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