative 502 does not preempt the City of
Auburn from exercising and administering its constitutional and statutory land use
regulatory authority to either allow and regulate land uses within the corporate limits of
the City, or to prohibit and ban such uses; and
12. City regulations licensing and permitting marijuana production, processing
and retailing as defined by Initiative 502 and regulations promulgated thereunder is not
consistent with federal law and is in conflict therewith; and
13. Documented secondary effects associated with analogous medical
marijuana dispensaries in other cities and counties include murders, robberies,
burglaries, drug dealing, sales to minors, loitering, heavy foot and vehicle traffic,
increased noise, odors, health hazards such as proliferation of molds; and
14. Consistent with the concerns the City could face if it were the agency
involved in licensing and permitting marijuana production, processing and retailing as
defined by Initiative 502 and regulations promulgated thereunder, when the Washington
state legislatures passed 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
Planning Commission Findings
July 24, 2014
Page 3 of 9
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; and
15. Because a majority of the voters of the City of Auburn voted in support of
Initiative 502, expressing support for legalization /decriminalization of marijuana
activities, 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
16. That 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
17. However, these concerns would be mitigated if the state of Washington
were the licensing and permitting agency, and if the state law and the accompanying
regulations promulgated by the WSLCB were fully enforced, thereby addressing the
issues and impacts that would be involved by licensing and permitting activities, with the
City of Auburn restricting its activity in connection with marijuana businesses to
enforcing and ensuring compliance with state law, without the City having to be the
licensing and permitting agency; and
18. Sections 1.04.060, 5.10.040, 9.22.010, 18.02.020 and 18.07.010 of the
Auburn City Code should be amended, as set forth below, to address marijuana
production, processing and retailing, within the City of Auburn:
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
deegdo 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.
Planning Commission Findings
July 24, 2014
Page 4 of 9
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.)
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 the
and
telephone number, and the business identification number issued by the state of
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, 3.847 3.887 5.207 5.307
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,
Planning Commission Findings
July 24, 2014
Page 5 of 9
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 § 27 1984.)
9.22.010 Marijuana prohibited.
A. Except as authorized under United States Code (USC) Title 21:
Controlled Substances Ac b the Revised Cede of ` ashi ; it is unlawful for
any person or persons to prow, manufacture, process, deliver, grew, or possess
sell marijuana.
B. Except as authorized by the Revised Code of Washington, it is
unlawful for any person to possess marijuana.
C. "Marijuana,." also known as "marihuana" means all parts of the plant
eTC'I"Ie g °mss sativa L., 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 such plant, its seeds
or resin, and includes all marijuana concentrates, useable marijuana, and
marijuana- infused products. 4-Such term does not include the mature stalks of
t4& -such plant, fiber produced from ##e -such stalks, oil or cake made from the
seeds of the-such plant, any other compound, manufacture, salt, derivative,
mixture, or preparation of ##e -such mature stalks (except the resina extracted
therefrom), fiber, oil, or cake, or the sterilized seed of 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 mail 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 § 17 2010; Ord. 5682 § 17 2002.)
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 36.70B RCW. In accordance with ACC 1.04.060.1;
aPA
Planning Commission Findings
July 24, 2014
Page 6 of 9
B AA-t -1AX0. hQt --;;A lYl/1 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 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 § 4, 2012; Ord. 6245 § 2,
2009.)
18.07.010 Intent.
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.
Planning Commission Findings
July 24, 2014
Page 7 of 9
MT
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
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.)
19. Such amendment is in the best interests of residents of the City of Auburn
and will promote the general health, safety and welfare.
Planning Commission Findings
July 24, 2014
Page 8 of 9
20. The Moratorium implemented pursuant to City of Auburn Resolution No.
4992, passed on September 16, 2013, and extended by Resolution No. , passed
on , 2014, should terminate upon the date this Ordinance amending
the above code sections is effective.
Planning Commission Findings
July 24, 2014
Page 9 of 9
Attachment 3
ORDINANCE NO. 6 5 2 5
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF AUBURN, WASHINGTON, AMENDING SECTION
9.22.010 OF THE AUBURN CITY CODE, PROHIBITING
PRODUCTION, PROCESSING AND /OR RETAIL OUTLETS
AND SALES OF MARIJUANA IN ALL ZONES OF THE
CITY, AND TERMINATING THE MORATORIUM
IMPLEMENTED PURSUANT TO RESOLUTION NO. 4992,
PASSED ON SEPTEMBER 16, 2013, AND EXTENDED BY
RESOLUTION NO. , PASSED ON
2014
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:
MT
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;
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
State Liquor Control Board ( "WSLCB ") for the production, processing and retailing of
marijuana; and
----------------------------
Ordinance No. 6525
July 24, 2014
Page 1 of 7
WHEREAS, the United States Congress passed the Comprehensive Drug Abuse
Prevention and Control Act of 1970, Pub.L. No. 91 -513, 84 Stat. 1236, 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
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 USC § 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
Ordinance No. 6525
July 24, 2014
Page 2 of 7
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:
and
(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;
WHEREAS, pursuant to Article 11, § 11 of the Constitution of the State of
Washington, the general police powers granted to cities, the City of Auburn is
empowered and authorized to adopt land use controls to provide for the regulation of
land uses within the City, which regulations are not to be in conflict with general laws.;
and
WHEREAS, one of the primary purposes of the Growth Management Act is to
empower cities planning under the Act to develop and adopt land use controls reflecting
the local needs of the community, and as provided in RCW 36.70A.010: "[i]t is in the
public interest that citizens, communities, local governments, and the private sector
cooperate and coordinate with one another in comprehensive land use planning ;" and
WHEREAS, the City Council finds and determines that Initiative 502 does not
preempt the City of Auburn from exercising and administering its constitutional and
statutory land use regulatory authority to either allow and regulate land uses within the
corporate limits of the City, or to prohibit and ban such uses; and
WHEREAS, the City Council finds and determines that the prohibition of
marijuana production, processing and retailing as defined by Initiative 502 and
regulations promulgated thereunder is consistent with federal law and not in conflict
therewith; and
Ordinance No. 6525
July 24, 2014
Page 3 of 7
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,
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 Cal. 4th 7297 7567 300 P.3d 494 (2013)]; and
WHEREAS, the City Council finds and determines that the prohibition of
marijuana production, processing and retail uses within the City of Auburn is the only
effective means to protect residential districts, recreational facilities, families and
children within the City of Auburn; and
WHEREAS, the City Council of the City of Auburn finds and determines that
Section 9.22.010 of the Auburn City Code should be amended to prohibit marijuana
production, processing and retailing, as defined in Initiative 502 and its implementing
regulations, within the City of Auburn; and
WHEREAS, the City Council finds and determines that the prohibition of
marijuana production, processing and retailing is subject to the authority and general
police power of the City to develop specific and appropriate land use controls regarding
such uses, and the City Council reserves its powers and authority to appropriately
amend, modify and revise such prohibition to implement such land use controls in
accordance with applicable law; and
WHEREAS, the City Council finds and determines that such amendments
authorized herein are not intended to regulate the individual use of marijuana as
authorized by Initiative 502 ; 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
Ordinance No. 6525
July 24, 2014
Page 4 of 7
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, 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 residents of the City of Auburn and will promote
the general health, safety and welfare.
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 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:
Controlled Substances Ag by the Revised Gede °f `"Iashi. ,gc^v,�7 it is unlawful for
any person or persons to grow, manufacture, process, deliver, grew, or possess
sell marijuana.
B. Except as authorized by the Revised Code of Washington, it is
unlawful for any person to possess marijuana.
C. "Marijuana,." also known as "marihuana" means all parts of the plant
9f the g eRI_;16 ^ i&rCannabis sativa L., 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 #4e-such plant, its seeds
Ordinance No. 6525
July 24, 2014
Page 5 of 7
or resin, and includes all marijuana concentrates, useable marijuana, and
marijuana- infused products. 4-Such term does not include the mature stalks of
t4& -such plant, fiber produced from ##e -such stalks, oil or cake made from the
seeds of the-such plant, any other compound, manufacture, salt, derivative,
mixture, or preparation of such mature stalks (except the resin-S extracted
therefrom), fiber, oil, or cake, or the sterilized seed of #such plant which is
incapable of germination.
D. Violation of the provisions of this Section shall constitute a
misdemeanor, punishable by imprisonment in mail 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. 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. 6300 § 1, 2010, Ord. 5682 § 1, 2002.)
Section 3. Termination of Moratorium. The Moratorium implemented pursuant
to City of Auburn Resolution No. 4992, passed on September 16, 2013, and extended
by Resolution No. , passed on , 2014, shall terminate upon the
date this Ordinance becomes effective in accordance with the provisions of Section 6
ITaM
Section 4. Implementation. The Mayor is hereby authorized to implement
such administrative procedures as may be necessary to carry out the directions of this
legislation.
Section 5. Severability. The provisions of this ordinance are declared to be
separate and severable. The invalidity of any clause, sentence, paragraph, subdivision,
section or portion of this ordinance, or the invalidity of the application thereof to any
person or circumstance shall not affect the validity of the remainder of this ordinance, or
the validity of its application to other persons or circumstances.
Section 6. 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.
Ordinance No. 6525
July 24, 2014
Page 6 of 7
INTRODUCED-
PASSED-
APPROVED-
NANCY BACKUS, MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
APPROVED AS TO FORM:
Daniel B. Heid, City Attorney
PUBLISHED:
Ordinance No. 6525
July 24, 2014
Page 7 of 7
Attachment 4
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, AND EXTENDED BY RESOLUTION NO.
PASSED ON , 2014
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:
MT
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;
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
July 29, 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. 1236], 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
July 29, 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.
and
(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;
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
July 29, 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, 7567 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
July 29, 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
July 29, 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
deegdo 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 the
and
Ordinance No. 6525
July 29, 2014
Page 6 of 11
telephone number, and the business identification number issued by the state of
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, 3.847 3.887 5.207 5.307
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 § 37 2005; Ord. 5814 § 27 2004; Ord. 5754 § 17 2003; Ord.
4012 § 27 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:
Controlled Substances Ac b the Revised Cede of ` ashi ; it is unlawful for
any person or persons to prow, manufacture, process, deliver, grew, or possess
sell marijuana.
B. Except as authorized by the Revised Code of Washington, it is
unlawful for any person to possess marijuana.
C. "Marijuana,." also known as "marihuana" means all parts of the plant
eTC'I"Ie g eRI-16 sativa L., 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 ##e -such plant, its seeds
or resin, and includes all marijuana concentrates, useable marijuana, and
marijuana- infused products. 4-Such term does not include the mature stalks of
such plant, fiber produced from such stalks, oil or cake made from the
seeds of the-such plant, any other compound, manufacture, salt, derivative,
Ordinance No. 6525
July 29, 2014
Page 7 of 11
mixture, or preparation of ##e -such mature stalks (except the resina extracted
therefrom), fiber, oil, or cake, or the sterilized seed of #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 mail 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 36.70B RCW. In accordance with ACC 1.04.060_1;
apId
B. nA+,y0.thst-AR 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 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
Ordinance No. 6525
July 29, 2014
Page 8 of 11
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 § 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 Intent.
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
Ordinance No. 6525
July 29, 2014
Page 9 of 11
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
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, and extended
by Resolution No. , passed on
, 2014, shall terminate upon the
date this Ordinance becomes effective in accordance with the provisions of Section 9
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.
Ordinance No. 6525
July 29, 2014
Page 10 of 11
Section 9. Severability. The provisions of this ordinance are declared to be
separate and severable. The invalidity of any clause, sentence, paragraph, subdivision,
section or portion of this ordinance, or the invalidity of the application thereof to any
person or circumstance shall not affect the validity of the remainder of this ordinance, or
the validity of its application to other persons or circumstances.
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-
PASSED-
APPROVED-
NANCY BACKUS, MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
APPROVED AS TO FORM:
Daniel B. Heid, City Attorney
PUBLISHED:
Ordinance No. 6525
July 29, 2014
Page 11 of 11
Attachment 5
City of Auburn, Finance Dept
City Clerk
25 W Main St
Auburn, WA 98001
Re: Advertiser Account # 107302
Ad #: 455499
STATE OF WASHINGTON
Counties of King and Snohomish
The undersigned, on oath states that he /she is an authorized
representative of The Seattle Times Company,
publisher of The Seattle Times of general circulation
published daily in King and Snohomish Counties, State
of Washington. The Seattle Times has been approved as a
legal newspaper by others of the Superior Court of King and
Snohomish Counties.
The notice, in the exact form annexed, was published in the
regular and entire issue of said paper or papers and distrib-
uted to its subscribers during all of the said period.
Agency Account #: 0
Agency Name:
TI e
Signature 40n
,
Subscribed and sworn to before me on
igza;iur) Notary Public in an for he State
�v' 'fy Cyl�,.
! DATF�
Oa 11VJ 36��auP�
of Washington, residing at Seattle
Re: Advertiser Account # 107302
Agency Account #: 0
AD TEXT
OF
City of Auburn
Notice of Public Hearing
nning Commission of the
URN, Washington, will con
taring on August 6, 2014, 1
rn city
•eet on
tuber:
ationai marijuana uses in me t-itY, i ne
public hearing will be held in the Council
Chambers, Auburn City Hall, located at 25
West Main Street. The public Is invited to
attend to express comments or opinions.
Written comments may be submitted up
until and at the public hearing, If You have
further comments or questions, please
contact Davd Jones, Senior Planner at
dl'oness @-ubur we.aov or 253. 804.5031,
For zens with speech, sight or hearing
disabilities wishing to review documents
pertaining to this hearing, should contact
the City of Auburn within 10 calendar days
prior to the meeting, as to the type of ser-
vice or equipment needed. Each request
will be considered Individually according
to the type of request, the availability of
resources, and the financial ability of the
city to provide the requested services or
equipment,
Ad #: 455499
Agency Name:
City of Auburn
Notice of Planning Comission Public Hearing
The Planning Commission of the CITY OF AUBURN, Washington, will conduct a public hearing
on August 6, 2014, at 7:00 P.M. in the Council Chambers of the Auburn City Hall located at 25
West Main Street on the following matter:
Case Number: ZOA14 -0003 —Review proposed draft language amendments to the following
Auburn City Code (ACC) sections: 9.22.010,1.04.060, 5.10.040, and 18.02.020, as part of the
continued review of options for regulating 1 -502 state licensed Recreational Marijuana uses in
the City.
The public hearing will be held in the Council Chambers, Auburn City Hall, located at 25 West
Main Street. The public is invited to attend to express comments or opinions. Written comments
may be submitted up until and at the public hearing. If you have further comments or questions,
please contact Davd Jones, Senior Planner at dljones @auburnwa.gov or 253 - 804 -5031.
For citizens with speech, sight or hearing disabilities wishing to review documents pertaining to
this hearing, should contact the City of Auburn within 10 calendar days prior to the meeting, as
to the type of service or equipment needed. Each request will be considered individually
according to the type of request, the availability of resources, and the financial ability of the City
to provide the requested services or equipment.
Attachment 6
Potential State Licensed Lc,�ations for Cannabis Uses ��Y"� - ' .
(After 1,000 foot Buffer Requirement) AUBURN
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