HomeMy WebLinkAbout11/05/2013 11 Moratorium on Production, Processing and Retailing of Marijuana; Findings of FactBUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting of: 11/5/2013
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ITEM TITLE: Public hearing to consider a resolution adopting findings of
fact and approving moratorium on production, processing and
retailing of marijuana as adopted pursuant to Ordinance No.
2013-048.
SUBMITTED BY: Mark Kunkler, Senior Assistant City Attorney, Legal
Department
Steve Osguthorpe, AICP, Community Development Director,
(509) 575-3533
SUMMARY EXPLANATION:
On October 8, 2013, the City Council adopted Ordinance No. 2013-048 imposing a moratorium
through May 6, 2014 prohibiting issuance of land use permits for marijuana production,
processing and retail facilities within the City of Yakima. Pursuant to state law governing
moratoria, a public hearing must be held within 60 days of adoption of a moratorium to receive
public comment regarding the moratorium, and to consider whether such moratorium should
remain in place as adopted, or be modified in scope or duration. At the conclusion of the public
hearing, the City Council must adopt findings of fact supporting its decision.
The public hearing has been scheduled for November 5, 2013. Included within this item is a
proposed resolution stating findings of fact in support of the moratorium as originally adopted.
The resolution and proposed findings can be modified by the City Council as it sees fit following
the public hearing. If the City Council decides to retain the moratorium as originally adopted, the
resolution can be adopted without modification.
Resolution: X
Other (Specify):
Contract: Contract Term:
Start Date: End Date:
Amount:
Ordinance:
Item Budgeted:
Funding Source/Fiscal
Impact:
Strategic Priority: Improve the Built Environment
Insurance Required? No
Mail to:
Phone:
APPROVED FOR
SUBMITTAL:
RECOMMENDATION:
City Manager
Staff recommends approval and adoption of the Resolution, with findings of fact included.
ATTACHMENTS:
Description Upload Date Type
Proposed Resolution 10/23/2013 Resonution
Ordinance 2013-048 imposing moratorium 10/23/2013 IBactlIcup Materna°
Memo to Council re: marijuana 10.02.2013 10/23/2013 IBactlIcup Materna°
RESOLUTION NO. R -2013-
A RESOLUTION adopting Findings of Fact supporting a six-month moratorium, enacted
October 8, 2013 pursuant to Ordinance No. 2013-048, prohibiting
acceptance and processing of applications, and issuance of land use and
development permits for, production, processing and retailing of marijuana
as authorized pursuant to Initiative 502; and authorizing the City Manager
to study and develop appropriate comprehensive land use regulations
addressing such issues for consideration by the City Council; and setting
public hearing on November 5, 2013.
WHEREAS, pursuant to RCW 36.70A.390 and RCW 35.63.200, the City Council of the
City of Yakima on October 8, 2013 adopted Ordinance No. 2013-048 imposing a moratorium for
six months prohibiting acceptance and processing of applications, and issuance of land use and
development permits for, production, processing and retailing of marijuana as authorized
pursuant to Initiative 502; and authorizing the City Manager to study and develop appropriate
comprehensive land use regulations addressing such issues for consideration by the City
Council; and
WHEREAS, RCW 36.70A.390 and RCW 35.63.200 require the City Council to hold a
public hearing within sixty days after imposition of a moratorium to receive evidence and
testimony regarding imposition of the moratorium, to consider whether such moratorium should
be modified or continue in effect as originally adopted, and to adopt findings of fact supporting
such decision; and
WHEREAS, the City Council has held the required public hearing on November 5, 2013
pursuant to notice duly published, and having considered all evidence and testimony presented
and the record herein, hereby makes the following:
Findings of Fact
1. The City Council of the City of Yakima has authority pursuant to RCW 36.70A.390
and RCW 35.63.200 to adopt a moratorium to preserve the status quo pending
development of comprehensive land use controls, regulations and procedures
concerning marijuana, all as authorized by Initiative 502 and regulations
implementing the provisions of such Initiative ("Initiative 502" or the "Initiative").
1
2. The Initiative, which was approved by voters of Washington State on November 6,
2012, authorized the Washington State Liquor Control Board ("WSLCB") to adopt
regulations and begin implementation of the Initiative and such regulations by
December 1, 2013, and to thereafter issue licenses for marijuana production,
processing and retailing. The WSLCB has adopted such regulations on or about
October 16, 2013, which will become effective on November 18, 2013. The WSLCB
is therefore in position to begin review of applications and issuance of licenses for
marijuana production, processing and retailing on and after December 1, 2013.
3. The Initiative and regulations implementing such law state prohibit location of
licensed marijuana production, processing and retail outlets within 1,000 feet of
certain protected areas such as schools, public parks, public transit centers, libraries
and other protected uses, but make no provision for protection of residential areas,
commercial zones and other zoning districts. New WAC 314-55-020(11) provides
that 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." Such rule recognizes the land use regulatory authority granted to
cities under the state constitution to impose appropriate zoning and land use
controls on the location of marijuana production, processing and retail outlets.
4. The City Council finds and determines that the City of Yakima needs time to
consider additional zoning regulations and land use regulations which would deal
specifically with such marijuana production, processing and retailing as authorized
pursuant to Initiative 502, and the City Council has therefore decided to impose a
moratorium for the term of six months, commencing on the effective date of this
ordinance and extending through May 6, 2014, in order to study the issue as
determined by the City Council and to consider adopting appropriate regulations.
5. The City Council finds and determines that imposition of a moratorium is necessary
to (a) provide the City with an opportunity to study the issues regarding location,
zoning and land use regulation of marijuana production, processing and retailing,
and to prepare appropriate revisions to the City's codes and regulations; (b) to
protect the health, safety and welfare of the citizens of Yakima by avoiding and
ameliorating negative impacts of the proliferation of locations for marijuana
2
production, processing and retailing; and (c) avoid applicants possibly establishing
vested rights contrary to and inconsistent with any revisions the City may make to its
regulations and codes as a result of the City's study of this matter;
6. The existing codes, ordinances and procedures of the City of Yakima do not
adequately address land use regulation of marijuana production, processing and
retailing. The City Council further finds and determines that the City of Yakima
needs time to consider additional zoning and land use regulations which would deal
specifically with the production, processing, and retailing of marijuana or marijuana
products within the City of Yakima, and the City Council therefore finds and
determines that the moratorium for the term of six months adopted and implemented
in Ordinance No. 2013-048, extending through May 6, 2014, is necessary and
appropriate in order to study the issues and to consider adopting appropriate
regulations.
7. The City Council finds and determines that the moratorium adopted and
implemented pursuant to Ordinance No. 2013-048 should be effective according to
its terms, and that such is in the best interests of residents of the City of Yakima and
will promote the general health, safety and welfare; and
WHEREAS, the City Council concludes, based on the evidence and testimony
presented at public hearing on November 5, 2013 and on the record herein, that the above
Findings of Fact should be adopted and the moratorium imposed pursuant to Ordinance No.
2013-048 should remain in effect as adopted; now, therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
1. The Findings of Fact set forth above are hereby adopted as the Findings of Fact
supporting the adoption, implementation and continuation of the moratorium adopted
October 8, 2013 pursuant to Ordinance No. 2013-048 according to its terms.
2. The City Manager of the City of Yakima is hereby authorized and directed to perform
those duties and functions set forth in Ordinance No. 2013-048, including but not
limited to, development of proposed comprehensive land use regulations pertaining
to the production, processing and retailing of marijuana and any issue ancillary
thereto.
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ADOPTED BY THE CITY COUNCIL this 51h day of November, 2013.
ATTEST:
Micah Cawley, Mayor
City Clerk
ORDINANCE NO. 2013-048
AN ORDINANCE of the City of Yakima, Washington, adopting a six-month moratorium,
through midnight of May 6, 2014, on the filing, acceptance and
processing of applications, and issuance of land use and development
permits for, production, processing and retailing of marijuana as
authorized pursuant to Initiative 502 approved by the voters on November
6, 2012; setting public hearing on the moratorium adopted herein for
November 5 2013; directing development of comprehensive regulations
pertaining to the production, processing and retail sale of marijuana; and
providing for effective date.
WHEREAS, the people of the State of Washington on November 6, 2012 approved
Initiative 502 decriminalizing possession and use of certain amounts of marijuana and drug
paraphernalia associated with marijuana, and authorized the Washington State Liquor Control
Board (WSLCB) to develop and promulgate rules and regulations pertaining to the licensing of
marijuana production, processing and retail sale; and
WHEREAS, pursuant to Initiative 502 the WSLCB was directed to adopt administrative
rules and procedures for licensing of marijuana production, processing and retailing on or before
December 1, 2013; and
WHEREAS, the WSLCB has announced that it is ready to adopt and issue such rules and
regulations on or about November 18, 2013 and thereafter to receive applications for licenses
for marijuana production, processing and retail sale, and to begin issuance of such licenses
after December 18, 2013; and
WHEREAS, the City of Yakima has previously adopted an ordinance codified at YMC
15.01.035 providing that no use that is illegal under local, state or federal law shall be allowed
within the City of Yakima, and specifically bans medical marijuana dispensaries and collective
gardens under the application of such code; and
WHEREAS, beyond the provisions of YMC 15.01.035, the City of Yakima has no specific
code or ordinance specifically regulating land uses for the marijuana production, processing
and/or retail sale authorized pursuant to Initiative 502 and the regulations to be promulgated by
the WSLCB; and
WHEREAS, the existing land use regulations of the City of Yakima do not address zoning
districts or areas eligible to accommodate marijuana production, processing and retailing, and
the City would benefit from an opportunity to study the location of such uses and where such
uses may be detrimental to the community; and
WHEREAS, allowing facilities for the production, processing and retailing of marijuana to
proliferate without studying the impacts of such uses throughout the City, is likely to result in
probable significant environmental impacts on adjacent land uses, including but not limited to
residential neighborhoods, businesses, churches and public property such as parks and
recreational trails; and
1
WHEREAS, RCW 36.70A.390 and RCW 35.63.200 authorize the City Council to adopt an
ordinance imposing a moratorium and provides a process for public hearing which must be held
within sixty days of the date of adoption of the moratorium; and
WHEREAS, the City Council finds and determines that the City of Yakima needs time to
consider additional zoning regulations and land use regulations which would deal specifically
with such marijuana production, processing and retailing as authorized pursuant to Initiative
502, and the City Council has therefore decided to impose a moratorium for the term of six
months, commencing on the effective date of this ordinance and extending through May 6,
2014, in order to study the issue as determined by the City Council and to consider adopting
appropriate regulations; and
WHEREAS, the City Council finds and determines that imposition of a moratorium is
necessary to (a) provide the City with an opportunity to study the issues regarding siting, zoning
and land use regulation of marijuana production, processing and retailing, and to prepare
appropriate revisions to the City's codes and regulations; (b) to protect the health, safety and
welfare of the citizens of Yakima by avoiding and ameliorating negative impacts of the
proliferation of locations for marijuana production, processing and retailing; and (c) avoid
applicants possibly establishing vested rights contrary to and inconsistent with any revisions the
City may make to its regulations and codes as a result of the City's study of this matter; and
WHEREAS, the City Council authorizes and directs the City Manager to review existing
City codes and zoning regulations, further study the effects resulting from any approval of
Initiative 502 and implementing regulations, prepare comprehensive proposed amendments to
the City codes and zoning regulations to address the effects of such initiative, to confer with
community members and City advisory commissions as appropriate, and to present
recommended legislation addressing such issues to the City Council for consideration and
action; and
WHEREAS, the City Council finds and determines that a public hearing on this
moratorium should be held on November 5, 2013, whereupon the City Council may adopt
findings of fact in support of the adoption of this moratorium, or modify the terms thereof; and
WHEREAS, notwithstanding the term of six months set forth above for the moratorium
adopted herein, this moratorium may at any time hereafter be (a) modified by the City Council in
accordance with applicable law; (b) extended for additional term(s) of six months upon action
following public hearing and adoption of findings in support thereof; (c) terminated by the City
Council upon adoption of appropriate zoning and regulatory codes; or (d) terminated by the City
Council for any reason deemed necessary or appropriate; now, therefore:
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. Moratorium Established. From and after the effective date of this
ordinance, the City shall not allow the filing of or accept any application for a building permit,
tenant improvement, business license, subdivision, short subdivision, site plan review, or any
other development, or for any building (including any additions, expansions, or modifications
thereto), land, structure or land use, in which the production, processing and/or retail sale of
marijuana are, or are proposed to be, operated or conducted. From and after the effective date
of this ordinance, no new land use which operates or conducts the production, processing
and/or retail sale of marijuana as authorized pursuant to Initiative 502 and its implementing
regulations shall be located within the City. As used in this ordinance, the terms "production,"
2
"processing" and "retailing" of marijuana are defined as provided in Initiative 502 and regulations
implementing such initiative promulgated by the WSLCB, as now existing or as hereafter
adopted or amended.
Section 2. Public Hearing. Pursuant to RCW 36.70A.390 and RCW 35.63.220, a
public hearing will be held on Tuesday, November 5, 2013, for the purpose of taking testimony
and, if this ordinance is passed, adopting written findings and conclusions justifying the
moratorium established by this ordinance.
Section 3. Effective Period of Moratorium. The moratorium adopted by this
ordinance shall become effective thirty (30) days after passage and publication as required by
the Charter of the City of Yakima, and shall remain in effect for six months, through May 6,
2014, subject to adoption of findings and conclusions as provided in Section 2 above. This
moratorium shall also terminate upon the adoption of permanent regulations governing the
location and land use of persons and businesses operating with licenses for the production,
processing and retailing of marijuana authorized pursuant to Initiative 502. Notwithstanding the
above, this moratorium may be extended as provided in RCW 36.70A.390 and RCW 35.63.200.
Section 4. Directive to City Manager. The City Council hereby authorizes and
directs the City Manager to review existing City codes and zoning regulations; to further study
the effects resulting from the licensing and location of marijuana production processing and
retailing; to prepare comprehensive proposed amendments to the City codes and zoning
regulations to address the effects of Initiative 502 and its implementing regulations; to confer
with community members and City advisory commissions as appropriate; and to present
recommended legislation addressing such issues to the City Council for consideration and
action.
Section 5. Severability. If any section, sentence, clause or phrase of this ordinance
should be held to be invalid or unconstitutional by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity of constitutionality of any other section,
sentence, clause or phrase of this ordinance.
Section 6. Effective Date. This ordinance shall be in full force and effect thirty (30)
days after its passage and publication as provided by law and the City Charter.
PASSED BY THE CITY COUNCIL, signed and approved this 8th day of October, 2013.
ATTEST:
By
ity Clerk
Publication Date: October 11, 2013
Effective Date: November 10, 2013
3
Micah Cawleyayor
CITY OF YAKIMA
LEGAL
DEPARTMENT
200 South Third Street,Yakima,Washington 918901 (509)575-6030 Fax (509)575-6160
TO:
MEMORANDUM
October 2, 2013
Honorable Mayor and City Council
Tony O'Rourke, City Manager
Jeff Cutter, City Attorney
FROM: Mark Kunkler, Senior Assistant City Attorney
SUBJECT: Initiative 502 — Marijuana — Land Use Regulation — Preemption Issues
On November 6, 2012, voters in the State of Washington approved Initiative 502. This
initiative legalized possession and use of marijuana (one ounce or less) and established
a mechanism for state licensure and regulation of marijuana production, processing and
retailing.
Licensing of the legalized marijuana production, processing and retailing is vested in
the Washington State Liquor Control Board (LCB). Under Initiative 502, the LCB has
until December 1, 2013 to promulgate rules applicable to the licensing and regulation of
marijuana. However, the LCB is on track to issue its final rules on November 16, 2013,
and has announced that it will begin receiving applications for marijuana production,
processing and retailinq licenses on November 18, 2013, and will begin issuing licenses
on December 1, 2013.
Meanwhile, the federal Controlled Substances Act still categorizes marijuana as a
Schedule I controlled substance. Production, distribution, possession and use of
1"1-502 Implementation Timeline," WSLCB, www.liq.wa.gov (as of September 17, 2013). Proposed WAC
314-55-081(4) provides for a "30 -day window" to apply for retail licenses:
(4) The board will initially limit the opportunity to apply for a marijuana retailer license to a thirty -
day calendar window beginning with the effective date of this section. In order for a marijuana
retailer license application to be considered it must be received no later than thirty days after the
effective date of the rules adopted by the board. The board may reopen the marijuana retailer
application window after the initial evaluation of the applications received and at subsequent times
when the board deems necessary.
Memorandum - Marijuana - Land Use Regulation
October 23, 2013
Page 2
marijuana for any purpose are unlawful. Under court decisions, local business licensing
or permitting schemes for medical marijuana have been found to be preempted by the
federal law, but a recent decision by the California Supreme Court upheld a city's right
to ban medical marijuana dispensaries under its land use jurisdiction.3
On August 29, 2013, the U.S. Attorney's office issued a memorandum entitled
"Guidance Regarding Marijuana Enforcement." The memorandum reiterated the U.S.
Attorney's position that marijuana remains a controlled substance under the federal
Controlled Substances Act. The memorandum announced a policy of "prosecutorial
discretion" when considering enforcement actions in states that have legalized
possession and use of recreational marijuana. If the state maintains a "strong and
effective regulatory system" for recreational marijuana that prevents illegal distribution
to minors and prevents introduction of illegal marijuana into interstate commerce, the
U'S. Attorney's office will exercise its "discretion" not to prosecute. However, the
memorandum also makes clear that the federal government may exercise its
enforcement and prosecutorial powers in any case where it finds federal priorities
warrant such action.
The City of Yakima has adopted land use code amendments stating that any use that is
illegal under local, state or federal law shall not be allowed in the city. YMC
15.01.035(A). This code includes a specific subsection providing that the prohibition
also applies to medical marijuana dispensaries and collective gardens. YMC
15.01.035(B).
Issue Presented: What authority does a city retain to regulate licensing and location
of marijuana producers, processors and retailers?
Summary Answer: The new law does not contain a specific provision expressly
providing that the State of Washington is "preempting" the field of regulation, but the
comprehensive nature of the new state law regarding licensure and permitting of
production, processing and retailing will likely be found to preempt the ability of local
jurisdictions to issue regulatory business licenses for these functions. Moreover, if the
city implements a licensing scheme for business engaged in the functions of producing,
processing and/or retailing marijuana, it runs a risk that those city employees engaged
2 In fact Governor Gregoire vetoed provisions of the Medical Use of Marijuana Act (MUMA) on the threat
from the U.S. Attorney's office that the proposed state licensing of medical marijuana dispensaries was a
violation of the federal Controlled Substances Act, and that state employees charged with licensing such
activities could face potential prosecution for "aiding and abetting" a violation of the federal law.
City of Riverside v. Inland Empire Patients Health and Welfare Center, 56 Ca1.4th 729, 300 P.3d 494
(2013).
Memorandum - Marijuana - Land Use Regulation
October 23, 2013
Page 3
in such licensing activities may be found to be "aiding and abetting" a violation of
federal law.
Nothing in the new marijuana law expressly preempts a city's ability to regulate land use
or zoning of facilities for production, processing and retailing of marijuana. The new law
contains "proximity" limitations restricting marijuana production, processing and retailing
(and "advertising") no closer than 1,000 feet from schools, libraries, parks and other
public places. However, proposed Washington Administrative Code (WAC) rules
include provisions recognizing the ability of cities to enforce their zoning and safety
codes.
Current city code provisions ban any use that is illegal under local, state or federal law.
As such, this code provision operates as a ban against marijuana producers,
processors and retailers within the city limits.
With these parameters in mind, the following options are available:
(a) Maintain Status Quo. Status quo means that YMC 15.01.035
remains in effect as originally adopted. Thus, no use that is illegal under local,
state or federal law will be allowed in the city. This code section contains a
specific ban for medical marijuana dispensaries and collective gardens, but no
specific language is used to ban production, processing and retailing of
"recreational marijuana."
(b) Amend Current Code to Ban Production, Processing and Retailing of
Recreational Marijuana. This option entails an amendment of YMC 15.01.035
to add a new subsection specifically banning the production, processing and
retailing of marijuana within the City of Yakima. This is preferable to simply
maintaining the status quo discussed in option (a) above in that it provides
further clarity and precision and is consistent with the current subsection banning
medical marijuana dispensaries and collective gardens. This option entails an
amendment to Title 15 YMC and would require public hearings before the
Planning Commission and City Council. It would be advisable to adopt the
amendment to be effective on or before November 30, 2013.
(c) Develop and Adopt Land Use (Zoning) Controls for Production,
Processing and Retailing of Recreational Marijuana and/or Medical Marijuana.
The city may develop zoning codes defining areas where marijuana production,
processing and/or retailing may be conducted. For example, it is possible to limit
such activities to industrial or commercial zones, or an overlay zone within an
industrial zone, or other areas. Licensed marijuana production, processing and
Memorandum - Marijuana - Land Use Regulation
October 23, 2013
Page 4
retailing would remain subject to the 1,000 -foot limitations of Initiative 502, and
would also be subject to the city's designated zoning requirements. Likewise,
the City Council may wish to consider appropriate zoning designations for
medical marijuana dispensaries and collective gardens. If any of these zoning
options are considered, amendments to the city's zoning codes (Title 15 YMC)
will require public hearings before the Planning Commission and City Council.
Because the LCB indicates it will begin issuing marijuana production, processing
and retail licenses on December 1, 2013, any ordinance amending the city's
zoning codes would have to be adopted so as to be effective no later than
November 30, 2013.
I. Discussion
A. Initiative 502
The Initiative decriminalizes possession and use, by a person twenty-one years or
older, of marijuana in the following amounts:
(a) One ounce of useable marijuana;
(b) Sixteen (16) ounces of marijuana -infused product in solid form; or
(c) Seventy-two (72) ounces of marijuana -infused product in liquid form.
1-502 Sections (15), (20). The law also decriminalizes production, processing,
distribution and sale by any "marijuana producer," "marijuana processor," or "marijuana
retailer" licensed by the LCB. 1-502 Section 19(3). New Section 21 provides that any
person who opens a package containing marijuana, or consumes marijuana, "in view of
the general public" shall be guilty of a Class 3 infraction per Chapter 7.80 RCW.
"Marijuana producer" means "a person licensed by the state liquor control board to
produce and sell marijuana at wholesale to marijuana processors and other marijuana
producers." RCW 69.50.101(u) (1-502 Section 2).
"Marijuana processor" means "a person licensed by the state liquor control board to
process marijuana into useable marijuana and marijuana -infused products, package
and label useable marijuana and marijuana -infused products for sale in retail outlets,
and sell useable marijuana and marijuana -infused products at wholesale to marijuana
retailers." RCW 69.50.101(t) (1-502 Section 2).
Memorandum - Marijuana - Land Use Regulation
October 23, 2013
Page 5
"Marijuana retailer" is defined as "a person licensed by the state liquor control board to
sell useable marijuana and marijuana -infused products in a retail outlet." RCW
69.50.101(w)(I-502 Section 2).
"Retail outlet" is defined as "a location licensed by the state liquor control board for the
retail sale of useable marijuana and marijuana -infused products." RCW 69.50.101(ff)
(1-502 Section 2).
New Section 6(8) and New Section 18 of 1-502 set forth some limitations:
NEW SECTION. Sec. 6.
***
(8) The state liquor control board shall not issue a license for any premises within one thousand
feet of the perimeter of the grounds of any elementary or secondary school, playground,
recreation center or facility, child care center, public park, public transit center, or library, or any
game arcade admission to which is not restricted to persons aged twenty-one years or older.
***
NEW SECTION. Sec. 18. (1) No licensed marijuana producer, processor, or retailer shall
place or maintain, or cause to be placed or maintained, an advertisement of marijuana, useable
marijuana, or a marijuana -infused product in any form or through any medium whatsoever:
(a) Within one thousand feet of the perimeter of a school grounds, playground, recreation
center or facility, child care center, public park, or library, or any game arcade admission
to which is not restricted to persons aged twenty-one years or older;
(b) On or in a public transit vehicle or public transit shelter; or
(c) On or in a publicly owned or operated property.
(2) Merchandising within a retail outlet is not advertising for the purposes of this section.
(3) This section does not apply to a noncommercial message.
(4) The state liquor control board shall fine a licensee one thousand dollars for each violation of
subsection (1) of this section. Fines collected under this subsection must be deposited into the
dedicated marijuana fund created under section 26 of this act.
(Emphasis added). Section 19(3) of 1-502 provides:
(3)The production, manufacture, processing, packaging, delivery, distribution, sale, or possession
of marijuana in compliance with the terms set forth in sections 15, 16, or 17 of this act shall not
constitute a violation of this section, this chapter, or any other provision of Washington state law.
Memorandum - Marijuana - Land Use Regulation
October 23, 2013
Page 6
(Emphasis added). Section 19 amends RCW 69.50.401, which sets forth the criminal
penalties for illegal possession and use of controlled substances. In its context, the
statement above, that lawful production, processing, possession and use of marijuana
shall not constitute a violation of "any other provision of Washington state law," speaks
to other state laws imposing criminal penalties.
Section 10 of the Initiative requires the Liquor Control Board to adopt rules by
December 1, 2013 implementing the provisions of the Initiative, including the following:
NEW SECTION. Sec. 10. The state liquor control board, subject to the provisions of this act,
must adopt rules by December 1, 2013, that establish the procedures and criteria necessary to
implement the following:
(1)Licensing of marijuana producers, marijuana processors, and marijuana retailers, including
prescribing forms and establishing application, reinstatement, and renewal fees;
(2) Determining, in consultation with the office of financial management, the maximum
number of retail outlets that may be licensed in each county, taking into consideration:
(a) Population distribution;
(b) Security and safety issues; and
(c) The provision of adequate access to licensed sources of useable marijuana and
marijuana -infused products to discourage purchases from the illegal market;...
Additional rules are required to determine the amounts of marijuana and marijuana -
infused products that can be held by marijuana producers, processors and retailers.
Rules must be developed regarding packaging, THC levels, classes of marijuana and
marijuana -infused products, establishing "reasonable time, place and manner"
restrictions regarding advertising, times for transport and delivery of marijuana and
marijuana -infused products, and establishing criteria for testing laboratories.
New Section 13 pertains to retail outlets:
NEW SECTION. Sec. 13. There may be licensed, in no greater number in each of the counties
of the state than as the state liquor control board shall deem advisable, retail outlets established
for the purpose of making useable marijuana and marijuana -infused products available for sale to
adults aged twenty-one and over. Retail sale of useable marijuana and marijuana -infused
products in accordance with the provisions of this act and the rules adopted to implement and
enforce it, by a validly licensed marijuana retailer or retail outlet employee, shall not be a criminal
or civil offense under Washington state law.
Also, New Section 10 further describes the methodology to be used by the LCB to
determine the "maximum number of retail outlets that may be licensed in each county:"
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October 23, 2013
Page 7
NEW SECTION. Sec. 10. The state liquor control board, subject to the provisions of this act,
must adopt rules by December 1, 2013, that establish the procedures and criteria necessary to
implement the following:
(1) Licensing of marijuana producers, marijuana processors, and marijuana retailers, including
prescribing forms and establishing application, reinstatement, and renewal fees;
(2) Determining, in consultation with the office of financial management, the maximum number of
retail outlets that may be licensed in each county, taking into consideration:
(a) Population distribution;
(b) Security and safety issues; and
(c) The provision of adequate access to licensed sources of useable marijuana and
marijuana -infused products to discourage purchases from the illegal market;...
(Emphasis added). This section does not, by its terms, limit the ability of a city to
impose zoning restrictions on the location of such establishments. Also, it is important
to note that the law does not mandate that marijuana retail outlets be located in any
city; rather, the law requires the LCB to determine a "maximum" number of retail outlets
"that maybe licensed in each county."
It is also important to note that there is no provision in Initiative 502 limiting the number
of licenses for marijuana production and/or processing operations within each county.
Thus, while the number of marijuana retail outlets is subject to a maximum number per
county, there is no similar limitation for production or processing.
Sections 26 and 27 of Initiative 502 deal with revenues. Section 26 establishes a
"dedicated marijuana fund," which shall consist of "all marijuana excise taxes, license
fees, penalties, forfeitures, and all other moneys, income or revenue received by the
state liquor control board from marijuana -related activities."
Section 27 imposes a 25% excise tax on marijuana production wholesale price, a 25%
excise tax on processing wholesale price, and a 25% excise tax on retail sales. The
revenues are to be deposited in the Dedicated Marijuana Fund. Operations of the LCB
will be funded out of proceeds from the fund. Additionally, the law provides for
disbursements to various state agencies such as DSHS to fund programs and studies.
Section 27 provides that the excise taxes on retail sales are "separate and in addition to
general state and local sales and use taxes that apply to retail sales of tangible
personal property, and is part of the total retail price to which general state and local
sales and uses taxes apply."
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Page 8
B. Liquor Control Board Rule -Making.
Initiative 502 directed the LCB to develop and promulgate rules implementing Initiative
502 by December 1, 2013. As indicated above, the LCB is on track to issue final rules
on November 16, 2013.
Proposed WAC 314-55-020(11) 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.
(Emphasis added.) In short, issuance of a license by LCB does not constitute approval
of a marijuana production, processing or retail facility at a location banned by the city.
This is a significant recognition by LCB of the land use regulation authority of cities and
counties. The interpretation of the code and regulations by the agency charged with
enforcing such codes and regulations is given deference by the courts. Port of Seattle
v. Pollution Control Hearings Board, 151 Wash.2d 568, 90 P.3d 659 (2004)
("...the agency charged with interpreting and applying the water code,
its interpretation of a provision deserves deference, so long as that interpretation is not
contrary to the plain language of the statute").; Cobra Roofing Service, Inc. v.
Department of Labor and Industries, 122 Wash. App. 402, 97 P.3d 17 (2004).
Proposed WAC 314-55-081 pertains to designation of the maximum number of retail
outlets per county:
WAC 314-55-081 Who can apply for a marijuana retailer license?
(1) Using estimated consumption data and population data obtained from the office of financial
management (OFM) population data, the liquor control board will determine the maximum number
of marijuana retail locations per county.
The number of retail locations will be determined using a method that distributes the number of
locations proportionate to the most populous cities within each county. Locations not assigned to a
specific city will be at large. At large locations can be used for unincorporated areas in the county
or in cities within the county that have no retail licenses designated. Once the number of locations
per city and at large have been identified, the eligible applicants will be selected by lottery in the
event the number of applications exceeds the allotted amount for the cities and county. Any lottery
conducted by the board will be witnessed by an independent third party.
(2) The number of marijuana retail licenses determined by the board can be found on the liquor
control board web site at www.liq.wa.gov.
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October 23, 2013
Page 9
(3) Any entity and/or principals within any entity are limited to no more than three retail marijuana
licenses with no multiple location licensee allowed more than thirty-three percent of the allowed
licenses in any county or city.
(4) The board will initially limit the opportunity to apply for a marijuana retailer license to a thirty -
day calendar window beginning with the effective date of this section. In order for a marijuana
retailer license application to be considered it must be received no later than thirty days after the
effective date of the rules adopted by the board. The board may reopen the marijuana retailer
application window after the initial evaluation of the applications received and at subsequent times
when the board deems necessary.
Under these rules, if a city enacts a ban on marijuana production, processing and
retailing, the effect would be to convert the number of "assigned" retail licenses to "at
large" licenses. These "at large" locations could used for unincorporated areas of the
county "or in cities within the county that have no retail licensed designated." Thus, the
enactment of a city-wide ban would not change the number of "maximum" retail
licenses attributed to the county, but would simply rearrange "location" of the licensed
sites and convert status from "assigned" to "at large."
C. Local Land Use Jurisdiction
The ability of cities to make and impose land use regulations is established in the state
constitution. Constitution Article 11, § 11 provides: "Any county, city, town or township
may make and enforce within its limits all such local police, sanitary and other
regulations as are not in conflict with general laws." This authority was explained as
follows:
Municipalities are constitutionally vested with the authority to enact ordinances in furtherance of
the public health, safety, morals, and welfare. However, "the plenary police power in regulatory
matters accorded municipalities by Const. Art. 11, § 11, ceases when the state enacts a general
law upon the particular subject, unless there is room for concurrent jurisdiction." Lenci v. Seattle,
63 Wash.2d 664, 669, 388 P.2d 926 (1964). Whether there is room for concurrent jurisdiction
depends upon the legislative intent to be ascertained from an examination of the statute involved
and the interaction between the state and local provisions. Where the Legislature does not
specifically state its intent to occupy a given field, such intent can be inferred from "the purposes
of the legislative enactment and ... the facts and circumstances upon which the enactment was
intended to operate." Lenci, at 670, 388 P.2d 926.
Baker v. Snohomish County Dept. of Planning and Community Development, 68
Wash.App. 581, 585, 841 P.2d 1321, review denied, 121 Wash.2d 1027, 854 P.2d
1085 (1993); Brown v. City of Yakima, 116 Wash.2d 556, 807 P.2d 353 (1991)(citations
omitted).
In Baker, the plaintiff had obtained a surface mining permit from the state Department
of Natural Resources pursuant to provisions of the Surface Mining Act, Chapter 78.44
Memorandum - Marijuana - Land Use Regulation
October 23, 2013
Page 10
RCW ("SMA"), but the county code required a conditional use permit for surface mining
use. The plaintiff alleged that the provisions of the SMA preempted the county's ability
to require a conditional use permit. The court disagreed and upheld the county's
conditional use permit requirement:
In general, even when they address the same field of activity, the presumption is that state
legislation and local legislation are concurrent in the absence of a direct conflict. Thus, although a
subordinate legislative body may not prohibit something permitted by the superior legislative body,
it may have the power to pass additional regulations which are not in direct conflict. In determining
whether an ordinance is in conflict with general laws, the test is " `whether the ordinance permits
or licenses that which the statute forbids and prohibits, and vice versa [.]' " Employco Personnel
Services, Inc. v. Seattle, 117 Wash.2d 606, 618, 817 P.2d 1373 (1991) (quoting Bellingham v.
Schampera, 57 Wash.2d 106, 111, 356 P.2d 292 (1960). Judged by such a test, an " `ordinance is
in conflict if it forbids that which the statute permits'." (Footnote omitted.) Employco, 117 Wash.2d
at 618, 817 P.2d 1373 (quoting Schampera, 57 Wash.2d at 111, 356 P.2d 292). Snohomish
County land use ordinances do not purport to forbid anything authorized by SMA, but at most to
regulate the activity. Nor do they purport to authorize surface mining without a DNR permit.
Nothing in the provisions of the SMA suggests any inherent or necessary conflict with local land
use regulations. On the contrary, the act is almost totally directed to concerns of reclamation and
gives no direction to DNR as to land use considerations. If one were to speculate on legislative
purpose, it would appear more likely that the Legislature felt local land use regulation did not
sufficiently address reclamation rather than that the Legislature wanted DNR to determine where
surface mining could take place irrespective of local zoning regulations.
Another factor against preemption is that it is impossible to demonstrate in the abstract that the
provisions of a DNR permit and the provisions of the Snohomish County land use ordinance are in
conflict. The DNR has great flexibility in fixing the terms of its permit and the local agency likewise
has a large measure of discretion in the terms to be required in a conditional use permit. Where
any conflict is hypothetical and dependent upon the precise manner in which two discretionary
permits were crafted, it is inappropriate to find preemption by implication. It is soon enough to find
preemption when a conflict arises. There is no showing, nor even any attempt to show, that
concurrent authority is not possible and, indeed, practical and feasible. It certainly was practical
and feasible with respect to Baker's operation because he operated successfully under concurrent
state and local regulation.
Baker, supra at 590-91.
In Weden v. San Juan County, 135 Wash.2d 678, 958 P.2d 273 (1998), the county
commissioners adopted a ban on motorized personal watercraft ("PWC") in the marine
waters of San Juan County. Owners of PWCs filed suit contending that the ban
conflicted with the state's Recreational Vehicle Registration Law, Chapter 88.02 RCW
and was thus in violation of Constitution Article XI, Section 11. The Weden court
observed:
Article XI, section 11 requires a local law yield to a state statute on the same subject matter if that
statute "preempts the field, leaving no room for concurrent jurisdiction," or "if a conflict exists such
that the two cannot be harmonized." Brown v. City of Yakima, 116 Wash.2d 556, 559, 561, 807
Memorandum - Marijuana - Land Use Regulation
October 23, 2013
Page 11
P.2d 353 (1991). Respondents do not argue that the Legislature has preempted the field of
conduct governed by the Ordinance but, rather, contend the Ordinance conflicts with various state
laws.
"In determining whether an ordinance is in `conflict' with general laws, the test is whether
the ordinance permits or licenses that which the statute forbids and prohibits, and vice
versa." Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519 [ (1923) ]. Judged by
such a test, an ordinance is in conflict if it forbids that which the statute permits,' State v.
Carran, 133 Ohio St. 50, 11 N.E.2d 245, 246 [ (1937) ].
City of Bellingham v. Schampera, 57 Wash.2d 106, 111, 356 P.2d 292, 92 A.L.R.2d 192 (1960).
An ordinance must yield to state law only "if a conflict exists such that the two cannot be
harmonized." Brown, 116 Wash.2d at 561, 807 P.2d 353; accord Schampera, 57 Wash.2d at 111,
356 P.2d 292 ("Unless legislative provisions are contradictory in the sense that they cannot
coexist, they are not to be deemed inconsistent because of mere lack of uniformity in detail.
Bodkin v. State, [132 Neb. 535], 272 N.W. 547 [ (1937) ]."). In this case, we must examine
whether the Ordinance conflicts with chapter 88.02 RCW, chapter 88.12 RCW, chapter 90.58
RCW, chapter 43.99 RCW, or the public trust doctrine.
Weden, supra at 693. Addressing the claims of the PWC owners, the court held:
The trial court found the Ordinance conflicted with chapter 88.02 RCW, the state vessel
registration statute. In essence, the trial court found that the Ordinance forbid an activity the
statute impliedly allowed.
We have previously addressed a similar argument and established an analysis to be followed. In
State ex rel. Schillberg v. Everett Dist. Justice Court, 92 Wash.2d 106, 594 P.2d 448 (1979), we
reviewed a Snohomish County ordinance that prohibited the use of internal combustion motors on
"certain lakes" in Snohomish County. Schillberg, 92 Wash.2d at 107, 594 P.2d 448. A person
charged with violating the statute challenged the law "on the ground that it conflict[ed] with
[chapter 88.12 RCW]." Schillberg, 92 Wash.2d at 107, 594 P.2d 448. We found no conflict and
stated:
The provisions of [chapter 88.12 RCW] are concerned with safe operation of motor boats
and do not in any way grant permission to operate boats in any place. A statute will not be
construed as taking away the power of a municipality to legislate unless this intent is clearly
and expressly stated....
There being no express statement nor words from which it could be fairly inferred that motor
boats are permitted on all waters of the state, no conflict exists and the ordinance is valid.
Schillberg, 92 Wash.2d at 108, 594 P.2d 448 (citations omitted). Schillberg certainly lays to rest
any claim that the Ordinance conflicts with chapter 88.12 RCW. However, we hold
Schillbergcontrols the discussion of whether the Ordinance conflicts with the state's vessel
registration statute, chapter 88.02 RCW.
The Legislature did not enact chapter 88.02 RCW to grant PWC owners the right to operate their
PWC anywhere in the state. The statute was enacted to raise tax revenues and to create a title
system for boats. See RCW 88.02.120. RCW 88.02.020 provides, in pertinent part: "Except as
provided in this chapter, no person may own or operate any vessel on the waters of this state
Memorandum - Marijuana - Land Use Regulation
October 23, 2013
Page 12
unless the vessel has been registered and displays a registration number and a valid decal in
accordance with this chapter...." On its face, the statute prohibits operation of an unregistered
vessel. Nowhere in the language of the statute can it be suggested that the statute creates an
unabridged right to operate PWC in all waters throughout the state.
Registration of a vessel is nothing more than a precondition to operating a boat. No unconditional
right is granted by obtaining such registration. Statutes often impose preconditions which do not
grant unrestricted permission to participate in an activity. Purchasing a hunting license is a
precondition to hunting, but the license certainly does not allow hunting of endangered species,
RCW 77.16.120, or hunting inside the Seattle city limits, see Seattle Municipal Code 12A.14.071
(banning discharge of a firearm). Reaching the age of 16 is a precondition to driving a car, but
reaching 16 does not create an unrestricted right to drive a car however and wherever one
desires.
Schillberg states that the Legislature must expressly indicate an intent to preempt a particular
field. In this case, the registration statute does not contain language preempting the regulation of
this activity to the State. See RCW 46.08.020. We "will not interpret a statute to deprive a
municipality of the power to legislate on particular subjects unless that clearly is the legislative
intent." Southwick, Inc. v. City of Lacey, 58 Wash.App. 886, 891-92, 795 P.2d 712 (1990). The
San Juan County Ordinance does not conflict with the state's vessel registration statute; it is a
routine application of the police power.
Weden, supra at 694-95 (footnotes omitted).
There is no provision in Initiative 502 requiring a city to allow marijuana producers,
processors, or retail outlets within its jurisdiction. There is also no express provision
preempting the city's ability to regulate location of marijuana producing, marijuana
processing and marijuana retail operations. As in Weden, the issuance of a license to
produce, process or retail marijuana is a precondition to such use, but does not then
automatically allow such use anywhere in the state. Thus, the city should retain its
ability to either (a) ban such uses, or (b) establish appropriate zoning controls over
these uses. Zoning controls could include reasonable "proximity" limitations -
governing proximity to public parks, schools, libraries, residential districts and other
public places.4
Such provisions would not conflict with the licensing provisions of the Liquor Control
Board - unless the restrictions had the effect of eliminating all marijuana production,
processing or retailing opportunities in the county, or restricting the number of retail
sites available in the county to a number less than authorized by the LCB.
41-502 itself (Section 6(8) and Section 18) restrict location and "advertising" of marijuana outlets within
"one thousand feet of the perimeter of a school grounds, playground, recreation center or facility, child
care center, public park, or library, or any game arcade admission to which is not restricted to persons
aged twenty-one years or older." The Initiative also prohibits advertising on public transit vehicles and
shelters, as well as "on or in a publicly owned or operated property." These provisions are analogous to
the land use regulation of adult businesses.
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October 23, 2013
Page 13
D. Business Licensing and Regulation
On the question of whether a city could adopt regulations pertaining to the business
licensing, or regulating the operation, of marijuana producers, processors or retailers, a
substantial risk of conflict exists. The LCB has adopted a comprehensive licensing and
regulatory scheme for these operations. A prudent observation is that the LCB has,
indeed, preempted the licensing of marijuana producers, processors and retailers, and
has established detailed requirements for the operation of such functions. However,
preemption of licensing does not mean that Initiative 502 or the LCB regulations have
preempted the local land use jurisdiction of the city.
A further reason to counsel caution in the area of business licensing is the conflict
between federal and state law regarding marijuana. As noted above, marijuana (for any
purpose) is an illegal drug listed as a Schedule I controlled substance under the federal
Controlled Substances Act, 21 U.S.C. § 801-971 (Section 812(c)). Strictly speaking,
Initiative 502 authorizes production, processing, sale, possession and use of marijuana
in violation of the federal law. It remains a risk that the U.S. Department of Justice may
initiate an enforcement action if it determines that a local production, processing or
retail operation is not being vigorously enforced under state law and is distributing illegal
substances to minors or to an illicit market.5
In the realm of medical marijuana, Initiative Measure No. 692, approved by the voters of
Washington State on November 30, 1998 and now codified as Chapter 69.51 A RCW, is
entitled the "Washington State Medical Use of Marijuana Act" (hereafter the "Medical
Use of Marijuana Act" or "MUMA"). MUMA creates an affirmative defense for
"qualifying patients" to the charge of possession of marijuana, and provides that such
patients can, as an alternative to growing marijuana for their own use, designate a
"designated provider" who can provide (not sell) medical marijuana to "only one patient
at a time."
MUMA did not create any mechanism for the establishment or operation of
"dispensaries," either storefront or regulated by state or local agencies. Consequently,
the consensus of opinion, including that of the Washington State Department of Health,
was that dispensaries were not legal or authorized under MUMA.
In 2011, the Legislature adopted E2SSB 5073. As originally passed by the Legislature,
the bill contained extensive provisions that provided for state registration and licensing
of medical marijuana dispensaries, and further authorized the formation of "collective
gardens." A "collective garden" allows up to ten (10) "qualified patients" to jointly
5 Memorandum, U.S. Attorney's Office, "Guidance Regarding Marijuana Enforcement" (August 29, 2013).
Memorandum - Marijuana - Land Use Regulation
October 23, 2013
Page 14
operate a medical marijuana grow operation, with up to 15 marijuana plants per person
(up to a total maximum of 45 plants per garden).
The Governor vetoed the provisions of E2SSB 5073 pertaining to "dispensaries" and
other provisions — essentially on the grounds that, under existing federal law, marijuana
in all forms is a Schedule I controlled substance subject to prosecution. Her concern
was that, under the bill as written, state employees charged with administering the
licensing of medical marijuana dispensaries could be prosecuted for violation of the
federal Controlled Substances Act. Because of this veto, no meaningful provisions
remain in MUMA authorizing medical marijuana "dispensaries." Thus, the rationale
remains that dispensaries continue to be illegal — or at least without statutory sanction.6
Regarding "collective gardens," no statutory provisions provide mandatory directives
regarding local land use regulation, zoning limitations or business regulation.
Consequently, these matters are subject to local regulation and control. Section 1102
of E2SSB 5073 expressly preserved the ability of local governments to regulate medical
marijuana facilities and operations:
NEW SECTION. Sec. 1102. (1) Cities and towns may adopt and enforce any of the following
pertaining to the production, processing, or dispensing of cannabis or cannabis products within
their jurisdiction: Zoning requirements, business licensing requirements health and safety
requirements, and business taxes. Nothing in this act is intended to limit the authority of cities and
towns to impose zoning requirements or other conditions upon licensed dispensers, so lona as
such requirements do not preclude the possibility of siting licensed dispensers within the
jurisdiction.' If the jurisdiction has no commercial zones, the jurisdiction is not required to adopt
zoning to accommodate licensed dispensers.
With the Governor's veto of the provisions of E2SSB 5073 regarding licensing and
registration of "dispensaries," the underlined clause above was found by the Governor
to be "without meaning." E2SSB 5073, Governor's Veto Message, page 43.
Consequently, an argument exists that, under MUMA and in light of federal law,
6 However, on July 18, 2011, the City of Seattle adopted Council Bill No. 117229. The Bill recites the
existing federal prohibitions on marijuana, but acknowledges the city's "low priority" regarding investigation
and prosecution of marijuana offenses (per Initiative 75 adopted by Seattle voters on September 16,
2003). The Bill acknowledges the existence of "numerous" medical marijuana dispensaries within the City
of Seattle, and states that medical marijuana dispensaries would be permitted, subject to compliance with
existing zoning regulations, health and safety codes, building codes, etc.
The highlighted language was the subject of a portion of the Governor's veto message. Her conclusion
was that, with the veto of all provisions of E2SSB 5073 regarding licensing of "dispensaries," the
underlined portion had no effect ("The provisions in Section 1102 that local governments' zoning
requirements cannot 'preclude the possibility of siting licensed dispensers within the jurisdiction' are
without meaning in light of the vetoes of sections providing for such licensed dispensers. It is with this
understanding that I approve Section 1102.")(E2SSB 5073, page 43).
Memorandum - Marijuana - Land Use Regulation
October 23, 2013
Page 15
dispensaries remain illegal. In consideration of the above, the City Council of the City
of Yakima in 2012 adopted the following amendment to Chapter 15.01 YMC:
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 69.51 A
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. (Ord. 2012-03 § 2, 2012).
A significant ruling in the area of medical marijuana and a city's ability to exercise its
land use jurisdiction to ban medical marijuana was recently issued by the Supreme
Court of California. In City of Riverside v. Inland Empire Patients Health and Welfare
Center, 56 Ca1.4`h 729, 300 P.3d 494 (2013), the court ruled:
The issue in this case is whether California's medical marijuana statutes preempt a local ban on
facilities that distribute medical marijuana. We conclude they do not.
Both federal and California laws generally prohibit the use, possession, cultivation, transportation,
and furnishing of marijuana. However, California statutes, the Compassionate Use Act of 1996
(CUA; Health & Saf.Code, Section 11362.5, added by initiative, Prop. 15, as approved by voters,
Gen. Elec. (Nov. 5, 1996)) and the more recent Medical Marijuana Program (MMP; § 11362.7 et
seq., added by Stats. 2003, ch. 875, § 2, pp. 6422, 6424), have removed certain state law
obstacles from the ability of qualified patients to obtain and use marijuana for legitimate medical
purposes. Among other things, these statutes exempt the "collective[ ] or cooperative[ ]
cultiva[tion]" of medical marijuana by qualified patients and their designated caregivers from
prosecution or abatement under specified state criminal and nuisance laws that would otherwise
prohibit those activities. (§ 11362.775.)
The California Constitution recognizes the authority of cities and counties to make and enforce,
within their borders, "all local, police, sanitary, and other ordinances and regulations not in conflict
with general laws." (Cal. Const., art. XI, § 7.) This inherent local police power includes broad
authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses
of land within a local jurisdiction's borders, and preemption by state law is not lightly presumed.
In the exercise of its inherent land use power, the City of Riverside (City) has declared, by zoning
ordinances, that a "[m]edical marijuana dispensary"—"[a] facility where marijuana is made
available for medical purposes in accordance with" the CUA (Riverside Municipal Code (RMC), §
19.910.140)—is a prohibited use of land within the city and may be abated as a public nuisance.
(RMC, §§ 1.01.110E, 6.15.020Q, 19.150.020 & table 19.150.020 A.) The City's ordinance also
Memorandum - Marijuana - Land Use Regulation
October 23, 2013
Page 16
bans, and declares a nuisance, any use that is prohibited by federal or state law. (RMC, §§
1.01.110E, 6.15.020Q, 9.150.020.)
Invoking these provisions, the City brought a nuisance action against a facility operated by
defendants. The trial court issued a preliminary injunction against the distribution of marijuana
from the facility. The Court of Appeal affirmed the injunctive order. Challenging the injunction,
defendants urge, as they did below, that the City's total ban on facilities that cultivate and
distribute medical marijuana in compliance with the CUA and the MMP is invalid. Defendants
insist the local ban is in conflict with, and thus preempted by, those state statutes.
As we will explain, we disagree. We have consistently maintained that the CUA and the MMP are
but incremental steps toward freer access to medical marijuana, and the scope of these statutes
is limited and circumscribed. They merely declare that the conduct they describe cannot lead to
arrest or conviction, or be abated as a nuisance, as violations of enumerated provisions of the
Health and Safety Code. Nothing in the CUA or the MMP expressly or impliedly limits the inherent
authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the
authority to provide that facilities for the distribution of medical marijuana will not be permitted to
operate within its borders. We must therefore reject defendants' preemption argument, and must
affirm the judgment of the Court of Appeal.
City of Riverside, supra at 737-38 (footnotes omitted). The court concluded:
We thus conclude that neither the CUA nor the MMP expressly or impliedly preempts the authority
of California cities and counties, under their traditional land use and police powers, to allow,
restrict, limit, or entirely exclude facilities that distribute medical marijuana, and to enforce such
policies by nuisance actions. Accordingly, we reject defendants' challenge to Riverside's MMD
ordinances.
As we have noted, the CUA and the MMP are careful and limited forays into the subject of
medical marijuana, aimed at striking a delicate balance in an area that remains controversial, and
involves sensitivity in federal -state relations. We must take these laws as we find them, and their
purposes and provisions are modest. They remove state -level criminal and civil sanctions from
specified medical marijuana activities, but they do not establish a comprehensive state system of
legalized medical marijuana; or grant a "right" of convenient access to marijuana for medicinal
use; or override the zoning, licensing, and police powers of local jurisdictions; or mandate local
accommodation of medical marijuana cooperatives, collectives, or dispensaries.
City of Riverside, supra at 762-63 (footnotes omitted). Like California, MUMA removed
criminal sanctions from qualified patients and physicians who complied with the law.
California constitutional provisions and statutes closely mirror those of the State of
Washington with regard to local legislation and preemption. Therefore, the reasoning
used by the City of Riverside court in upholding the city's ban of medical marijuana
dispensaries supports the city's jurisdiction to ban medical marijuana dispensaries and
collective gardens.
Business licensing - essentially the regulation and positive issuance of a permit to
conduct a business in violation of federal law - is especially problematic. Courts in other
jurisdictions have held that local legislation authorizing conduct and uses in violation of
Memorandum - Marijuana - Land Use Regulation
October 23, 2013
Page 17
the federal Controlled Substances Act are in conflict with such federal legislation and
thus preempted by the federal law (cf., Emerald Steel Fabricators v. Bureau of Labor
and Industries, 348 Or. 159, 230 P.3d 518 (2010)). In Emerald, the court held that a
provision of Oregon Medical Marijuana Act affirmatively authorizing the use of medical
marijuana was preempted by Federal Controlled Substances Act, which explicitly
prohibited marijuana use without regard to medicinal purpose.
E. City of Yakima — Current Code
The provisions in YMC 15.01.035 prohibit any use within the City of Yakima that is
illegal under local, state or federal law. Recreational use of marijuana remains unlawful
under federal law. Under current code, the production, processing, sale and use of
marijuana for any purpose would not be permitted.
The current code thus operates as a form of "moratorium" enacted as code. The
provisions of YMC 15.01.035 are not in conflict with the federal Controlled Substances
Act, as both the local code and federal law prohibit such use of marijuana.
The issue will be whether YMC 15.01.035 "conflicts" with the general law of Initiative
502 and is thus preempted. In this regard, several factors argue that maintaining the
ban would not conflict with Initiative 502:
• Initiative 502 does not expressly state that it preempts the field with regard
to land use regulation of marijuana production, processing and retailing.
(The Initiative, however, does preempt the field with regard to criminal
prosecution for use or possession of marijuana in the amounts
decriminalized by the Initiative.)
• The only mandate placed upon the Liquor Control Board is to adopt rules
defining the maximum number of retail outlets "in each county" of the State
of Washington. There is no minimum or maximum number of retail outlets
mandated for cities within such counties. Conceivably, a city may ban
such use, leaving the locations for retail outlets confined to the county (or
other cities that have not banned such use).
• Any legislation by the city that bans marijuana production, processing and
retailing within the city limits does not "prohibit what the legislature has
allowed," because the Initiative does not mandate that any of these
production, processing or retailing functions occur within any city. The
Initiative speaks to a maximum number of retail outlets that "may" be
located within each county of the state. If such uses are banned in any
Memorandum - Marijuana - Land Use Regulation
October 23, 2013
Page 18
city, the purposes of the Initiative are not frustrated because such uses can
be located within the county (or in any other city in which they are not
banned).
• There is no mandate at all in the Initiative regarding a minimum number of
producers or processors anywhere within the state.
• There is no express provision of the Initiative stating that cities cannot ban
such operations from the city.
• While the provisions of the Initiative arguably preempt the field of business
licensing of marijuana producers, processors and retailers, the provisions
of YMC 15.01.035 deal with land uses within the city — not business
licensing.
• Under the Supremacy Clause of the federal Constitution, federal law will
prevail over any conflicting state or local law. Federal law currently lists
marijuana as a Schedule I controlled substance.
F. Recommendation
With these parameters in mind, the following options are available:
(a) Maintain Status Quo.
Status quo means that YMC 15.01.035 remains in effect as originally adopted.
Thus, no use that is illegal under local, state or federal law will be allowed in the
city. This code section contains a specific ban for medical marijuana
dispensaries and collective gardens, but no specific language is used to ban
production, processing and retailing of "recreational marijuana."
(b) Amend Current Code to Ban Production, Processing and Retailing of
Recreational Marijuana.
This option entails an amendment of YMC 15.01.035 to add a new subsection
specifically banning the production, processing and retailing of marijuana within
the City of Yakima. This is preferable to simply maintaining the status quo
discussed in option (a) above in that it provides further clarity and precision and
is consistent with the current subsection banning medical marijuana dispensaries
Memorandum - Marijuana - Land Use Regulation
October 23, 2013
Page 19
and collective gardens. This option entails an amendment to Title 15 YMC and
would require public hearings before the Planning Commission and City Council.
It would be advisable to adopt the amendment to be effective on or before
November 30, 2013.
(c) Develop and Adopt Land Use (Zoning) Controls for Production,
Processing and Retailing of Recreational Marijuana and/or Medical Marijuana.
The city may develop zoning codes defining areas where marijuana production,
processing and/or retailing may be conducted. For example, it is possible to limit
such activities to industrial or commercial zones, or an overlay zone within an
industrial zone, or other areas. Licensed marijuana production, processing and
retailing would remain subject to the 1,000 -foot limitations of Initiative 501, and
would also be subject to the city's designated zoning requirements. Likewise,
the City Council may wish to consider appropriate zoning designations for
medical marijuana dispensaries and collective gardens. If any of these zoning
options are considered, amendments to the city's zoning codes (Title 15 YMC)
will require public hearings before the Planning Commission and City Council.
Because the LCB indicates it will begin issuing marijuana production, processing
and retail licenses on December 1, 2013, any ordinance amending the city's
zoning codes would have to be adopted so as to be effective no later than
November 30, 2013.
Distributed at the
Meeting )1'G " 3
MCS OF CENTRAL WASHINGTON
6401 State Route 410
Neches, WA, 98937
Phone (509)658-1106
Mcsofcw@gmail.com
11/4/2013
Yakima City Council Members
Re: Moratorium on Recreational Marijuana
Dear Council members,
I write to introduce myself and the entity for which I serve as Executive Director, which is MCS of Central
Washington, a Washington nonprofit corporation. MCS is a medical marijuana cooperative. We have helped
numerous patients for whom medical marijuana eases pain and suffering and for whom, like in my case, has
been life-saving (which I'II elaborate on below). Our organization is and has been following closely the status
of legislation and rule-making at the state and local level; for example, we attended the City Council Study
Session on October 8, 2013 at which the moratorium to enable the thoughtful consideration of an ordinance
regulating recreational marijuana was approved, we've previously contacted and met with the Yakima
Sheriffs office and City legal department to share information about our organization, and we're monitoring
closely the state rule-making processes such as the Liquor Control Board rule-making efforts both with
regard to 1-502, as well as the LCB's October 21, 2013 draft recommendations of the Medical Marijuana
Work Group. In short, we're a well-informed group advocating the right to treat patients with legitimate
medical needs and we want our industry to be regulated to remove the charlatans, black market profiteers,
and gang `businessmen'. But right now, those illegitimate businesses prosper within the City of Yakima,
while ours, which adheres to the rules in place, suffers because of the outright ban underYMC 15.01.035.
Now, why I'm such a supporter of responsible, regulated medical marijuana within the Yakima City limits. I
am a patient, too. My story began at age fourteen, when I was diagnosed with ulcerative colitis. A horrible
inflammatory bowel disease. It progressed at an astonishing rate and by nineteen I was forced to drop out of
college due to the severity of my symptoms. Within six months my body had shut down and began to reject
any type of nourishment. By the time I was admitted into Virginia Mason hospital I was nearing seventy
pounds and it was determined I couldn't survive the surgeries. After exhausting all avenues, my surgeon
asked for my permission to try cannabis as an option to spark my body's need for food. A few hours later a
nurse came back from a local underground dispensary and they wheeled me down to the showers undergoing
a remodel. I smoked my first joint at seventy three pounds and dying. I finally ate. It didn't come backup
and I didn't double over in pain or blackout. I gained enough weight to survive the initial surgery that
removed my colon and the majority of my large intestine, and I am only here due to cannabis's ability to solve
a problem modem medicine could not. I since have used a cannabis related post surgical care plan and have
not needed to see a doctor but a handful of times since having had my surgeries.
All of us at MCS have similar stories which make us believers in the responsible use of medical cannabis.
However, another source of inspiration comes from the countless tear filled thanks' we receive from our
members and their family members who have found relief for the first time with cannabis. Such a benign
product, with such phenomenal potential, should not be kept from those searching for altemative means of
medical relief in our community.
What we find illogical, is that the 'recreational' dispensation of marijuana (for fun) is being considered for
rule-making legislation (not that we're necessarily opposed to that), while the outright ban on medical
marijuana still appears to be staunchly supported by the Council. Our rhetorical question is why we're willing
to ban the most commonly and overwhelmingly accepted version of cannabis use , medicinal while
encouraging the most controversial version of use, recreational? Recreational cannabis can not provide the
care and level of medicinal benefits that medical cannabis can. We have specifically developed cannabis,
which we produce with the aid of professional agronomists, botanists, and horticulturalists for patient
illnesses and diseases. In, fact, the two "versions" of cannabis medicinal vs. recreational, couldn't be more
different. Asking a medical cannabis patient to go to a recreational store for their medicine is like telling a
terminally ill cancer patient to try a Budweiser to cope with their symptoms.
I understand that the upcoming City Council meeting is simply to approve the moratorium on enactment of
recreational marijuana regulations. We'II nevertheless be in attendance. I'll make a point of introducing
myself and MCS to the Council, with the hopes that along with this letter we can commence a discussion with
the Council about re -visiting the topic of regulating medical marijuana for authorization within Yakima City
limits, as the State is presently examining the issue on a wider scale.
Sincerely,
Jeffrey McPhee
Executive Director
MCS of Central Washington
6401 State Route 410
Naches, WA 98937
509-658-1106
509-406-5783
Coalition for Cannabis Ethics and Standards
This document was approved by the Coalition for Cannabis Standards and Ethics. It
contains minimum standards for Production Facilities for Coalition members. It is our
hope that these standards will serve the medical cannabis community. In an effort to self -
regulate the cannabis industry, we will hold ourselves to the following minimum
standards:
Production Facilities Shall:
1. State and local business licenses are to be obtained and maintained by the
business entity operating the production facility.
2. Production facilities are to be built to comply with local building code.
3. Pesticide handler permits are to be obtained and maintained for any applicator of
chemicals to any cannabis crops.
4. Material Safety Data Sheets (MSDS) for all applicable hazardous materials are to
be kept on site and available to employees that may be exposed to them as
required by state law.
5. Production facilities are to have and maintain an adequate security system to
prevent robbery and theft.
6. Production facilities are to maintain proper ventilation systems to ensure that
there is no odor exterior of the facility.
7. Production facilities will not be closer than 500' from an accredited K-12 school
and adhere to local zoning laws.
8. No exterior signage is to be used to identify the presence of a production facility.
9. Production facilities will not have any firearms on the premises at any time.
10. No cannabis should be visible from the outside of the production facility
including when exterior doors are opened.
11. No grow supplies shall be stored in the exterior of the production facility that may
be viewable to the public.
12. Exterior of production facilities are to be maintained and have a clean and orderly
appearance.
13. Proper flushing is to be performed at the end of the grow cycle of any crop to
remove excess nutrients and chemicals. Flushing time and technique is to be
recorded on Crop Lifecycle Information Sheet (CLIS).
14. Proper curing is to be performed to ensure quality of medicine and avoid
contaminants. Curing method is to be detailed on CLIS sheet.
15. All crops are to have a CLIS detailing grow methods and chemicals that is made
available to the access point. Business information will not be shared with the
consumer.
16. All waste by-products are to be disposed of in an environmentally responsible
manner.
Coalition for Cannabis Ethics and Standards
Proposed Guidelines for Processors
This document was approved by the Coalition for Cannabis Standards and Ethics. It contains
minimum standards for Medicated Edibles for Coalition members. It is our hope that these
standards will serve the medical cannabis community. In an effort to self -regulate the cannabis
industry, we will hold ourselves to the following minimum standards:
Processors shall:
1. Pay all governmental liabilities that are incurred as a result of doing business in Washington
State, including:
a. B & O (State)
b. Payroll / Employee (Federal/L&I/Employment Security)
c. Federal Income Tax
d. Business Liability Insurance
2. Obtain and maintain King County Food Workers Permit(s) and abide by the following standards:
a. All patients engaged in production must have a valid Food Workers Permit
b. Copies of patient(s) King County Food Workers Permit(s) or permit number must be
made available to Access Points
3. Follow applicable FDA labeling guidelines by providing an easy to read label that provides the
following elements:
a. Principal Display Panel (Product Name and Net Weight)
b. Nutrition Panel (Ingredients, Nutrition Facts, Amount of Cannabis by Gram In Individual
Product and Manufacturer/Distributor Contact)
c. Legal & Cautionary Panel (Expiration Date, Reference To WA Medical Cannabis Law,
Warning To "Keep Away From Children", "No Resale" and "No Consumption While
Operating Heavy Machinery" Instructions)
4. Follow all applicable FDA packaging requirements including:
a. Providing food grade, air tight packaging with tamper resistant closures
b. Packaging products immediately post -production
5. Maintain Processing Facility standards, which include:
a. During production, area is to be used exclusively for processing
b. Only sanitized, non -porous surfaces are to be used in production
C. Food Worker Permit(s) are to be made accessible in facility
6. Not produce edibles REQUIRING refrigeration or hot handling in a personal kitchen. Proper
facilities for the production of edibles REQUIRING refrigeration or hot handling include:
a. King County Department of Health regulated food establishments
b. Department of Agriculture regulated food processing establishments
7. Verify that all medicine used in product comes from authorized Washington State Patient(s) by
carefully choosing patient growers or utilizing chain of custody & testing credentials
8. Maintain branding and advertising that does not target minors
9. Practice exterior odor control and maintain compliance with applicable Chronic Nuisance laws
and local zoning regulations
Coalition for Cannabis Standards and Ethics
Access Point Subcommittee
This document was approved by the Coalition for Cannabis Standards and Ethics. It contains
minimum standards for Access Points for Coalition members. It is our hope that these standards
will serve the medical cannabis community. In an effort to self -regulate the cannabis industry,
we will hold ourselves to the following minimum standards:
Access points shall:
1. Pay all governmental liabilities that are incurred as a result of doing business in
Washington State. These include:
a. Business & Occupation taxes.
b. Employment taxes.
c. Federal income tax.
d. Retail tax should be paid unless this is contrary to the advice of the access point's
legal counsel.
2. Carry standard business liability insurance.
3. Require all staff members that handle medicine to obtain Food Handler's Permits.
4. Adhere to strict initial verification standards before patient obtains medicine including:
a. Checking valid Government issued ID.
b. Checking tamper proof recommendation.
c. Verifying patient recommendation via
i. online check for active doctors license by using
1. www.doh.wa.gov.
ii. phone or online verification with doctors' office.
5. Adhere to Care Providers policies including:
a. Bringing patient in to facility for the first visit.
b. Requiring Care Provider Documentation, Medical power of attorney preferred
c. Access points are not required to accommodate care providers.
6. Adhere to crime prevention standards including:
a. Positively engaging with communities and business neighbors.
b. Maintaining a comprehensive security system including:
i. camera system(s).
ii. alarm system(s).
iii. panic button(s).
c. Possessing no firearms on premises.
d. Requiring a minimum of one locked door between public and medicine.
7. Adhere to policies for patients under age 18 including:
a. Requiring one verified legal guardian who is designated as care provider to be
present at all times.
b. Requinng care providers to make transactions and carry out medicine.
c. Access points are not required to accommodate patients under 18.
8. Secure any patient files by keeping hard copies under lock and key for staff access only
and maintaining secure encryption protocols for electronic files.
9. Maintain tasteful and professional advertising, which does not target minors.
10. Create and maintain policies for quality control of medicine including:
a. Visual inspection.
b. Requiring producer to use non -systemic pesticides during flower cycle.
c. Requiring producer to control pathogens including:
i. Mites / Thrips / Other Pests
Coalition for Cannabis Standards and Ethics
Access Point Subcommittee
ii. Molds / Mildew
iii. Animal hair / Other foreign adulterants
11. Require that all medicine is produced in Washington State.
12. Adhere to Chapter 70.160 RCW: Smoking in public places (formerly Washington clean
indoor air act).
13. Provide physical accessibility to patients by maintaining ADA compliance.
Medical Cannabis Facts Sheet
A 2002 review of medical literature by Franjo Grotenhermen states that medical cannabis has
established effects in the treatment of nausea, vomiting, premenstrual syndrome, unintentional weight
loss, insomnia and lack of appetite. Other "relatively well -confirmed" effects were in the treatment of
"spasticity, painful conditions, especially neurogenic pain, movement disorders, asthma,
[and]glaucoma".
Preliminary findings indicate that cannabis -based drugs could prove useful in treating adrenal
disease, inflammatory bowel disease,migraines, fibromvalgia, and related conditions. °
Medical cannabis has also been found to relieve certain symptoms of multiple sclerosis1211 and spinal cord
iniuries[22112311241[251126j by exhibiting antispasmodic and muscle -relaxant properties as well as stimulating
appetite.
Other studies state that cannabis or cannabinoids may be useful in treating alcohol abuse,amyotrophic
lateral sclerosis,1281291collagen-induced arthritis,j301 asthma,311 atherosclerosis,L321 bipolar
disorder,13311341 colorectal cancer,' HIV-associated sensory
neuropathy,' depression,j371f38Ur39l4OI dystonia, 4t epilepsy,(42114311441 digestive
diseases, 45 gliomas,1461`471 hepatitis C,1481Huntinoton's disease 149u5o1 leukemia,' skin
tumors v methicillin-resistant Staphylococcus aureus (MRSA), 3 Parkinson's
disease,U pruritus,J5511561 posttraumatic stress disorder (PTSD),U psoriasis,1581 sickle-cell
disease, sleep apnea,L1 and anorexia nervosa.L'-1 Controlled research on treatingTourette
syndrome with a synthetic version of THC called (Marinol), showed the patients taking the pill had a
beneficial response without serious adverse effects;l`=2J other studies have shown that cannabis "has no
effects on tics and increases the individuals inner tension". u Case reports found that cannabis helped
reduce tics but validation of these results requires longer, controlled studies on larger samples.16411651
A study done by Craig Reinarman surveyed people in California who used cannabis found they did so for
many reasons. Reported uses were for pain relief, muscle spasms, headaches, anxiety, nausea,
vomiting, depression, cramps, panic attacks, diarrhea, and itching. Others used cannabis to improve
sleep, relaxation, appetite, concentration or focus, and energy. Some patients used it to prevent
medication side effects, anger, involuntary movements, and seizures, while others used it as a substitute
for other prescription medications and alcohol.J5-°
Studies
Safety of cannabis
Main article: Long-term effects of cannabis
From The Lancet, "There are no confirmed published cases worldwide of human deaths from cannabis
poisoning, and the dose of THC required to produce 50% mortality in rodents is extremely high compared
with other commonly used drugs". i
According t0 Associate Professor Emeritus of Psychiatry at Harvard Medical School Lester Grinspoon,
"When cannabis regains its place in the US Pharmacopeia, a status it lost after the passage of
the Marijuana Tax Act of 1937, it will be seen as one of the safest drugs in that compendium".v
There are medical reports of occasional infarction, stroke and other cardiovascular side
effects.0 Marijuana's cardiovascular effects are not associated with serious health problems for most
young, healthy users.0 Researchers have reported in the International Journal of Cardiology, "Marijuana
use by older people, particularly those with some degree of coronary artery or cerebrovascular disease,
poses greater risks due to the resulting increase in catecholamines, cardiac workload, and
carboxyhemoglobin levels, and concurrent episodes of profound postural hypotension. Indeed, marijuana
may be a much more common cause of myocardial infarction than is generally recognized. In day-to-day
practice, a history of marijuana use is often not sought by many practitioners, and even when sought, the
patient's response is not always truthful. Thus, clinicians should be more vigilant in inquiring about use of
marijuana in their patients, particularly among the younger adults who may present with cardiac events in
the absence of cardiovascular disease or other obvious risk factors."u
A 2012 study published in JAMA and funded by National Institutes of Health looked at a population of
over 5,115 American men and women to see whether smoked cannabis has effects on the pulmonary
system similar to those from smoking tobacco. The researchers found "Occasional and low cumulative
marijuana use was not associated with adverse effects on pulmonary function." Smoking an average of
one joint a day for seven years, they found, did not worsen pulmonary health.v
Cannabis smoke contains thousands of organic and inorganic chemical compounds. This tar is
chemically similar to that found in tobacco smoke or cigars. Over fifty knowncarcinogens have been
identified in cannabis smoke. -1 These include nitrosamines, reactive aldehydes, and polycylic
hydrocarbons, including benz[a]pyrene.Marijuana smoke was listed as a cancer agent in California in
2009.
A 2006 study involving 1,212 incident cancer cases and 1,040 cancer -free controls found no causative
link to oral, laryngeal, pharyngeal, esophageal or lung cancer when adjusting for several confounding
factors including cigarette smoking and alcohol use.0
Regarding the relative safety of cannabis, former US DEA chief administrative law judge Judge Francis
Young said:
"There is no record in the extensive medical literature describing a proven, documented
cannabis -induced fatality. ... Despite [a] long history of use and the extraordinarily high numbers
of social smokers, there are simply no credible medical reports to suggest that consuming
marijuana has caused a single death. In practical terms, marijuana cannot induce a lethal
response as a result of drug-related toxicity.... Marijuana's therapeutic ratio is impossible to
quantify because it is so high.... Marijuana, in its natural form, is one of the safest therapeutically
active substances known to man."47711unreliabie source?)
Pain relief
The effectiveness of cannabis as an analgesic has been the subject of numerous studies. University
of Oxford doctors found that the brain on THC showed reduced response to pain, suggesting that the
drug may help patients endure pain. Brain scans showed reduced activity in two centers of the brain
where pain is registered: The mid -Anterior cingulate cortex and the right Amyqdala. However,
cannabis did not block the sensation of pain like morphine -based pain killers.0 The researchers also
found a great degree of variation among individual reports of pain relief.
According to Stuart Silverman, M.D., a rheumatologist at Cedars -Sinai Medical Center, "Historically
and anecdotally, marijuana has been used as a painkiller".m A Canadian study showed cannabis
can reduce "nerve pain" from surgical complications or injuries. The study's twenty-one subjects
suffered from chronic pain and patients who smoked cannabis with a 9.4% THC content reported less
pain than those patients who smoked the placebo. Improved quality of sleep and reduced anxiety
were other reported benefits.vlgor Grant, psychiatrist and director of the Center for Medicinal
Cannabis Research at the University of California San Diego, has stated, "There is good evidence
now that cannabinoids may be either an adjunct or a first-line treatment". Grant explained further that
not everyone experienced pain relief, but the percentage of people who did was comparable to those
who said that they experienced relief from other medications commonly prescribed for neuropathic
pain (the subject of his study), such as antidepressants.
A small-scale UCSF study found that patients with chronic pain may experience greater relief
if cannabinoids were added to an opiate -only treatment regime. The findings further suggested that
combination therapy could result in reduced opiate dosages. 83 The College of Physicians and
Surgeons at Columbia University, U.S. published a study in theNeuropsychopharmacologyjournal in
2013 that is based on research that was conducted with fifteen males and fifteen females who
smoked marijuana every day. The study's subjects were exposed to either a placebo, inhaled
marijuana, or dronabinol, a pill that contains cannabis' psychoactive ingredient. Participants were
monitored to ensure that they had not smoked in the time period immediately prior to the tests and
did not have other drugs (including alcohol) in their systems. The researchers concluded that
"Dronabinol administration decreased pain sensitivity and increased pain tolerance that peaked later
and lasted longer relative to smoked marijuana", thereby providing evidence that the pill form was
superior to smoked cannabis in terms of pain relief efficacy. However, the Columbia researchers
further stated, "A primary caveat of the current findings is that the study population consisted of daily
marijuana smokers; this study limitation should be considered when interpreting the findings and
placing them within the context of the potential therapeutic feasibility of cannabinoids [for the general
population].i ea
Antiemetic
Several studies have established the antiemetic effects of cannabinoids in the treatment
of chemotherapy induced nausea and vomiting (CINV).v Comparative studies have found
cannabinoids to be more effective than some conventional anti emetics such
as prochlorperazine, promethazine, and metoclopramide in controlling CINV.0 Their use is generally
limited by the high incidence of side effects, such as dizziness, dysphoria, and
hallucinations.18711881 Cannabinoids are considered reserve medications in the treatment of nausea and
vomiting induced by cvtostatics.0
Glaucoma
In glaucoma, cannabis and THC have been shown to reduce intra-ocular pressure (IOP) by an
average of 24% in people with normal IOP who have visual -field changes. In studies of healthy adults
and glaucoma patients, IOP was reduced by an average of 25% after smoking a cannabis "cigarette"
that contained approximately 2% THC—a reduction as good as that observed with most other
medications available today, according to a review by the Institute of Medicine.m
In a separate study, the use of cannabis and glaucoma was tested and found that the duration of
smoked or ingested cannabis or other cannabinoids is very short, averaging 3 to 3.5 hours. Their
results showed that for cannabis to be a viable therapy, the patient would have to take in cannabis in
some form every 3 hours. They said that for ideal glaucoma treatment it would take two times a day
at most for compliance purposes from patients.1-52 Due to these limitations, the American Glaucoma
Society, in a statement in 2009, did not recommend marijuana yet as a viable glaucoma treatment,
even if it expressed hope that "marijuana or related compounds could protect the optic nerve not only
through IOP [intra ocular pressure] lowering but also through a neuroprotective mechanism." 91
Spasticity in multiple sclerosis
A review of six randomized controlled trials of a combination of THC and CBD extracts for the
treatment of multiple sclerosis (MS) related muscle spasticity reported, "Although there was variation
in the outcome measures reported in these studies, a trend of reduced spasticity in treated patients
was noted." The authors postulated that "cannabinoids may provide neuroprotective and anti-
inflammatory benefits in MS."U A small study done on whether or not cannabis could be used to
control tremors of MS patients was conducted. The study found that there was no noticeable
difference of the tremors in the patients. Although there was no difference in the tremors, the patients
felt as if their symptoms had lessened and their quality of life had improved. The researchers
concluded that the mood enhancing or cognitive effects that cannabis has on the brain could have
given the patients the effect that their tremors were getting better.1931r941
Alzheimer's disease
Research done by the Scripps Research Institute in California shows that the active ingredient in
marijuana, THC, prevents the formation of deposits in the brain associated with Alzheimer's disease.
THC was found to prevent an enzyme called acetylcholinesterase from accelerating the formation of
"Alzheimer plaques" in the brain more effectively than commercially marketed drugs. THC is also
more effective at blocking clumps of protein that can inhibit memory and cognition in Alzheimer's
patients, as reported in Molecular Pharmaceutics. u Cannabinoids can also potentially prevent or
slow the progression of Alzheimer's disease by reducing tau proteinphosphorylation, oxidative stress,
and neuroinflammation. 9s
A 2012 review from the Philosophical Transactions of a Royal Society B suggested that activating the
cannabinoid system may trigger an "anti -oxidant cleanse" in the brain by removing damaged cells
and improving the efficiency of the mitochondria The review found cannabinoids may slow decline in
age and disease -related cognitive functioning,19711981
Breast cancer
According to a 2007 and a 2010 study at the California Pacific Medical Center Research
Institute, cannabidiol (CBD) stops breast cancer from spreading throughout the body by
downregulating a gene called ID1.r9911b001 This may provide a non-toxic alternative
to chemotherapy while achieving the same results without the painful and unpleasant side effects.
The research team says that CBD works by blocking the activity of a gene called ID1, which is
believed to be responsible for a process called metastasis, which is the aggressive spread of cancer
cells away from the original tumor site.J991rtool According to findings released by the team in 2012,
when the particularly aggressive "triple -negative" cells (which contain high levels of ID1 and account
for 15% of breast cancers) were exposed to CBD, they "not only stopped acting 'crazy' but also
returned to a healthy normal state". Human trial models are currently in development. iO' Dr Sean
McAllister, study co -leader, commented:102
"The preclinical trial data is very strong, and there's no toxicity. There's really a lot of research to
move ahead with and to get people excited"
HIV/AIDS
Investigators at Columbia University published clinical trial data in 2007 showing
that HIV/AIDS patients who inhaled cannabis four times daily experienced substantial increases
in food intake with little evidence of discomfort and no impairment of cognitive performance. They
concluded that smoked cannabis has a clear medical benefit in HIV-positive patients.11031no41In
another study in 2008, researchers at the University of California, San Diego School of
Medicine found that marijuana significantly reduces HIV-relatedneuropathic pain when added to
a patient's already-prescribed pain management regimen and may be an "effective option for
pain relief" in those whose pain is not controlled with current medications. Mood disturbance,
physical disability, and quality of life all improved significantly during study treatment. 05 Despite
management with opioids and other pain modifying therapies, neuropathic pain continues to
reduce the quality of life and daily functioning in HIV-infected individuals. Cannabinoid receptors
in the central and peripheral nervous systems have been shown to modulate pain perception. No
serious adverse effects were reported, according to the study published by the American
Academy of Neurology.106 A study examining the effectiveness of different drugs for HIV
associated neuropathic pain found that smoked Cannabis was one of only three drugs that
showed evidence of efficacy.'
Brain cancer
A study by Complutense University of Madrid found the chemicals in cannabis promote the death
of brain cancer cells by essentially helping them feed upon themselves in a process
called autophagy. The research team discovered that cannabinoids such as THC had anticancer
effects in mice with human brain cancer cells and in people with brain tumors. When mice with
the human brain cancer cells received the THC, the tumor shrank. Using electron microscopes to
analyze brain tissue taken both before and after a 26-to 30-day THC treatment regimen, the
researchers found that THC eliminated cancer cells while leaving healthy cells intact.a°-11The
patients did not have any toxic effects from the treatment; previous studies of THC for the
treatment of cancer have also found the therapy to be well tolerated.'oa
Opioid dependence
Injections of THC eliminate dependence on opiates in stressed rats, according to a research
team at the Laboratory for Physiopathology of Diseases of the Central Nervous System (France)
in the journal Neuropsychopharmacology.109 Deprived of their mothers at birth, rats become
hypersensitive to the rewarding effect of morphine and heroin (substances belonging to the
opiate family), and rapidly become dependent. When these rats were administered THC, they no
longer developed typical morphine -dependent behavior. In thestriatum, a region of the brain
involved in drug dependence, the production of endogenous enkephalins was restored under
THC, whereas it diminished in rats stressed from birth which had not received THC. Researchers
believe the findings could lead to therapeutic alternatives to existing substitution treatments. 1°9
In humans, drug treatment subjects who use cannabis intermittently are found to be more likely
to adhere to treatment for opioid dependence.10 Historically, similar findings were reported by
Edward Birch, who, in 1889, reported success in treating opiate and chloral addiction with
cannabis. "'
Controlling ALS symptoms
The potential role of cannabis in treating symptoms of ALS (or Lou Gehrig's Disease) has been
the subject of recent research. A survey was conducted on 131 people suffering from ALS. The
survey asked if the subjects had used cannabis in the last 12 months to control some of their
symptoms. Of the 131 subjects, 13 had used the drug in some form to control symptoms. The
survey found that cannabis was moderately effective in reducing symptoms of appetite loss,
depression, pain, spasticity, drooling and weakness, and the longest relief reported was for
depression. The pattern of symptom relief was consistent with those reported by people with
other conditions, including multiple sclerosis (Amtmann et al. 2004).
Crohn's Disease
A study published on May 6, 2013 in the journal Clinical Gastroenterology and
Hepatology revealed that subjects with Crohn's Disease experienced benefits from inhaled
cannabis use. At the completion of the study's treatment period, ten out of the eleven patients
that received cannabis treatment displayed substantial improvements in disease -related
symptoms, while five of these patients experienced complete remission. The study's authors
wrote: "... all patients in the study group expressed strong satisfaction with their treatment and
improvement in their daily function." The study was small, but was designed as a randomized
placebo-controlled clinical trial, the gold standard for a clinical trial.l121(131
Diabetes
A study published on May 16, 2013 in the Journal of American Medicine revealed that
regular marijuana use is associated with better glucose control. They found that current
marijuana users had significantly lower fasting insulin and were less likely to be insulin resistant,
even after excluding patients with a diagnosis of diabetes mellitus. Participants who reported
using marijuana in the past month had lower levels of fasting insulin and HOMA-IR and higher
levels of high-density lipoprotein cholesterol (HDL -C). These associations were weaker among
those who reported using marijuana at least once, but not in the past thirty days, suggesting that
the impact of marijuana use on insulin and insulin resistance exists during periods of recent use
The Study there were also significant associations between marijuana use and smaller waist
circumferences. " -I
Medicinal compounds
Cannabis contains 463 compounds. At least 80 of these are cannabinoids,115lm61which are the
basis for medical and scientific use of cannabis. This presents the research problem of isolating
the effect of specific compounds and taking account of the interaction of these
compounds.' -'Cannabinoids can serve as appetite stimulants, antiemetics,antispasmodics, and
have some analgesic effects. "$ Six important cannabinoids found in the cannabis plant are
tetrahydrocannabinol, tetrahydrocannabinolic acid cannabidiol, cannabinol, R-caryophyllene, and
cannabigerol.
Tetrahydrocannabinol
Main article: Tetrahydrocannabinol
CH2
Chemical structure oftetrahydrocannabinol (THC)
Tetrahydrocannabinol (THC) is the primary compound responsible for the psychoactive effects of
cannabis. The compound is a mild analgesic, and cellular research has shown the compound
has antioxidant activity. 119 THC is believed to interact with parts of the brain normally controlled
by the endogenous cannabinoid neurotransmitter, anandamideJ120111211 Anandamide is believed
to play a role in pain sensation, memory, and sleep.
Cannabidiol
Main article: Cannabidiol
H
Cannabidiol has been shown to relieveconvulsions inflammation, anxiety, cough, congestion and nausea,
and it inhibitscancer cell growth.122
Cannabidiol (CBD) is a major constituent of medical cannabis. CBD represents up to 40%
of extracts of medical cannabis.123 Cannabidiol has been shown to
relieve convulsion, inflammation, anxiety, cough, congestion and nausea, and it inhibits cancer
cellgrowth.t1221 Recent studies have shown cannabidiol to be as effective as atypical
antipsychotics in treating schizophrenia1124i and psychosis. tU Because cannabidiol relieves the
aforementioned symptoms, cannabis strains with a high amount of CBD may benefit people
with multiple sclerosis, frequent anxiety attacks and Tourette syndrome.r92 i22irizsi
Cannabinol
Main article: Cannabinol
Structure of cannabinol
Cannabinol (CBN) is a therapeutic cannabinoid found only in trace amounts in Cannabis
sativa and Cannabis indica»111 It is mostly produced as a metabolite, or a breakdown product,
of tetrahydrocannabinol (THC).0 CBN acts as a weak agonist of the CB1 and CB2receptors,
with lower affinity in comparison to THC.1129413o1
13-Caryophyllene
Main article: Caryophyllene
Chemical structure of j3-carvophvllene
Part of the mechanism by which medical cannabis has been shown to reduce
tissue inflammation is via the compound (3-caryophyllene. 731 A
cannabinoid receptor called CB2 plays a vital part in reducing inflammation in humans and other
animals.131 (3-Caryophyllene has been shown to be a selective activator of the CB2
receptor. 13-Caryophyllene is especially concentrated incannabis essential oil, which contains
about 12-35% 13-caryophyllene.13t
Cannabigerol
Main article: Cannabigerol
Like cannabidiol, cannabigerol is not psychoactive. Cannabigerol has been shown to relieve
intraocular pressure, which may be of benefit in the treatment of glaucoma.1132111331
O
Cannabigerol
Pharmacologic THC and THC derivatives
In the U.S., the FDA has approved several cannabinoids for use as medical
therapies: dronabinol (Marinol) and nabilone. These medicines are taken orally.
These medications are usually used when first line treatments for nausea and vomiting
associated with cancer chemotherapy fail to work. In extremely high doses and in rare cases
"psychotomimetic" side effects are possible. The other commonly used antiemetic drugs are not
associated with these side effects.
Marinol's manufacturer stated on their website• "The most frequently reported side effects in
patients with AIDS during clinical studies involved the central nervous system (CNS). These CNS
effects (euphoria, dizziness, or thinking abnormalities, for example) were reported by 33% of
patients taking MARINOL" 1134111351 Four documented fatalities resulting from Marinol have been
reported.1136111371
Canasol is a cannabis-based medication for glaucoma that relieves intraocular
pressure symptoms associated with late-stage glaucoma.
It was created by an ophthalmologist, Dr. Albert Lockhart and Dr. Manley E. West, and began
distribution in 1987.j1381r1391 As of 2003, it was still being distributed in the United Kingdom,
several U.S. states, and several Caribbean nations. 140
It is notable for being one of the first cannabis-containing pharmaceuticals to be developed for
the modern pharmaceutical market and being one of the few such pharmaceuticals to have ever
been legally marketed in the United States.113911411
The prescription drug Sativex, an extract of cannabis administered as a sublingual spray, has
been approved in Canada for the adjunctive treatment (use alongside other medicines) of
both multiple sclerosis and cancer related pain.11421r1431 Sativex has also been approved in the
United Kingdom, New Zealand, and the Czech Republic, and is expected to gain approval in
other European countries.11441i1451i1461 William Notcutt is one of the chief researchers that has
developed Sativex, and he has been working with GW and founder Geoffrey Guy since the
company's inception in 1998. Notcutt states that the use of MS as the disease to study "had
everything to do with politics." 147
ORDINANCE NO. C - 35037
An ordinance relating to marijuana use, medical cannabis collective garden
regulatory licensing and state -licensed marijuana producers, processors and retailers;
amending SMC sections 1.05.170 and 4.04.020; adopting a new section 8.02.0233 to
chapter 8.02 SMC; adopting new chapters 10.49 and 10.50 to Title 10 SMC and new
chapter 17C.347 to Title 17C of the Spokane Municipal Code; and declaring an
emergency.
WHEREAS, since 1970, federal law has prohibited the manufacture and
possession of marijuana as a Schedule I drug, based on the federal govemment's
categorization of marijuana as having a "high potential for abuse, lack of any accepted
medical use, and absence of any accepted safety for use in medically supervised
treatment." Gonzales v. Reich, 545 U.S. 1, 14 (2005), Controlled Substance Act (CSA),
84 Stat. 1242, 21 U.S.C. 801 et seq; and
WHEREAS, Initiative Measure No. 692, approved by the voters of Washington
State on November 30, 1998, and now codified as chapter 69.51A RCW, created an
affirmative defense for "qualifying patients" to the charge of possession of marijuana
(cannabis); and
WHEREAS, the intent of Initiative 692 was that qualifying "patients with terminal
or debilitating illnesses who, in the judgment of their physicians, would benefit from the
medical use of marijuana, shall not be found guilty of a crime under state law,"(RCW
69.51A.005), but that nothing in the law "shall be construed to supersede Washington
state law prohibiting the acquisition, possession, manufacture, sale or use of marijuana
for non-medical purposes" (RCW 69.51A.020); and
WHEREAS, the Washington State Legislature passed ESSSB 5073 in 2011,
which provides that a qualifying patient or his/her designated care provider are
presumed to be in compliance, - and not subject to criminal or civil
sanctions/penalties/consequences, if they possess no more than fifteen (15) cannabis
plants, no more than twenty-four (24) ounces of usable cannabis (other qualifications
apply); and
WHEREAS, on April 29, 2011, former governor Christine Gregoire vetoed all of
the provisions of E2SSB 5073 relevant to medical marijuana dispensaries that would
have provided the legal basis for legalizing and licensing medical cannabis
dispensaries, processing facilities and production facilities, thereby making these
activities illegal but left the provisions relating to cultivation of marijuana for medical use
by qualified patients individually and in collective gardens; and
WHEREAS, RCW 69.51A.085 permitted qualifying patients "to create and
participate in collective gardens for the purpose of producing, processing, transporting,
and delivering cannabis for medical use," provided no more than ten,qualifying patients
1
participate, a collective garden does not contain more than fifteen (15) plants per patient
up to a total of forty five (45) plants per garden, and the garden does not contain more
than twenty four (24) ounces of useable cannabis per patient and up to a total of
seventy two (72) ounces of useable cannabis; and
WHEREAS, under RCW 69.51A.060(1), it is a class 3 civil infraction to display
medical cannabis in a manner or place which is open to view of the general public,
which would include growing plants; and
WHEREAS, RCW 69.51A.140 authorizes cities to adopt and enforce zoning
requirements, business licensing requirements, health and safety requirements, and
business taxes pertaining to the production, processing, or dispensing of cannabis or
cannabis products within their jurisdictions and that nothing in chapter 181, Laws of
2011 is intended to limit the authority of cities to impose zoning requirements or other
conditions upon licensed dispensers, so long as such requirements do not preclude the
possibility of siting licensed dispensers within the jurisdiction; and
WHEREAS, pursuant to RCW 69.51A.130, no civil or criminal liability may be
imposed by any court on cities, towns, or counties or other municipalities and their
officers and employees for actions taken in good faith under chapter 69.51A RCW and
within the scope of their assigned duties.
WHEREAS, Initiative Measure No. 502, approved by the voters of Washington
State on November 6, 2012, calls for the establishment of a regulatory system licensing
producers, processors and retailers of recreational marijuana for adults twenty-one (21)
years of age and older, legalizes the possession and private recreational use of
marijuana and requires the Washington State Liquor Control Board to adopt procedures
and criteria by December 1, 2013 for issuing licenses to produce, process and sell
marijuana; and
WHEREAS, the establishment of additional medical cannabis collective gardens
in Tight of the preclusion of licensed dispensaries created by the veto by former
Governor Gregoire of portions of E2SSB 5073 and the pending implementation of
Initiative Measure No. 502 by the Washington State Liquor Control Board could create
inconsistent and incompatible land use activities and create unanticipated public health,
safety and welfare concerns; and
WHEREAS, the City of Spokane adopted Ordinance No. 34968 on February 25,
2013, imposing a moratorium on the establishment of medical cannabis collective
gardens and licensed dispensaries because of the impact on the public health safety
and welfare; and
WHEREAS, the Washington State Liquor Control Board has announced that it
will adopt its rules pertaining to the licensing of marijuana producers, processors and
retailers by October 16, 2013, with an effective date of November 16, 2013, begin
2
accepting applications for license types on November 18, 2013 and begin issuing
licenses to qualified applicants on December 1, 2013; and
WHEREAS, the City Council conducted a public hearing on April 15, 2013 as
required by Ordinance ' No. C-34968 to take public testimony regarding the
establishment of the moratorium; and
WHEREAS, the City Council and the City Plan Commission held a joint meeting
on May 16, 2013 to discuss the implementation of the work plan called for in the
Ordinance No. C-34968 establishing the moratorium; and
WHEREAS, the City Plan Commission held a workshop on July 10, 2013 to
review this proposed interim ordinance; and
WHEREAS, the City Council has studied the land use impacts collective gardens
and state -licensed marijuana producers, processors and retailers and has now prepared
this ordinance to address these impacts; and
WHEREAS, on July 15, 2013, the City Council held a public hearing on
Ordinance No. C-35008, regarding interim regulations relating to marijuana use,
medical cannabis collective garden regulatory licensing and state -licensed marijuana
producers, processor and retailers; and
WHEREAS, Ordinance C-35008 was passed by the City Council on July 15,
2013 establishing interim regulations for a ninety (90) day period and repealing the prior
moratorium established in Ordinance No. C-34968; and
WHEREAS, the City Plan Commission held a public hearing on September 11,
2013 regarding the adoption of a permanent ordinance regarding to marijuana use,
medical cannabis collective garden regulatory licensing and state -licensed marijuana
producers, processors and retailers and subsequently adopted recommendations to the
City Council regarding the ordinance; and
WHEREAS, the City Council finds that it is necessary to adopt this ordinance in
order to avoid unanticipated negative impacts on the community and the public health,
safety and welfare associated with medical cannabis collective gardens and state -
licensed marijuana producers, processors and retailers; and
WHEREAS, State Environmental Policy Act (SEPA) Checklists and
Determinations of Non -Significance were distributed on August 26, 2013 for the
proposed ordinance with the public appeal period for the SEPA determination ended on
September 10, 2013; and
WHEREAS, the City Council finds that the regulatory licensing requirements
established by this ordinance are necessary for the immediate preservation of the public
3
peace, health or safety and for the immediate support of city govemment and its
existing public institutions; -- Now, Therefore;
The City of Spokane does ordain:
Section 1. That there is adopted a new chapter 10.49 to Title 10 SMC to read as
follows:
Chapter 10.49
Medical Cannabis Collective Garden Regulatory License
Sections:
10.49.010 Findings
10.49.020 Purpose
10.49.030 Definitions
10.49.040 License Required
10.49.050 Application, Transfer and Renewal
10.49.060 Medical Cannabis Collective Garden Requirements
10.49.070 Violation
10.49.080 Nuisance Abatement
10.49.010 Findings
The city council adopts the preamble to this ordinance as findings to support this
chapter and further finds that nothing in this chapter 10.49 SMC shall be construed to
supersede Washington state or federal law pertaining to the acquisition, possession,
manufacture, sale or use of cannabis for nonmedical purposes. Nothing in this chapter
10.49 SMC shall be construed to supersede legislation prohibiting persons from
engaging in conduct that endangers others, or to condone the diversion of cannabis for
nonmedical purposes.
10.49.020 Purpose
The purpose of this medical cannabis collective garden regulatory license chapter is to
mitigate potential impacts of medical cannabis collective gardens as authorized under
chapter 69.51A RCW on nearby properties and to promote the public health, safety
welfare through coordinated implementation of zoning and licensing regulations of
medical cannabis collective gardens under chapter 69.51A RCW.
10.49.030 Definitions
Definitions established in chapters 69.50, 69.51, and 69.51A RCW and chapter 314-55
WAC are incorporated by reference in this chapter, including the following definitions:
A. "Collective garden" means those gardens authorized under RCW 69.51A.085,
which allows qualifying patients to assume responsibility for acquiring and
4
supplying the resources required to produce and process cannabis for medical
use.
B. "Designated provider" shall have the definition as provided in RCW
69.51A.010(1) as currently states oras may be amended.
C. "Marijuana" shall have the definition as provided in RCW 69.50.101(s) as
currently states or as may be amended.
D. "Marijuana processor" shall have the definition as provided in RCW 69.50.101(t)
as currently states or as may be amended.
E. "Marijuana producer" shall have the definition as provided in RCW 69.50.101(u)
as currently states or as may be amended.
F. "Marijuana retailer" shall have the definition as provided in RCW 69.50.101(w) as
currently states or as may be amended.
G. "Qualified patient" shall have the definition as provided in RCW 69.51A.010(4) as
currently states or as may be amended.
10.49.040 License Required
A. No person may operate a medical cannabis collective garden without first
obtaining a medical cannabis collective garden regulatory license under this
chapter.
B. The medical cannabis collective garden regulatory license is a class II license as
provided in chapter 4.04 SMC.
C. Anyone operating a medical cannabis collective garden pursuant to chapter
61.59A RCW is required to have a license or permit issued under this chapter. A
medical cannabis collective garden legally operating prior to the enactment of
this ordinance shall be allowed to continue to operate as long as the collective
garden submits an application for the medical cannabis collective garden
regulatory license as required by this chapter within thirty days from the
enactment of this ordinance.
D. The requirement to obtain a medical cannabis collective garden regulatory
license or a business registration or to comply with the regulatory and land use
zoning provisions of this chapter and chapter 17C.347 RCW shall not apply to a
medical cannabis'collective garden that:
1. meets the definition and provisions of RCW 69.51A.085,
2. does not operate on a commercial basis,
5
3. does not engage in any sales,
4. does not engage in any commercial activity, including any type of
advertising,
5. does not rotate more than five members of the collective garden within a
fifteen day period, and
6. engages only in private, unlicensed, noncommercial production,
possession, transportation, delivery, or administration of cannabis for
medical use pursuant to RCW 69.51A.025.
E. The provisions of this chapter do not apply to or affect the legal rights of an
ultimate user as authorized under RCW 69.50.101(z)(bb).
F. The issuance of a medical cannabis collective garden regulatory license under
this chapter, or the issuance of any other permit or license by the City, shall not
be deemed as approval or permission from the City to engage in any activity
deemed illegal under any applicable law, nor shall it constitute a determination by
the City that the manufacture, production, processing, retailing possession,
transportation, delivery, dispensing, application, or administration of and use of
marijuana engaged in by the licensee or permittee is either legal or illegal under
state or federal law.
10.49.050 Application, Transfer and Renewal
A. A medical cannabis collective garden regulatory license issued under this
chapter shall be obtained prior to operation of any business activity.
B. The application is filed and all applicable license fees are paid to the office of
taxes and licenses.
C. The chief of police, or designated license officer, shall not approve the license
until the application has been reviewed by the planning and development
services department and the fire department and verification has been provided
that all applicable requirements have been complied with. A determination
regarding the application shall be completed within thirty days from either the
date of the receipt by the city of the complete application, including all necessary
forms and affidavits, or thirty days from the date of the public hearing required by
SMC 10.49.050(L).
D. The applicant shall provide on the application, the names, dates of birth,
addresses and phone numbers for all officers and employees.
6
E. The license shall be on display on the premises at all times and shall be available
for access by lawi,enforcement during normal business hours.
F. If all requirement's, for approval. are satisfied, the license shall be issued by the
chief of police or designated licensing officer prior to the start of operations:
•
G. A license issued under thischapter is not transferable asto person or `place
H. Renewal. of License:
1. Application for _renewal, shalt be Made: no later than thirty- days prior to
expiration' of the' license. A Fdetermination. oh the renewal- application' shall
f
be completed within, thirty days;fromthe date,.of the receipt; by the city of
the complete application. • 4' t -•
he, license°.renewal, application 'Shall, only'.,be approved; by: the chief;of''.
police;:1 or..designated.:'license officer, following; a site inspection ''and
verification by the planning'and development services department and:fire
department= that' all. Cityrequirements have been" met:'.
•
A, medical; cannabie,'collective- garden- regulatory license ma
revoked or:denied if
ti
Any datum furnisheddon, the application isfalse' or` ie -not updated in
timely fash ion,,.._ ; • :• . `
•
The; structure;: facility 'or property ceases to comply with- all :
L. Prior to the issuance of a regulatory license for a medical cannabis collective
garden that was not legally operating prior to the enactment of this ordinance, the
chief of police, or' his designee, shall schedule a public hearing to take testimony
regarding the issuance of the license. A notice of the hearing on a form
prescribed by the City shall be delivered by the applicant to the recorded real
property owners and/or taxpayers located within five hundred feet of the
premises at least 'fourteen days prior to the hearing date.
10.49.060 Medical Cannabis Collective Garden Requirements
A. License Requirements for Operators.
It is unlawful to conduct, operate or maintain a medical cannabis collective
garden unless such premises has a current medical cannabis collective garden
regulatory license obtained in the manner prescribed in this chapter. "Premises"
includes all locations used by a collective garden to grow, store, process,
transport, or distribute medical cannabis to its qualified patients.
B. License Applicant Requirements.
License applicants and all persons who receive wages, fees, donations or
compensation of any kind for performing collective garden activities ("operators")
shall meet the following requirements:
1. Must be a qualified patient or designated provider of a qualified patient
and must, upon request by the City, submit valid documentation, or written
designation by a qualified patient with that patient's valid documentation
and proof of identification deemed acceptable by the office of taxes and
licenses.
2. Must be at least eighteen years of age.
3. Shall have no felony convictions of state or federal laws within the ten
years preceding or at any time subsequent to the date of application.
4. No one with law enforcement or regulatory authority related to medical
cannabis collective gardens employed by the City of Spokane shall be
permitted to obtain a medical cannabis collective garden regulatory
license.
C. Premises Requirements.
Collective garden premises shall operate in compliance with the following
conditions:
1. All premises or vehicles used or operated by the collective garden shall
have no greater aggregate quantities of cannabis, cannabis plants or
cannabis -containing products than are allowed under RCW 69.51A.085.
8
2. No more than ten qualifying patients may participate in a single collective
garden at any time. A copy of each qualifying patient's valid
documentation or proof of registration with the registry established in state
law (now or in the future), including a copy of the patient's proof of identity,
shall be available at all times on the premises of the collective garden.
3. No cannabis from the collective garden may be delivered to anyone other
than a qualifying patient participating in the collective garden or that
patient's designated provider.
4. No cannabis, cannabis plants or representations of cannabis plants shall
be used in' signage or advertising or be visible to public view.
5. From a public right of way, there shall be no exterior display of medical
cannabis cultivation visible outside of the premises.
6. A collective garden shall be entirely within a permanent enclosed structure
with a roof. The structure shall comply with all applicable code
requirements.
7. Areas where cannabis is grown, stored or dispensed shall be provided
with ventilation/air filtration systems so that no odors are detectable off the
premises.
8. All premises shall comply with the noise control requirements of SMC
10.08D.070.
9. No minors, shall be permitted on any collective garden premises unless
accompanied by a parent or guardian.
10. Consumption of cannabis, products containing cannabis or alcohol on the
premises is prohibited.
11. The premises shall be closed to any distribution of cannabis between the
hours of ten p.m. and seven a.m.
12. Any transportation or delivery of cannabis from a collective garden shall
be conducted by the garden members or designated provider. Delivery of
medical cannabis shall not exceed those quantities allowed by RCW
69.51A.040. Vehicles used to deliver cannabis may have the name of the
collective garden printed on the vehicle along with related identifying
information such as an address and phone number. There shall be no
depiction of cannabis, cannabis plants or representations of cannabis
plants used as signage or advertising on the vehicle.
9
13. The premises of the medical cannabis collective garden shall be identified
on the application and subsequently on the regulatory license by its
physical street address regardless of whether the product provided to the
members of the collective garden is delivered to the member or if the
member receives the product at the collective garden's physical location.
14. A licensed premise shall have installed on the premises a security and
alarm system that is monitored twenty-four hours a day to include a video
recording system that monitors production, storage and point of sale
areas. All video recordings shall be continuously recorded twenty-four
hours a day and shall be kept for a minimum of thirty days on the
licensee's recording device. All videos are subject to inspection by the City
police department upon request.
D. Land Use/Zoning Regulations.
Medical cannabis collective gardens shall comply with all applicable zoning and
land use regulations set forth in Title 17C SMC.
10.49.070 Violation
A. This chapter is subject to the administrative provision of chapter 4.04 SMC.
B. Licensees under this chapter shall comply with all state laws under chapter
69.51A RCW for medical marijuana.
C. A violation of this chapter is a class 1 civil infraction. Each day upon which a
violation occurs or is permitted to continue constitutes a separate violation.
10.49.080 Nuisance Abatement
In addition to any other available remedy or penalty, any violation of this chapter, is
declared to be a public nuisance per se, and may be abated under the applicable
provisions of the Spokane Municipal Code and state law.
Section 2. That there is adopted a new chapter 10.50 to Title 10 SMC to read as
follows:
Chapter 10.50
State -Licensed Marijuana Producers, Processors and Retailers
Sections:
10.50.010 Marijuana Producer, Processor and Retailer
A marijuana producer, processor or retailer licensed by the state of Washington liquor
control board shall be required to comply with all applicable regulations established by
10
the City including, but not limited to, all- building and fire code regulations and zoning
regulations and shall be required to provide a copy of the state -issued license to the
City upon request.
Section 3. That there is adopted a new chapter 17C.347 to Title 17C SMC to
read as follows:
Chapter 17C.347
Medical Cannabis Collective Garden or a Retail Outlet for Recreational Marijuana
Sections:
17C.347.010 Purpose
17C.347.020 Description
17C.347.030 Regulations for a Medical Cannabis Collective Garden and
State -Licensed Marijuana Producers, Processors and Retailers
17C.347.010 Purpose
This chapter provides zoning standards for the establishment of a medical cannabis
collective garden established pursuant to chapter 69.51A RCW and for producer,
processor and retailer of recreational marijuana licensed by the state pursuant to
chapter 314-55 WAC.
17C.347.020 Description
For the. purpose of describing activities and other characteristics of a medical cannabis
collective garden or a 'state -licensed recreational marijuana producer, processor or
retailer, the definitions of SMC 10.49.030 are applicable.
17C.347.030 Regulations for a Medical Cannabis Collective Garden and
State -Licensed Marijuana Producers, Processors and Retailers
A. City Zoning.
1. A medical cannabis collective garden shall comply with the requirements
of SMC 10.49.060.
a. No person may conduct business within the City as a medical
cannabis collective garden or a facility for delivery of cannabis
produced by the garden unless the medical cannabis collective
garden or a facility for delivery of cannabis produced by the garden
is located within the CC2, CC3, CB, GC, DTC, DTG, DTU, DTS, LI,
HI and PI Zones in accordance with Title 17 SMC. A medical
cannabis collective garden is classified as a Manufacturing and
Production land use as described in chapter 17C.190 SMC, Use
Category Descriptions. Manufacturing and Production uses are
11
limited as provided in Table 17C.120-1, Table 17C.130-1, and
Table 17C.124-1. In Table 17C.122-1, for Center and Corridor
Zones, a medical cannabis collective garden is classified as a
Limited Industrial land use and is subject to the standards for a
Limited Industrial use.
b. A licensed medical cannabis collective garden or facility for delivery
of cannabis produced by the garden may not be located within one
thousand feet of the perimeter of the grounds of any of the following
entities. The owner or operator of the medical cannabis collective
garden shall have the responsibility to demonstrate that the
collective garden is not within the one thousand foot perimeter:
i. elementary or secondary school;
ii. playground;
iii. recreational center or facility;
iv. child care center;
v. public park;
vi. public transportation center;
vii. library; or
viii. any game arcade where admission is not restricted to
persons age twenty-one or older.
c. The prohibition set forth in subsection (1) (a) and (b) above shall
not apply to a medical cannabis collective garden legally operating
prior to the enactment of this ordinance that is going to convert from
a collective garden to a state -licensed retailer.
d. Medical cannabis cultivation and sale are prohibited as a home
occupation and are not considered as an accessory use in
residential zones.
e. Notwithstanding the provisions of chapter 17C.210, an existing
collective garden in operation as of the effective date of this
ordinance shall be brought into full compliance with the provisions
of this chapter within one year of the effective date of the
ordinance.
2. State -Licensed Marijuana Producers, Processors and Retailers.
12
a. No person may conduct business within the City of Spokane as a
state -licensed marijuana producer, processor and retailer unless
they are located within the CC2, CC3, CB, GC, DTC, DTG, DTU,
DTS, LI, HI and PI Zones in accordance with Title 17 SMC and
licensed under this chapter. A state -licensed marijuana producer or
processor is classified as a Manufacturing and Production land use
as described in chapter 17C.190 SMC, Use Category Descriptions.
Manufacturing and Production uses are limited as provided in Table
17C.120-1, Table 17C.130-1, and Table 17C.124-1. In Table
17C.122-1, for Center and Corridor Zones, a state -licensed
marijuana producer or processor is classified as a Limited Industrial
land use and is subject to the standards for a Limited Industrial use.
A state -licensed marijuana retailer is classified as a Retail Sales
and Service land use as described in chapter 17C.190 SMC, Use
Category Descriptions. In Table 17C.122-1, for Center and Corridor
Zones, a state -licensed marijuana retailer is classified as a
Commercial land use and is subject to the standards for a
Commercial use.
b. A state -licensed marijuana producer, processor and retailer may
not be located within one thousand feet of the perimeter of the
grounds of any of the following entities. The owner or operator of
the state -licensed marijuana producer, processor and retailer shall
have the responsibility to demonstrate that the state -licensed
marijuana producer, processor and retailer is not within the one
thousand foot perimeter:
i. elementary or secondary school;
ii. playground;
iii. recreational center or facility;
iv. child care center;
v. public park;
vi. public transportation center;
vii. library; or
viii. any game arcade where admission is not restricted to
persons age twenty-one or older.
13
B. Waste products shall be disposed of in a secure manner that would prevent
exposure to the public or create a nuisance.
C. Measurement.
1. The measurement of the separation distance in subsection A.1.b and
A.2.b. above, shall be measured as the shortest straight line distance from
the property line of the production and processing facility, retail outlet or
collective garden to the property line of the entities listed in subsection
A(1)(b) and A(2)(b).
2. A protected use specified in subsection A(1)(b) and A(2)(b) above shall
not benefit from the separation requirements of this subsection if the use
chooses to locate within the required separation distance from a lawfully
located production or processing facility, collective garden or retailer
outlet.
Section 4. That SMC section 1.05.170 is amended to read as follows:
1.05.170 Penalty Schedule — Business Regulations
A. For each subsequent violation by a person the classification of infraction
advances by one class.
B. InfractionNiolation Class.
General.
SMC 4.04.020
SMC 4.04.060
SMC 8.01.070
SMC 10.40.020
r- -- ----------- --
SMC 8.12.020
SMC 1.05.170
PENALTY SCHEDULE — BUSINESS REGULATIONS
Violation
Class
Infraction
SMC 8.12.060
SMC 10.23A.030(G)
Engaging in licensed activity without license
Failure to display license or insigne
Engaging in business without registration or
itinerant vendor license or permit
3
No amusement device license, no amusement
device operators or owners license
No current list of amusement device locations
Entertainment facility establishment
operator/owner
14
1
3
3
1
SMC 10.25.010
SMC 10.29.010(A)
SMC 10.29.030
Pruning, planting, or removing a public tree
without a license
Conducting an improper blasting operation 1
Heating mechanic
1
1
'SMC 10.29.060(A) Providing fire equipment service without
Spokane Fire Department registration
1
SMC 10.34.020
,Own, operate for -hire vehicle
2
SMC 10.34.110(D)
Owner of for -hire vehicle, allowing a non -
licensed for -hire driver to operate his or her
,vehicle
r -
1
Owning, operating or maintaining a medical
SMC 10,49.040
1
cannabis collective garden —
FSMC 10.41A.040
Special police officer 2
TSMC 10.45.040
Deal in used goods 2
SMC 10.48.050
,Failure to register alarm system 2
SMC 10.48.170
Unlawful use of a security alarm system 3
SMC 13.02.0204
Solid waste collection or disposal
2
,SMC 17G.010.100(C)(3)
Sewer installation
1
Fireworks''
SMC 10.33A.020(A)(2)
Conducting public display without a permit
Up to
$1,000
SMC 10.41A.040
Employ non-commissioned special police officer
3
SMC 10.41A.090
Violation of code by special police officer 1
'Fire, Codi
IFC 105.6.14
Chapter 33 IFC
Chapter 10.33A SMC
SMC 17F.080.060
r
Manufacture, storage, use, sale, handling of
blasting agents, explosives without proper permit
1
IFC 105.6 Conducting regulated code activities, operations,
IFC 105.7 functions without permit
SMC 17F.080.060
2
IFC 105.6.41
Conducting spraying or dipping application of
flammable or combustible finishes (liquids or 2
acing
15
IFC 2703.3
'SMC 15.01.500
SMC 15.03.030
operations without a permit
Unauthorized release, discharge of flammable,
combustible liquids, petroleum waste products
Fail to comply with notice and order under
;Commute Trip Reduction Program
Fail to comply with requirement of posting
restaurant's smoking designation
Section 5. That SMC section 4.04.020 is amended to read as follows:
4.04.020 Activities Requiring Registrations and Licenses
1
2
2
A. A person, including principals and agents, needs a current and valid license
issued under this chapter to begin or to continue, directly or indirectly, any activity
provided for in Division 11 of Title 10 SMC, whether as a commercial business or
for nonprofit or charitable purposes.
B. Persons pursuing ordinary vocations and businesses on private property by
private means need a class I license and registration, for such activities as:
1. peddling merchandise, and
2. solicitation of money or things of value.
C. Persons conducting activities which have a potential to cause social or economic
evil, or useful occupations which may under certain circumstances become a
public or private nuisance offensive or dangerous to health, safety, morals, or
good order, need a class II license for such activities as:
1. maintaining places and devices of amusement, including teen clubs,
cabarets, and entertainment facilities;
2. keeping of animals;
3. building relocation;
4. certain contracting;
5. commercial use and sale of fireworks;
6. private or special police;
7. dealing in used goods; ((a 4))
16
8. operating for -hire vehicles. The for -hire license shall be issued by the City
of Spokane taxes and licenses division to coincide with the issuance of the
business registration through the Washington State business license
service. The for -hire license will have the same renewal date as the
business registration; and
9. owning, operating or maintaining a medical cannabis collective garden
pursuant to chapter 61.59A RCW.
D. Persons claiming a private right in or making extraordinary use of public property
need a class III license for such activities as:
1. moving buildings;
2. operating cable television;
3. certain contracting;
4. collecting garbage or commercial recyclables (SMC 13.02.0204);
5. distributing natural gas;
6. maintaining mechanical newspaper vendors;
7. parades, special events, and demonstrations;
8. operating telephone and telegraph equipment;
9. operating sidewalk cafes; and
10. doing commercial tree work.
Section 6. That there is adopted a new section 8.02.0233 to chapter 8.02 SMC to
read as follows:
8.02.0233 Medical Cannabis Collective Garden Regulatory License
The fee for a medical cannabis collective garden regulatory license under SMC
10.49.040 is two hundred and fifty dollars to support the regulatory program.
Section 7. Severability. If any provision of this ordinance, or its application to any
person, entity or circumstance, is for any reason held invalid, the remainder of the
ordinance, or the application of the provisions to other persons, entities or
circumstances, is not affected.
17
Section 8 Emergency Clause. This ordinance, passed by a majority plus one of
the whole membership of the City Council as a public emergency ordinance necessary
for the protection of the public peace, health, safety and property and for the immediate
support of city government and its existing institutions, shall be effective immediately
-,upon its passage.
PASSED by the City Council on
Council President
Attest: Approved as to form:
City Clerk Assistant City Attorney
Mayor Date
Effective Date
18
Environmental Checklist for ordinance relating to marijuana use,
medical cannabis collective garden regulatory licensing and state -licensed
marijuana producers, processors and retailers
File No. Non -Project
Purpose of Checklist:
The State Environmental Policy Act (SEPA) chapter 43.21C RCW, requires all governmental
agencies to consider the environmental impacts of a proposal before making decisions. An
Environmental Impact Statement (EIS) must be prepared for all proposals with probable
significant adverse impacts on the quality of the environment. The purpose of this checklist is to
provide information to help you and the agency identify impacts from your proposal (and to
reduce or avoid impacts from the proposal, if it can be done) and to help the agency decide
whether an EIS is required.
Instructions for Applicants:
This environmental checklist asks you to describe some basic information about your proposal.
Govemmental agencies use this checklist to determine whether the environmental impacts of
your proposal are significant, requiring preparation of an EIS. Answer the questions briefly, with
the most precise information known, or give the best description you can.
You must answer each question accurately and carefully, to the best of your knowledge. In
most cases, you should be able to answer the questions from your own observations or project
plans without the need to hire experts. If you really do not know the answer, or if a question
does not apply to your proposal, write "do not know" or "does not apply." Complete answers to
the questions now may avoid unnecessary delays later.
Some questions ask about governmental regulations, such as zoning, shoreline, and landmark
designations. Answer these questions if you can. If you have problems, the governmental
agencies can assist you.
The checklist questions apply to all parts of your proposal, even if you plan to do them over a
period of time or on different parcels of land. Attach any additional information that will describe
your proposal or its environmental effects. The agency to which you submit this checklist may
ask you to explain your answers or provide additional information reasonably related to
determining if there may be significant adverse impact.
Use of checklist for nonproject proposals:
Complete this checklist for nonproject proposals, even though questions may be answered
"does not apply."
IN ADDITION, complete the SUPPLEMENTAL SHEET FOR NONPROJECT ACTIONS (Part
D).
For nonproject actions, the references in the checklist to the words "project," "applicant," and
"property or site" should be read as "proposal," "proposer," and "affected geographic area,"
respectively.
1 OF 16
A. BACKGROUND
1. Name of proposed project, if applicable: City of Spokane ordinance relating to
marijuana use. medical cannabis collective garden regulatory licensing and
state -licensed marijuana producers, processors and retailers
2. Name of applicant: City of Spokane
3. Address and phone number of applicant or contact person: 3`d Floor, Spokane City
Hall. 808 West Spokane Falls Boulevard, Spokane, WA 99201-3329, (509) 625-6300.
4. Date checklist prepared: August 19, 2013
5. Agency requesting checklist: City of Spokane Planning and Development Services
Department
6. Proposed timing or schedule (including phasing, if applicable): A Plan Commission
hearing on this proposal will be held on September 11, 2013. Following the hearing
the Plan Commission will make a recommendation to the City Council. Then the
ordinance will be considered and acted upon by City Council and signed by the Mayor
if it is adopted.
7. a. Do you have any plans for future additions, expansion, or further activity related to
or connected with this proposal? If yes, explain. No,
b. Do you own or have options on land nearby or adjacent to this proposal? If yes,
explain. Not applicable. non -project action.
8. List any environmental information you know about that has been prepared, or will be
prepared, directly related to this proposal. A draft and final EIS were prepared for the
City of Spokane Comprehensive Plan adopted in 2001. Environmental checklists have
been prepared for each amendment to land use standards of the Spokane Municipal
Code as they have occurred following adoption of the Comprehensive Plan.
9. Do you know whether applications are pending for governmental approvals of other
proposals directly affecting the property covered by your proposal? If yes, explain.
None. Not applicable, non-proiect action.
10. List any government approvals or permits that will be needed for your proposal, if known.
The proposed ordinance requires approval of the Spokane City Council and Mayor.
11. Give brief, complete description of your proposal, including the proposed uses and the
size of the project and site. There are several questions later in this checklist that ask
you to describe certain aspects of your proposal. You do not need to repeat those
answers on this page. Amendments are proposed relating to marijuana use, medical
cannabis collective garden regulatory licensing andstate-licensed marijuana
producers, processors and retailers; amending SMC sections 1.05.170 and
4.04.020; adopting a new section 8.02.0233 to chapter 8.02 SMC; adopting new
chapters 10.49 and 10.50 to Title 10 SMC and new chapter 17C.347 to Title 17C
of the Spokane Municipal Code.
2 OF 16
12. Location of the proposal. Give sufficient information to a person to understand the
precise location of your proposed project, including a street address, if any, and section,
township and range, if known. If a proposal would occur over a range of area, provide
the range or boundaries of the site(s). Provide a legal description, site plan, vicinity
map, and topographic map, if reasonably available. While you should submit any plans
required by the agency, you are not required to duplicate maps or detailed plans
submitted with any permit application related to this checklist. In the City of Spokane,
within the zoning categories and subject to the spacing limitations stated in the draft
ordiance. '
13. Does the proposed action lie within the Aquifer Sensitive Area (ASA)? The General
Sewer Service Area? The Priority Sewer Service Area? The City of Spokane? (See:
Spokane County's ASA Overlay Zone Atlas for boundaries.) Yes, all of the above.
14. The following questions supplement Part A.
a. Critical Aquifer Recharge Area (CARA) / Aquifer Sensitive Area (ASA)
(1) Describe any systems, other than those designed for the disposal of sanitary waste,
installed for the purpose of discharging fluids below the ground surface (includes
systems such as those for the disposal of stormwater or drainage from floor drains).
Describe the type of system, the amount of material to be disposed of through the
system and the types of material likely to be disposed of (including materials which
may enter the system inadvertently through spills or as a result of firefighting
activities).
Not applicable, this is a non-proiect action.
(2) Will any chemicals (especially organic solvents or petroleum fuels) be stored in
aboveground or underground storage tanks? If so, what types and quantities of
material will be stored?
Not applicable, this is a non-proiect action.
(3) What protective measures will be taken to insure that leaks or spills of any
chemicals stored or used on site will not be allowed to percolate to groundwater.
This includes measures to keep chemicals out of disposal systems.
Not applicable, this is a non -project action.
(4) Will any chemicals be stored, handled or used on the site in a location where a
spill or leak will drain to surface or groundwater or to a stormwater disposal
system discharging to surface or groundwater?
Not applicable, this is a non -project action.
b. Stormwater
(1) What are the depths on the site to groundwater and to bedrock (if known)?
Not applicable, this is a non -project action.
(2) Will stormwater be discharged into the ground? If so, describe any potential
impacts?
Not applicable, this is a non -project action.
3 OF 16
TO BE COMPLETED BY APPLICANT
B. ENVIRONMENTAL ELEMENTS
1. Earth
Evaluation for
Agency Use
Only
a. General description of the site (circle one): flat, rolling, hilly, steep
slopes, mountains, other. The City of Spokane contains flat.
rolling. hilly and steep slope areas. The slopes range from 0 to
excess of 100 percent.
b. What is the steepest slope on the site (approximate percent
slope)? The steepest slopes in the City of Spokane are
approximately 100 percent; please see the Steep Slopes and
Geological Hazard Areas maps of the City of Spokane.
c. What general types of soils are found on the site (for example,
clay, sand, gravel, peat, muck)? If you know the classification of
agricultural soils, specify them and note any prime farmland.
Please see the "Soil Survey. Spokane County Washington. 1968"
for a list of soil classifications in the City of Spokane.
d. Are there surface indications or history of unstable soils in the
immediate vicinity? If so, describe. Yes, there are areas of
unstable soils in the City of Spokane. Please reference the
Geological Hazard Area maps of the City of Spokane.
e. Describe the purpose, type, and approximate quantities of any
filling or grading proposed. Indicate source of fill: There are no fills
or grading proposed directly related to this proposal, this is a non-
project action.
f. Could erosion occur as a result of clearing, construction, or use? If
so, generally describe. There should not be any erosion directly
related to this proposal. as this is a non -project action. Impacts
would be project based and would be evaluated on a project -by -
project basis.
g.
About what percent of the site will be covered with impervious
surfaces after project construction (for example, asphalt or
buildings)? Not applicable, this is a non -project action.
h. Proposed measures to reduce or control erosion or other impacts
to the earth, if any: The provisions of Spokane Municipal Code
require erosion control methods during and post construction. In
addition, the provisions of SMC 17E.040 regulate development in
Geologically Hazardous Areas.
40F16
2. Air
a. What type of emissions to the air would result from the proposal (Le.,
dust, automobile, odors, industrial, wood smoke) during construction
and when the project is completed? If any, generally describe and
give approximate quantities if known. Development permitted by the
zoning code" will generate emissions to the air. Impacts will be
evaluated as proiects are proposed. The proposed ordinance
requires areas where cannabis is grown, stored or dispensed to
be provided with ventilation/air filtration systems so that no
odors are detectable off the premises.
b. Are there any off-site sources of emissions or odor that may affect
your proposal? If so, generally describe. No, this is a non-proiect
action.
c. Proposed measures to reduce or control emissions or other
impacts to air, if any: This specific proposal contains no provisions
to reduce or control emissions.
3. Water
a. SURFACE:
(1) Is there any surface water body on or in the immediate vicinity of
the site (including year-round and seasonal streams, saltwater,
lakes, ponds,' wetlands)? If yes, describe type and provide names.
If appropriate, state what stream or river it flows into.
Yes. the Spokane River and Latah Creek are located in the City of
Spokane. In iaddition, numerous seasonal streams are located in
the City. There are also a number of ponds and wetlands in the
City. Please see the maps of the DNR typed streams and
Wetlands from the National Wetland Inventory at the City of
Spokane for their locations.
(2) Will the project require any work over, in, or adjacent to (within 200
feet) the described waters? If yes, please describe and attach
available plans. No. Residential proiects will be reviewed in
accordance with the Shoreline Master Program (SMP) and
shoreline regulations of the SMC.
(3) Estimate the amount of fill and dredge material that would be
placed in or removed from the surface water or wetlands and
indicate the area of the site that would be affected. Indicate the
source of fill material.
There is no fillor dredge material that is proposed to be placed or
removed in relation to this proposal, this is a non-proiect action.
The development standards of the Shorelines Master Program
(SMP) and the Title 17E.070 (wetlands) of the SMC regulate the
filling and dredging of surface water and wetlands.
5oF16
Evaluation for
Agency Use
Only
(4) Will the proposal require surface water withdrawals or diversions?
Give general description, purpose, and approximate quantities if
known.
No. this proposal will not require surface water withdrawals or
diversions. This is a non -project action.
(5) Does the proposal lie within a 100 -year floodplain? Yes, portions
of the city lie with the 100 -year floodplain. If so, note location on
the site plan. Please see the FEMA (Federal Emergency
Management Agency) Floodplain maps for a complete listing of
sites within the 100 -near floodplain.
(6) Does the proposal involve any discharge of waste materials to
surface waters? If so, describe the type of waste and
anticipated volume of discharge.
No. this proposal does not involve any discharge of water
materials to surface waters. This is a non -project action.
b. GROUND:
(1) Will groundwater be withdrawn, or will water be discharged to
groundwater? Give general description, purpose, and approximate
quantities if known.
No, groundwater will not be withdrawn or discharged as a result
of this proposal. This is a non -project action.
(2) Describe waste material that will be discharged into the ground
from septic tanks or other sanitary waste treatment facility.
Describe the general size of the system, the number of houses
to be served (if applicable) or the number of persons the
system(s) are expected to serve.
Not applicable, this is a non -project action.
c. WATER RUNOFF (INCLUDING STORMWATER):
(1) Describe the source of runoff (including stormwater) and method
of collection and disposal if any (include quantities, if known).
Where will this water flow? Will this water flow into other waters?
If so, describe.
Not applicable, this is a non -project action.
(2) Could waste materials enter ground or surface waters? If so,
generally describe.
Not applicable. this is a non-proiect action.
d. PROPOSED MEASURES to reduce or control surface, ground,
and runoff water impacts, if any.
6 OF 16
Evaluation for
Agency Use
Only
The provisions of SMC 17D.060 Stormwater Facilities regulates
stormwater and requires appropriate on-site storage and disposal.
New development is reviewed under these regulations and required to
build appropriate stormwater facilities.
4. Plants
Evaluation for
a. Check or circle type of vegetation found on the site: Agency Use
X Deciduous tree: alder, maple, aspen, other. Only
X Evergreen tree: fir, cedar, pine, other.
X Shrubs
X Grass
X Pasture
X Crop or grain
X Wet soil plants, cattail, buttercup, bullrush, skunk cabbage, other.
X Water plants: water filly, eelgrass, milfoil, other.
Other types of vegetation.
b. What kind and amount of vegetation will be removed or altered?
No vegetation is proposed to be removed or altered as part of this
proposal, this is a non -project action.
c. List threatened or endangered species known to be on or near the
site. Not -applicable, this is a non-proiect action.
d. Proposed landscaping, use of native plants, or other measures to
preserve or enhance vegetation on the site, if any: Not -applicable,
this is a non -project action.
5. Animals
a. Circle any birds and animals which have been observed on or near
the site are known to be on or near the site: Not -applicable, this is
a non-proiect action.
birds: hawk, heron, eagle, songbirds, other
mammals: deer, bear, elk, beaver, other
fish: bass, salmon, trout, herring, shellfish, other
other.
b. List any threatened or endangered species known to be on or near
the site. Not -applicable, this is a non-proiect action.
c. Is the site part of a migration route? If so, explain. Not -applicable,
this is a non-proiect action.
d. Proposed measures to preserve or enhance wildlife, if any:
7 OF 16
The provisions of Spokane Municipal Code Section 17E.020 Fish
and Wildlife Habitat contain development standards for the
protection of animals listed as threatened, endangered and priority
species.
6. Energy and natural resources
a. What kinds or energy (electric, natural gas, wood stove, solar)
will be used to meet the completed project's energy needs?
Describe whether it will be used for heating, manufacturing, etc.
Not applicable, this is a non -project action.
b. Would your project affect the potential use of solar energy by
adjacent properties? If so, generally describe. Not applicable,
this is a non -project action.
c. What kinds of energy conservation features are included in the
plans of this proposal? List other proposed measures to reduce
or control energy impacts, if any: Not applicable, thisis a non-
proiect action.
7. Environmental health
a. Are there any environmental health hazards, including exposure
to toxic chemicals, risk of fire and explosion, spill, or hazardous
waste that could occur as a result of this proposal? If so,
describe. No, this proposal is a non-proiect action and should
not directly increase the risk of any of these hazards. Hazards
will be addressed as a part of the building/occupancy permit
review.
(1) Describe special emergency services that might be required.
Not applicable. this is a non-proiect action.
(2) Proposed measures to reduce or control environmental health
hazards, if any: Not applicable, this is a non -project action.
b. NOISE:
(1) What types of noise exist in the area which may affect your project
(for example: traffic, equipment, operation, other)?
Not applicable, this is a non-proiect action.
(2) What types and levels of noise would be created by or associated with
the project on a short-term or a Tong -term basis (for example: traffic,
construction, operation, other)? Indicate what hours noise would come
from the site.
Not applicable, this is a non-proiect action.
(3) Proposed measure to reduce or control noise impacts, if any:
Not applicable, this is a non-proiect action.
8oF16
Evaluation for
Agency Use
Only
8. Land and shoreline use
a. What is the current use of the site and adjacent properties?
Not applicable. this is a non-proiect action.
b. Has the site been used for agriculture? If so, describe.
Not applicable. this is a non -project action.
c. Describe any structures on the site
Not applicable, this is a non-proiect action.
d. Will any structures be demolished? If so, which?
Not applicable. this is a non -project action.
e. What is the current zoning classification of the site?
Not applicable. this is a non-proiect action.
f. What is the current comprehensive plan designation of the site? _
Not applicable. this is a non-proiect action.
g.
If applicable, what is the current shoreline master program
designation of the site?
Not applicable, this is a non -project action.
h. Has any part of the site been classified as a critical area? If so,
specify.
Not applicable, this is a non-proiect action.
i. Approximately how many people would reside or work in the
completed project?
Not applicable, this is a non -project action.
J•
Approximately how many people would the completed project
displace?
Not applicable, this is a non -project action.
k. Proposed measures to avoid or reduce displacement impacts, if
any: Not applicable. this is a non -project action.
I. Proposed measures to ensure the proposal is compatible with
existing and projected land uses and plans, if any: Not applicable,
this is a non -project action.
9. Housing
a. Approximately how many units would be provided, if any? Indicate
whether high, middle or low-income housing. Not applicable, this is
a non-proiect action.
9 OF 16
Evaluation for
Agency Use
Only
b. Approximately how many units, if any, would be eliminated?
Indicate whether high-, middle- or low-income housing. Not
applicable, this is a non -project action.
c. Proposed measures to reduce or control housing impacts, if any:
Not applicable, this is a non -project action.
10. Aesthetics
a. What is the tallest height of any proposed structure(s), not
including antennas; what is the principal exterior building
material(s) proposed? Not applicable, this is a non -project action.
b. What views in the immediate vicinity would be altered or
obstructed? Not applicable, this is a non -project action.
c. Proposed measures to reduce or control aesthetic impacts, if any:
Not applicable, this is a non-proiect action.
11. Light and Glare
a. What type of Tight or glare will the proposal produce? What time of
day would it mainly occur? Not applicable, this is non-proiect
action.
b. Could Tight or glare from the finished project be a safety hazard or
interfere with views? Not applicable this is a non-proiect action.
c. What existing off-site sources of Tight or glare may affect your
proposal? Not applicable, this is non -project action.
d. Proposed measures to reduce or control light and glare impacts, if
any: Not applicable, this is non-proiect action.
12. Recreation
a. What designated and informal recreational opportunities are in the
immediate vicinity? Not applicable, this is non -project action.
b. Would the proposed project displace any existing recreational
uses? If so, describe. Not applicable, this is non-proiect action.
c. Proposed measures to reduce or control impacts on recreation,
including recreation opportunities to be provided by the project or
applicant, if any: Not applicable, this is non -project action.
13. Historic and cultural preservation
10 OF 16
Evaluation for
Agency Use
Only
a. Are there any places or objects listed on, or proposed for, national,
state, or local preservation registers known to be on or next to the
site? If so, generally describe. Not applicable, this is non-proiect
action.
b. Generally describe any landmarks or evidence of historic
archaeological, scientific or cultural importance known to be on or
next to the site. Not applicable, this is non -project action.
c. Proposed measures to reduce or control impacts, if any: Not
applicable. this is non -project action.
14. Transportation
a. Identify public streets and highways serving the site, and describe
proposed access to the existing street system. Show on site plans,
if any. Not applicable, this is non -project action.
b. Is the site currently served by public transit? If not, what is the
approximate distance to the nearest transit stop? Not applicable,
this is non -prosect action.
c. How many parking spaces would the completed project have?
How many would the project eliminate? Not applicable, this is a
non -project action.
d. Will the proposal require any new roads or streets, or
improvements to existing roads or streets not including driveways?
If so, generally describe (indicate whether public or private). Not
applicable. this is a non-proiect action.
e. Will the project use (or occur in the immediate vicinity of) water, rail
or air transportation? If so, generally describe. Not applicable, this
is a non -project action.
f. How many vehicular trips per day would be generated by the
completed project? If known, indicate when peak would occur. Not
applicable, this is a non -project action.
g.
(Note: to assist in review and if known indicate vehicle trips during PM
peak, AM Peak and Weekday (24 hours).)
Proposed measures to reduce or control transportation impacts, if
any: Not applicable, this is non -project action.
15. Public services
a. Would the project result in an increased need for public services (for
example: fire protection, police protection, health care, schools,
other)? If so, generally describe. This proposal is a non -project
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action and should not directly increase the need for fire, police,
health care or school services.
b. Proposed measures to reduce or control direct impacts on public
services, if any: Impacts of new proposed developments will be
addressed at the time of permit application.
16. Utilities
a. Circle utilities currently available at the site: electricity, natural gas,
water, refuse service, telephone, sanitary sewer, septic system,
other. Not applicable, this is non-proiect action.
b. Describe the utilities that are proposed for the project, the utility
providing the service and the general construction activities on the
site or in the immediate vicinity which might be needed. Not
applicable, this is a non-proiect action.
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C. SIGNATURE
I, the undersigned, swear under penalty of perjury that the above responses are made truthfully
and to the best of my knowledge. I also understand that, should there be any willful
misrepresentation or willful lack of full disclosure on my pa , the agency must withdraw any
determination of Nonsignificance that it might issue in r_:„, - ,, .r.n this checklist.
Date: 8. 21a • 1 3 Signature:
Please Print or Type:
Proponent: City of Spokane Address: 808 West Spokane Falls
Phone: (509) 625-6300
Boulevard, Spokane, WA, 992201-3329
Person completing
form (if different
from proponent): Ken Pelton, AICP Address:808 West Spokane Falls
Phone: (509) 625-6300
Boulevard, Spokane, WA 992201-3329
FOR STAFF USE ONLY
Staff member(s) reviewing checklist: Ken Pelton, AICP
Based on this staff review of the environmental checklist and other pertinent
information, the staff concludes that:
A. there are no probable significant adverse impacts and recommends a Determination
of Nonsignificance.
B. probable significant adverse environmental impacts do exist for the current proposal
and recommends a Mitigated Determination of Nonsignificance with conditions.
C. there are probable significant adverse environmental impacts and recommends a
Determination of Significance.
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D. SUPPLEMENTAL SHEET FOR NONPROJECT ACTIONS
(Do not use this sheet for project actions)
Because these questions are very general, it may be helpful to read them in
conjunction with the list of elements of the environment.
When answering these questions, be aware of the extent the proposal, or
the types of activities likely to result from the proposal, would affect the item
at a greater intensity or at a faster rate than if the proposal were not
implemented. Respond briefly and in general terms.
1. How would the proposal be likely to increase discharge to water;
emissions to air; production, storage or release of toxic or hazardous
substances; or production of noise?
The proposal would not directly increase discharge to water, emissions to
air, the production and storage of toxic or hazardous substances or noise.
Proposed measures to avoid or reduce such increases are:
No such measures are included in this proposal.
2. How would the proposal be likely to affect plants, animals, fish or marine
life?
This proposal is unlikely to directly affect native plants and animals.
Proposed measures to protect or conserve plants, animals, fish or
marine life are:
No measures are proposed to specifically address the conservation of
plants and animals in this proposal. However, the SMC includes
standards related to protection of critical areas and habitat.
3. How would the proposal be likely to deplete energy or natural
resources?
The proposed code amendments will not directly affect energy or
natural resources.
Proposed measures to protect or conserve energy and natural resources
are:
The proposed code updates do not directly address energy and natural
resource conservation.
4. How would the proposal be likely to use or affect environmentally
sensitive areas or areas designated (or eligible or under study) for
governmental protection, such as parks, wilderness, wild and scenic
rivers, threatened or endangered species habitat, historic or cultural
sites, wetlands, flood plains or prime farmlands?
This proposed code amendments will not directly affect environmentally
sensitive areas. New development will be subiect to the critical area
standards of the SMC.
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Proposed measures to protect such resources or to avoid or reduce
impacts are:
No new measures are proposed. Proiect impacts will be addressed at
the time of permit application in accordance with the standards of the
Spokane Municipal Code.
5. How would the proposal be likely to affect land and shoreline use,
including whether it would allow or encourage land or shoreline uses
incompatible with existing plans?
New proiects that are allowed under the proposed amendments are
required to meet the shoreline development standards.
Proposed measures to avoid or reduce shoreline and land use impacts
are:
No additional measures are proposed.
6. How would the proposal be likely to increase demands on transportation
or public services and utilities?
Impacts of new development will be addressed at the time of
development permit approval.
Proposed measures to reduce or respond to such demand(s) are:
None have been identified.
7. Identify, if possible, whether the proposal may conflict with local, state
or federal laws or requirements for the protection of the environment.
The proposal should not conflict with local, state or federal laws or
requirements for the protection of the environment.
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C. SIGNATURE
I, the undersigned, swear under penalty of perjury that the above responses are made truthfully
and to the best of my knowledge. I also understand that, should there be any willful
misrepresentation or willful lack of full disclosure on my part, the agency may withdraw any
Determination of Nonsignificance that it might issue in relies- po this checklist.
Date: 6-z69- 13 Signature:
Please Print or Type:
Proponent: City of Spokane
Phone: (509) 625-6300
• Person completing
form (if different
from proponent): Ken Pe{ton, AICP
Phone: (509) 625-6300
Address: 808 West Spokane Falls
Boulevard, Spokane. WA, 992201-3329
Address:808 West Spokane Falls
Boulevard, Spokane, WA 992201-3329
FOR STAFF USE ONLY
Staff member(s) reviewing checklist: Ken Pelton, AICP
Based on this staff review of the environmental checklist and other pertinent
information, the staff concludes that:
A. X there are no probable significant adverse impacts and recommends a Determination of
Nonsignificance.
B. _ probable significant adverse impacts do exist for the current proposal and
recommends a Mitigated Determination of Nonsignificance with conditions.
C. _ there are probable significant adverse environmental impacts and recommends a
Determination of Significance.
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