HomeMy WebLinkAbout01/17/2012 06 Medical Marijuana Dispensaries and Collective Gardens; YMC Addition Section 15.01.035 ` l y
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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
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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
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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.
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PASSED BY THE CITY COUNCIL, signed and approved this 17 day of January, 2012.
ATTEST: Micah Cawley, Mayor
City Clerk
Publication Date:
Effective Date:
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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).
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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.
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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.
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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.
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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,
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} 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
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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
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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