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01/17/2012 06 Medical Marijuana Dispensaries and Collective Gardens; YMC Addition Section 15.01.035 ` l y � t i � �y5 �� �' »�� ai i^ } f BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT /,, Item No. K/ For Meeting of January 17, 2012 ITEM TITLE: Closed Record Public Hearing to consider an Ordinance regarding Medical Marijuana Facilities and Collective Gardens SUBMITTED BY: Mark Kunkler, Senior Assistant City Attorney Joan Davenport, Planning Manager CONTACT Mark Kunkler, Senior Assistant City Attorney (575 -3552) PERSON /TELEPHONE: SUMMARY EXPLANATION: The Yakima City Council on July 19, 2011 enacted Ordinance 2011 -34 which imposed a 6 -month moratorium on the processing of any application, permit or approval of land use for dispensaries and "collective gardens" of cannabis for medical purposes. This proposed amendment to the Yakima Municipal Code clarifies that "No use that is illegal under local, state or federal law shall be allowed in any zone within the city " An additional ordinance will be presented to the Council at a future time which establishes the land use regulations for collective gardens, pending SEPA process review. The Yakima City Planning Commission held a public hearing on December 14, 2011 to consider testimony regarding this recommendation. Resolution Ordinance X Other (specify) Contract: Mail to: Contract Term: Amount: Expiration Date: Insurance Required? No Funding Source: Phone: APPROVED FOR City Manager SUBMITTAL: . STAFF RECOMMENDATION: Approve the Ordinance BOARD /COMMISSION RECOMMENDATION: The Planning Commission recommends approval of the ordinance to amend the Yakima Municipal Code ATTACHMENTS: Click to download ❑ Ordinance Amending YMC 15 for illegal uses and Medical Marijuana Collective Gardens ❑ Planning Commission Findings ❑ complete record ORDINANCE NO. 2012- AN ORDINANCE amending Title 15 of the Yakima Municipal Code to add new Section 15.01.035 providing that no use that is illegal under local, state or federal law shall be allowed in any zone of the city, and applying such regulation to medical marijuana dispensaries and collective gardens. WHEREAS, in 1998, the voters of the State of Washington approved Initiative Measure No. 692, now codified as Chapter 69.51A RCW, entitled the Medical Use of Marijuana Act, which created an affirmative defense to state criminal liability for seriously ill persons who are in need of medical marijuana for specified medical purposes and who obtain and use medical marijuana under limited, specified circumstances, and WHEREAS, the legislature adopted E2SSB 5073, with certain provisions vetoed by the governor, which became effective July 22, 2011, which enacted provisions authorizing establishment and operation of "collective gardens" for medical marijuana purposes subject to land use powers of municipalities within the State of Washington; and WHEREAS, Chapter 69.51A RCW, as amended by E2SSB 5073, recognizes the authority and ability of municipalities to regulate medical marijuana within their jurisdictions and to adopt comprehensive land use regulations and licensing regulations concerning the establishment and operation of medical marijuana uses and facilities within such jurisdictions; and WHEREAS, Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91 -513, 84 Stat. 1236, to create a comprehensive drug enforcement regime it called the Controlled Substances Act, 21 U.S.C. § 801 -971. Under the Controlled Substances Act (also "CSA "), Congress established five "schedules" of controlled substances. 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 U.S.C. § 812(b); and WHEREAS, marijuana is currently listed as a "Schedule I" controlled substance, 21 U.S.C. § 812(c), Schedule I(c)(10). For a substance to be designated a Schedule I controlled substance, it must be found: (1) that the substance "has a high potential for abuse "; (2) that the substance "has no currently accepted medical use in treatment in the United States "; and (3) that "[t]here is a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1). The Controlled Substances Act sets forth procedures by which the schedules may be modified. See 21 U.S.C. § 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 1 otherwise provided in the statute. 21 U.S.C. § 841(a)(1). Possession of a controlled substance, except as authorized under the Controlled Substances Act, is also unlawful; and WHEREAS, the United States Supreme Court has 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, court decisions in other jurisdictions have held that local legislation authorizing conduct and uses in violation of the federal Controlled Substances Act are in conflict with such federal legislation and thus preempted by the federal law (cf., Pack v. Superior Court, 199 Cal.App.4th 1070, 11 Cal.Daily Op. Serv.12,643, Cal.Rptr.3d (October 4, 2011); Emerald Steel Fabricators v. Bureau of Labor and Industries, 348 Or. 159, 230 P.3d 518 (2010)); and WHEREAS, Section 1102 of E2SSB 5073 specifically authorizes municipalities of the State of Washington to adopt and enforce zoning requirements regarding the production, processing and dispensing of cannabis or cannabis products within their jurisdictions, and WHEREAS, the general police powers of the City of Yakima empower and authorize the City of Yakima 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 of the City of Yakima finds and determines that Title 15 of the Yakima Municipal Code should be amended to add new section 15.01.035 providing that no use that is illegal under local, state or federal law shall be allowed in any zone within the city, and that such amendment specifically applies to prohibit dispensaries of cannabis and collective gardens for the production, distribution and /or dispensing of cannabis for medical uses, all as specifically defined in Chapter 69.51A RCW and E2SSB 5073, Laws of 2011 of the State of Washington; and WHEREAS, the City Council finds and determines that the prohibition of dispensaries of cannabis and collective gardens for the production, distribution and /or dispensing of cannabis for medical purposes 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 cannabis for medical purposes by qualifying patients and designated providers as authorized pursuant to Chapter 69.51A RCW; and WHEREAS, the Planning Commission has held and conducted an open record public hearing on December 14, 2011, all pursuant to notice and applicable procedures of the City of Yakima, and has adopted findings of fact and 2 conclusions of law in support of its recommendation for adoption of the above - described amendments, which Findings of Fact and Conclusions of Law are attached hereto as Exhibit "A" and incorporated herein by this reference; and WHEREAS, the City Council has held and conducted a closed record public hearing on January 17, 2012 and 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 Yakima and will promote the general health, safety and welfare, BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. The City Council hereby adopts as its own, and approves, the Findings of Fact, Conclusions of Law and Recommendation of the Planning Commission adopted by the Planning Commission following its public hearing on December 14, 2011, all as set forth in Exhibit "A" attached hereto. Section 2. Chapter 15.01 of the Yakima Municipal Code is hereby amended to add new section 15.01.035 which provides as follows: 15.01.035 Illegal Uses Prohibited. A. General. No use that is illegal under local, state or federal law shall be allowed in any zone within the city. B. Specific Application — Medical Marijuana Dispensaries and Collective Gardens. Until such time that this code is amended to provide specific provisions and land use controls allowing and regulating dispensaries of cannabis and /or collective gardens for the production, distribution and dispensing of cannabis for medical uses, all as further defined and set forth in Chapter 69.51A RCW and E2SSB 5073, Laws of 2011 of the State of Washington, such uses are not allowed in any zone within the city. For purposes of this section, "dispensary" means any person, entity, site, location, facility, business, cooperative, collective, whether for profit or not for profit, that distributes, sells, dispenses, transmits, packages, measures, labels, selects, processes, delivers, exchanges or gives away cannabis for medicinal or other purposes. Section 3. Except as amended herein, Title 15 of the Yakima Municipal Code shall remain unchanged. Section 4. This ordinance shall be in full force and effect 30 days after its passage, approval, and publication as provided by law and by the City Charter. 3 PASSED BY THE CITY COUNCIL, signed and approved this 17 day of January, 2012. ATTEST: Micah Cawley, Mayor City Clerk Publication Date: Effective Date: 4 EXHIBIT "A" BEFORE THE PLANNING COMMISSION OF THE CITY OF YAKIMA In the matter of: ) ) Public Hearing: December 14, 2011 Proposed Regulation of Medical ) Marijuana Dispensaries and ) FINDINGS OF FACT, CONCLUSIONS Collective Gardens ) OF LAW, AND RECOMMENDATION ) THIS MATTER, having come before the Planning Commission of the City of Yakima (hereafter "Planning Commission ") upon public hearing on December 14, 2011, and the Planning Commission having considered the record herein and all evidence and testimony presented, hereby makes the following FINDINGS OF FACT 1. A public hearing was held before the Planning Commission on December 14, 2011 pursuant to notice duly published, all in accordance with applicable procedures of the Yakima Municipal Code and state law. 2. No objection was made to any member of the Planning Commission hearing and deciding all issues in this matter. 3. In 1998, the voters of the State of Washington approved Initiative Measure No. 692, now codified as Chapter 69.51A RCW, entitled the Medical Use of Marijuana Act, which created an affirmative defense to state criminal liability for seriously ill persons who are in need of medical marijuana for specified medical purposes and who obtain and use medical marijuana under limited, specified circumstances. 4. The state legislature adopted E2SSB 5073, with certain provisions vetoed by the governor, which became effective July 22, 2011, which enacted provisions authorizing establishment and operation of "collective gardens" for medical marijuana purposes subject to land use powers of municipalities within the State of Washington. Governor Christine Gregoire vetoed the provisions of E2SSB 5073 that provided for establishment, and regulation by the state, of "dispensaries" for cannabis to be used for medical purposes. 5. Chapter 69.51A RCW, as amended by E2SSB 5073, recognizes the authority and ability of municipalities to regulate medical marijuana within their jurisdictions and to adopt comprehensive land use regulations and licensing regulations concerning the establishment and operation of medical marijuana uses and facilities within such jurisdictions (Section 1102, E2SSB 5073). 1 6. The United States Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91- 513, 84 Stat. 1236, to create a comprehensive drug enforcement regime it called the Controlled Substances Act, 21 U.S.C. § 801 -971. Under the Controlled Substances Act (also "CSA "), Congress established five "schedules" of controlled substances. 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 U.S.C. § 812(b). Marijuana is currently listed as a "Schedule I" controlled substance, 21 U.S.C. § 812(c), Schedule 1(c)(10). For a substance to be designated a Schedule I controlled substance, it must be found: (1) that the substance "has a high potential for abuse "; (2) that the substance "has no currently accepted medical use in treatment in the United States "; and (3) that "[t]here is a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1). The Controlled Substances Act sets forth procedures by which the schedules may be modified. See 21 U.S.C. § 811(a). 7. 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). Possession of a controlled substance, except as authorized under the Controlled Substances Act, is also unlawful. 8. The United States Supreme Court has 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. 9. Court decisions in other jurisdictions have held that local legislation authorizing conduct and uses in violation of the federal Controlled Substances Act are in conflict with such federal legislation and thus preempted by the federal law (cf., Pack v. Superior Court, 199 Cal.App.4th 1070, 11 Cal.Daily Op. Serv.12,643, Cal.Rptr.3d _ (October 4, 2011); Emerald Steel Fabricators v. Bureau of Labor and Industries, 348 Or. 159, 230 P.3d 518 (2010)). 10. Section 1102 of E2SSB 5073 specifically authorizes municipalities of the State of Washington to adopt and enforce zoning requirements regarding the production, processing and dispensing of cannabis or cannabis products within their jurisdictions; and the general police powers of the City of Yakima empower and authorize the City of Yakima 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. 2 11. The Planning Commission finds that secondary effects arising from the operation of medical marijuana dispensaries and collective gardens have been identified and documented by other jurisdictions, including but not limited to, the White Paper on Marijuana Dispensaries, California Police Chiefs Association's Task Force on Marijuana Dispensaries (April 22, 2009). Such identified and documented secondary effects include: incidents of murder and burglary; traffic, noise and drug dealing; organized crime, money laundering and firearms violations; poisonings; unjustified and fictitious physician recommendations; proliferation of grow houses in residential areas; creation of fire safety hazards and building code violations associated with grow operations; increased criminal gang activities; secondary sales of marijuana outside dispensaries; increased exposure of marijuana to juveniles; impaired public health; loss of business tax revenue; decreased quality of life in residential and business districts. The secondary effects identified in such study are effects that the Planning Commission finds are likely to occur in the City of Yakima arising out of medical marijuana dispensaries and unregulated collective gardens. 12. The Planning Commission of the City of Yakima finds and determines that Title 15 of the Yakima Municipal Code should be amended as set forth in Exhibit UA" attached hereto and incorporated herein by this reference, to add new section 15.01.035 providing that no use that is illegal under local, state or federal law shall be allowed in any zone within the city, and that such amendment specifically applies to prohibit dispensaries of cannabis and collective gardens for the production, distribution and/or dispensing of cannabis for medical uses, all as specifically defined in Chapter 69.51A RCW and E2SSB 5073, Laws of 2011 of the State of Washington. 13. The Planning Commission also finds and determines that the proposed amendment described above should provide that such prohibition of dispensaries and /or collective gardens may be modified to authorize land use regulation of such uses in accordance with subsequent adoption of municipal code provisions, by the City Council, consisting of comprehensive land use regulations pertaining to such uses, and that any authorization of such uses shall commence upon (a) City Council adoption of such municipal code provisions and (b) final determination by published decision of a State of Washington court of appellate jurisdiction, or federal court with jurisdiction, and /or legislative enactment establishing that implementation of such regulatory controls is lawful and not preempted by applicable state or federal law. 14. The Planning Commission finds and determines that the proposed amendment as set forth in Exhibit "A" does not regulate, and is not intended to regulate, individual use of cannabis for medical purposes as authorized pursuant to Chapter 69.51A RCW and E2SSB 5073, which use shall be subject to the provisions of such state statutes and enactments. 3 15. Any Finding of Fact, or portion thereof, hereafter determined by a court of competent jurisdiction to be a Conclusion of Law shall be construed as a Conclusion of Law without derogation of any other Finding of Fact. Having made the above Findings of Fact, the Planning Commission makes the following CONCLUSIONS OF LAW 16. The Planning Commission has jurisdiction to receive all evidence and testimony in this matter, and to make these Findings of Fact, Conclusions of Law and Recommendation concerning all issues herein. 17. There being no objection to any member of the Planning Commission proceeding to hear and consider all matters herein, any and all objections arising or alleged to arise out of the appearance of fairness doctrine or provisions related to conflict of interest are hereby deemed waived. 18. All procedural requirements pertaining to notice, scheduling and conducting the public hearing have been met and are satisfied. 19. All procedural requirements pertaining to amendment of Title 15 of the Yakima Municipal Code have been met and are satisfied. { 20. The proposed legislation as set forth in Exhibit "A" attached hereto consists of a proposal to adopt legislation by ordinance relating solely to governmental procedures and contains no substantive standards respecting use or modification of the environment, and is therefore categorically exempt from threshold determination and EIS requirements under the State Environmental Policy Act (SEPA) pursuant to WAC 197- 11- 800(19). 21. The adoption of the proposed legislation as set forth in Exhibit "A" constitutes an exercise of the general police and regulatory powers of the city as authorized by, but not limited to: Washington State Constitution Article XI, Section 11; Chapter 35.22 RCW, and RCW 35.22.195; Charter of the City of Yakima, Article I; and the Yakima Municipal Code. 22. The exercise of the city's general police and regulatory power to adopt the proposed legislation is specifically authorized by and consistent with Chapter 69.51A RCW, as amended by E2SSB 5073, Section 1102, Laws of 2011, State of Washington. 4 23. The adoption of the proposed legislation is not in conflict with, nor preempted by, the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91 - 513, 84 Stat. 1236, or the Controlled Substances Act, 21 U.S.C. § 801 -971. 24. The adoption of the proposed legislation constitutes a land use control rationally and reasonably related to control documented secondary effects arising from unregulated medical marijuana dispensaries and collective gardens. The city is entitled to rely on facts, reports and studies of prepared by other jurisdictions when analyzing secondary effects associate with medical marijuana. See, e.g., City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 106 S.Ct. 925 (1986). 25. Under the current application of federal law prohibiting the production, dispensing, possession and use of cannabis, and the provisions of state law decriminalizing production, possession and use of cannabis for medical purposes as authorized by Chapter 69.51A RCW and amended by E2SSB 5073, no clear precedential decisions of any court with jurisdiction have been issued, nor state legislation passed, addressing the conflict between applicable federal law and state law decriminalizing edical use, k } possession and production of cannabis. in the absence of such clarification, the city is at risk of being found to have aided and /or abetted a violation of applicable federal law by adopting and implementing any regulatory scheme that could be construed to constitute an "authorization" of conduct in violation of federal law. The adoption of the proposed legislation constitutes an exercise of the city's general police powers to prohibit any such medical marijuana dispensary and collective garden use in any zone of the city, thereby adopting local regulation not in conflict with either state or applicable federal law. In the event any court of competent jurisdiction issues a decision with precedential effect for courts of the State of Washington, or in the event subsequent legislation is passed, removing any conflict between federal and state law, the city has authority under its general police and regulatory powers to adopt subsequent legislation to impose and implement appropriate controls for the regulation of medical marijuana dispensaries and /or collective gardens. 26. The Planning Commission concludes that the adoption of the proposed legislation attached hereto as Exhibit "A" will prohibit only "dispensaries" and "collective gardens" of and for medical marijuana within the City of Yakima, and will not prohibit the individual use, possession or production of marijuana for medical purposes, all in accordance with and subject to the provisions and restrictions of Chapter 69.51A RCW, as amended by E2SSB 5073. 27. Any Conclusion of Law, or portion thereof, hereafter determined by a court of competent jurisdiction to be a Finding of Fact shall be construed as a Finding of Fact without derogation of any other Conclusion of Law. Having made the above Findings of Fact and Conclusions of Law, the Planning Commission hereby renders its 5 RECOMMENDATION TO CITY COUNCIL The Planning Commission of the City of Yakima, having received and considered all evidence and testimony presented at public hearing, and having received and reviewed the record herein, hereby recommends that the City Council of the City of Yakima APPROVE the proposed legislation attached hereto as Exhibit "A." ADOPTED AND APPROVED this day of December, 2011, By /f � - _ _ - /gen Shoval, Chair 5 l 6 City of Yakima Planning Commission Open Record Public Hearing December 14, 2011 TABLE OF CONTENTS DOC INDEX # DOCUMENT TITLE Memorandum — Medical Marijuana Public Hearing (December 14, 2011) — Record 1. Proposed Ordinance 2. Proposed Findings of Fact, Conclusions of Law and Recommendation (attached as Exhibit "A" to the Proposed Ordinance) 3. Notice of Public Hearing, Yakima Planning Commission, December 14, 2011 4. Copy of E2SSB 5073, Laws of 2011, State of Washington, with Governor's Veto Message 5. Washington State Medical Use of Marijuana Act, Chapter 69.51A RCW 6. April 14, 2011 Letter from U.S. Attorneys, Western and Eastern Districts of Washington, to Governor Christine Gregoire 7. June 29, 2011 Memorandum from James M. Cole, Deputy Attorney General, to U.S. Attorneys regarding enforcement of federal marijuana laws 8. "Ogden Memorandum," Attorney General's Office, October 19, 2009 9. Copy of Gonzalez v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed. 2d 1 (2005) 10. Copy of Raich v. Gonzalez, 500 F.3d 850 (9 Cir. 2007) 11. Copy of Pack v. Superior Court, 199 Cal.App.4th 1070, 11 Cal.Daily Op. Serv.12,643, Cal.Rptr.3d (October 4, 2011) 12. Copy of Emerald Steel Fabricators v. Bureau of Labor and Industries, 348 Or. 159, 230 P.3d 518 (2010) 13. Copy of City of Riverside v. Inland Empire Patient's Health and Wellness Center, Cal.Rptr.3d , 11 Cal. Daily Op. Serv. 13,799 (November 9, 2011) 14. Copy of City of Yakima Ordinance No. 2011 -34, adopting moratorium re: medical marijuana 15. City of Yakima Resolution No. 2011 -129 adopting findings of fact supporting moratorium implemented per Ordinance No. 2011 -34. 16. August 5, 2011 Memorandum from Legal Department to City Council regarding proposed Resolution No. 2011 -129 17. "White Paper on Marijuana Dispensaries," California Police Chiefs Association's Task Force on Marijuana Dispensaries (April 22, 2009) 18. Zoning Practice, "Medical Marijuana" (Issue No. 7, July 2011) 19. "Update: Medical Cannabis," Scott W. Snyder, Municipal Research and Services Center of Washington (Summer 2011) 20. "Medical Marijuana," Association of Washington Cities (July 2011) 21. Copy of Press Release, November 30, 2011, from Governor Christine Gregoire, Governor of the State of Washington