HomeMy WebLinkAboutO-2936 - Moratorium on production, sale and use of marijuana and marijuana products (Expired)CITY OF MARYSVILLE
Marysville, Washington
ORDINANCE aq 3 (p
AN ORDINANCE OF THE CITY OF MARYSVILLE, WASHINGTON,
ADOPTING A TWELVE (12) MONTH MORATORIUM WITHIN THE
CITY OF MARYSVILLE ON THE ESTABLISHMENT, SITING,
LOCATION, PERMITTING, LICENSING OR OPERATION OF
MARIJUANA CULTIVATION, PRODUCTION OF MARIJUANA
DERIVATIVES, AND THE SALE OF MARIJUANA OR MARIJUANA
DERIVATIVES OR ANY OTHER ACTIVITIES ASSERTED TO BE
AUTHORIZED OR ACTUALLY AUTHORIZED UNDER WASHINGTON
STATE INITIATIVE NO. 502 OR ANY OTHER LAWS OF THE STATE OF
WASHINGTON AND SETTING A DATE FOR A PUBLIC HEARING ON
THE MORATORIUM, ADOPTING A WORK PLAN, PROVIDING FOR
SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, Initiative Measure No. 502 (I-502), approved by the voters of Washington
state on November 6, 2012, purports to legalize the production, sale and use of marijuana
products purchased from State licensed stores for adults age twenty-one (21) and over; and
WHEREAS, 1-502 Section 1 (3) authorizes the state liquor control board to regulate and
tax marijuana for persons twenty-one (21) years of age and older, and add a new threshold for
driving under the influence of marijuana; and
WHEREAS, I-502 Section 4 (1) allows the Washington State Liquor Control Board to
license marijuana to process, package and label usable marijuana and marijuana-infused products
for sale at wholesale to marijuana retailer;
WHEREAS, I-502 Section 4 (3) allows the Washington State Liquor Control Board to
license marijuana retailers to sell usable marijuana and marijuana-infused products at retail in
retail outlets; and
WHEREAS, I-502 Section 6 (7) states that before the Washington State Liquor Control
Board issues a new or renewed license to an applicant, it must give notice to the application to
the chief executive officer of the incorporated city, and the city has the right to file its written
objection to such licenses within 20 days after transmittal of the notice of application, but the
Board makes the final decision whether to issue a License; and
WHEREAS, I-502 Section 6(8) establishes certain limitations on the Washington State
Liquor Control Board's issuance of licenses for any premises that are within 1,000 feet of the
perimeter of the grounds of any elementary school or secondary school, playground, recreati on
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facility, child care center, public park, public transit center or library, or any game arcade,
admission to which is not restricted top persons aged twenty-one (21) years or older; and
WHEREAS, I-502 Section 9 contemplates that the Washington State Liquor Control
Board will adopt rules to implement the provisions of 1-502, which includes the equipment and
management of retail outlets and premises where marijuana is produced and processed, and the
inspection of same; methods of producing, processing, and packaging the marijuana and
marijuana products; security requirements at such establishments; retail outlet locations and
hours of operation; labeling requirements and restrictions on advertising of such products;
licensing and licensing renewal rules; the manner and method to be used by licensees to transport
and deliver marijuana and marijuana products (among other things); and
WHEREAS, I-502 Section 10 contemplates that the Washington State Liquor Control
Board will adopt procedures and criteria by December 1, 2013 for issuing licenses to produce,
process and sell marijuana (among other things) and
WHEREAS, I-502 Section 13 limits the number ofretail outlets to be licensed in each
county, for the purpose of making useable marijuana and marijuana-infused products available
for sale to adults twenty-one (21) years of age or over; and
WHEREAS, I-502 decriminalizes, for purposes of state law, the production,
manufacture, processing, packaging, delivery, distribution, sale or possession of marijuana, as
long as such activities are in compliance with I-502; and
WHEREAS, at this point in time, the City of Marysville does not have specific
regulations addressing the facilities or uses identified in I-502, other than the requirement for a
general business license; and
WHEREAS, I-502 prohibits anyone from engaging in the activities identified in I-502
without first obtaining a license from the Washington State Liquor Control Board; and
WHEREAS, the uses described in I-502 have never been allowed in any state or city in
the United States, and City needs time to study the secondary land use impacts of these
marijuana uses and the various development standards that should be considered to mitigate
these impacts before adoption of any regulatory ordinance or issuance of any business license;
and
WHEREAS, the Marysville City Council hereby finds that a moratorium to preserve the
status quo is necessary, until the State Liquor Control Board definitively acts to establish a final
and complete set of rules for the licensing of all of the new marijuana facilities and uses
identified in I-502, and until the City can study, draft, hold public hearings and adopt the
appropriate land use and/or licensing regulations to address these new uses; and
WHEREAS, RCW 36.70A.390 authorizes the City Council to adopt an immediate
moratorium for a period of up to twelve months if a public hearing on the proposal is held within
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at least sixty days of its adoption and a work plan is developed for related studies providing for
the twelve-month moratoria period; and
WHEREAS, the City Council desires to impose an immediate twelve month moratorium
on the acceptance of any development permit application or business license or application for
the siting, location or operation of any marijuana processor, marijuana producer, or marijuana
retailer; and
WHEREAS, RCW 69 .51 A. 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 marijuana or marijuana products
within their jurisdiction; and
WHEREAS, RCW 36. 70A.390 provides that, "A county or city governing body that
adopts a moratorium, interim zoning map, interim zoning ordinance, or interim official control
without holding a public hearing on the proposed moratorium, interim zoning map, interim
zoning ordinance, or interim official control, shall hold a public hearing on the adopted
moratorium, interim zoning map, interim zoning ordinance, or interim official control within at
least sixty days of its adoption, whether or not the governing body received a recommendation
on the matter from the planning commission or department. lfthe governing body does not adopt
findings of fact justifying its action before this hearing, then the governing body shall do so
immediately after this public hearing. A moratorium, interim zoning map, interim zoning
ordinance, or interim official control adopted under this section may be effective for not longer
than six months, but may be effective for up to one year if a work plan is developed for related
studies providing for such a longer period. A moratorium, interim zoning map, interim zoning
ordinance, or interim official control may be renewed for one or more six-month periods if a
subsequent public hearing is held and findings of fact are made prior to each renewal"; and
WHEREAS, 35.63.200 provides a similar process as described above for adopting and
extending land use moratoriums; and
WHEREAS, moratoriums enacted under RCW 36.70A.390 and/or RCW 35.63.200 are
methods by which local governments may preserve the status quo so that new plans and
regulations will not be rendered moot by intervening development; and
WHEREAS, the Marysville Municipal Code does not currently have specific provisions
addressing licensing, producing, processing or retailing of recreational marijuana; and
WHEREAS, in conformity with the responsibilities of the City of Marysville to meet
public health, safety and welfare requirements and provide zoning and land use regulations
pursuant to state law, and the City's authority to regulate land use activity within its corporate
limits, the City intends to develop appropriate public health, safety and welfare requirements and
zoning and land use regulations for the establishment of facilities producing, processing and
retailing of recreational marijuana; and
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WHEREAS, the City Council has determined it needs additional time to conduct
appropriate research to analyze the effects of the pending rules and regulations to be established
by the Washington State Liquor Control Board pursuant to I-502; and
WHEREAS, a moratorium will provide the City with additional time to review and
amend its public health, safety and welfare requirements and zoning and land use regulations
related to the establishment of facilities producing, processing and retailing recreational
marijuana as authorized by I-502; and
WHEREAS, the City Council concludes that the City does have authority to establish a
moratorium and that the City must adopt a moratorium concerning the filing , acceptance, and
processing of new land use applications or licensing for the establishment of, or operation of, any
facility, building or premises used for the production, processing or retailing of recreational
marijuana, to protect the health, safety and welfare of the citizens of Marysville; and
WHEREAS, In addition, the cultivation, possession or distribution of cannabis
marijuana, and marijuana products has been and continues to be a violation of federal law
through the Controlled Substances Act ("CSA"); and
WHEREAS, the activities purported to be legalized under Initiative Measure No. 502
remain violations of federal law through the Controlled Substances Act, and the United States
Supreme Court in Gonzales v. Raich, 545 U.S. I, (2005) which held that the CSA's categorical
prohibition of the manufacture and possession of marijuana as applied to the intrastate
manufacture and possession of marijuana for medical purposes superseded a conflicting
California State law; and
WHEREAS, two U.S. Attorneys (Federal Department of Justice) situated in Washington
have gone on record stating that marijuana is a Schedule I controlled substance under federal
law, and as such, growing, distributing and possessing marijuana in any capacity other than as
part of a federally authorized research program is a violation of federal law, regardless of state
laws permitting such activities, and also concluded publicly that local governmental employees
who conducted marijuana regulatory activities under Washington State law are subject to
prosecution under the CSA; and
WHEREAS, in 2012, the Board of Clark County Washington Commissioners requested
a determination from the federal government whether such enforcement efforts would extend to
local government activities implementing Washington state laws on marijuana, where those laws
conflict with the CSA, and the responsive letter from Joseph T. Rannazzisi, Deputy Assistant
Administrator, Office of Division Control, U.S. Department of Justice, Drug Enforcement
Administration, states that anyone who knowingly carries out the marijuana activities
contemplated by Washington state law which are inconsistent with the CSA, as well as anyone
who facilitates such activities, or conspires to commit such violations of the CSA, is subject to
criminal prosecution as provided in the CSA, including both local elected officials and local
government staff; and
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WHEREAS, the recently approved Initiative Measure No. 502 does not appear to change
the basis for the analysis by the U.S. Attorneys, and any State or local officials who undertake
marijuana regulatory activities remain subject to federal prosecution; and
WHEREAS, because prior to the passage oflnitiative Measure No. 502, the possession
or distribution of marijuana was a violation of both the Washington Uniform Controlled
Substances Act and a violation of the federal CSA, the City has not studied or implemented
zoning for uses involving the production or distribution of marijuana; and
WHEREAS, the City requires time to conduct appropriate research to understand the
extent and validity of the changes provided in the new law to analyze impacts and potential
liabilities under federal law and to determine an appropriate regulatory framework for the uses
and activities that are allowed under Initiative Measure No. 502; and
WHEREAS, in addition to the legal issues, the City must study, without limitation, the
impacts of the location of uses and facilities for the production, sale and use of marijuana
products and the siting of marijuana cultivation facilities, facilities for the creation of marijuana
products, and State licensed marijuana stores in commercial and residential zones, as well as
impacts arising from the proximity of these uses, activities and facilities to schools, day cares,
parks, religious and cultural facilities, and accordingly the City Council finds that a zoning,
licensing and permitting moratorium should be established pending local review of appropriate
locations and design requirements of these operations and impacts of the newly amended law and
its interaction with federal law; and
WHEREAS, the City Council adopts the foregoing as its findings of facts justifying the
adoption of this ordinance;
NOW THEREFORE, the City Council of the City of Marysville, Washington do ordain
as follows:
Section 1. Preliminary Findings.
The recitals and findings set forth above are hereby adopted as the City Council preliminary
findings in support of the moratorium imposed by this ordinance in compliance with RCW
36.?0A.390 and RCW 35.63.200. The City Council may in its discretion adopt additional
findings at the conclusion of the public hearing referenced in Section 6 below.
Section 2. Moratorium Imposed.
Pursuant to Washington State law, a moratorium is hereby enacted prohibiting within the City of
Marysville the establishment, siting, location, operation, licensing, or maintenance of facilities,
structures, businesses or any other activities involving the production, sale and use of marijuana
and marijuana products asserted to be authorized or actually authorized under Washington State
Initiative No. 502 or any other laws of the state of Washington (Marijuana Business). No
building permit, occupancy permit, or other development permit or approval shall be issued for
any of the purposes or activities listed above and no business license shall be granted or accepted
while this moratorium is in effect. Any land use permits, business licenses, or other permits for
any of these operations that are issued as a result of error or by use of vague or deceptive
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descriptions in any license or development application during the moratorium are null and void
and without legal force or effect.
Section 3. Definition of Marijuana Use.
As used in this ordinance the following list of terms shall have the meaning set forth below:
Marijuana Definitions.
"Marijuana Use" includes any store, agency, organization, dispensary, cooperative,
network consultation, operation, or other business entity, group or person, no matter how
described or defined, including any associated premises and equipment which has for its
purpose or which is used to grow, select, measure, process, package, label, deliver,
dispense, sell or otherwise transfer for consideration, or otherwise, marijuana in any
form.
"Cannabis or Marijuana" means all parts of the plant Cannabis, whether growing or not,
with a THC concentration greater than 0.3 percent on a dry weight basis; the seeds
thereof; the resin extracted from any part of the plant; and every compound, manufacture,
salt, derivative, mixture or preparation of the plant, its seeds or resin. For the purposes of
this Ordinance, "cannabis" or "marijuana" does not include the mature stalks of the plant,
fiber produced from the stalks, oil or cake made from the seeds of the plant, any other
compound, manufacture, salt, derivative, mixture or preparation of the mature stalks,
except the resin extracted therefrom, fiber, oil, or cake, or the sterilized seed of the plant
which is incapable of germination.
"Marijuana processer" means a person licensed by the State Liquor Control Board to
process marijuana into useable marijuana and marijuana-infused products, package and
label usable marijuana and marijuana-infused products for sale in retail outlets, and sell
usable marijuana and marijuana-infused products as wholesale to marijuana retailers.
"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.
"Marijuana-infused products" means products that contain marijuana or marijuana
extracts and are intended for human use. The term "marijuana infused products" does not
include useable marijuana.
"Marijuana retailer" means a person licensed by the State Liquor Control Board to sell
usable marijuana and marijuana-infused products in a retail outlet.
"Retail outlet" means a location licensed by the State Liquor Control Board for the retail
sale of useable marijuana and marijuana-infused products.
"Usable marijuana" means dried marijuana flowers. The term "usable marijuana" does
not include marijuana-infused products.
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Section 4. No Nonconforming Uses.
No use that constitutes or purports to be a Marijuana Use as that term is defined in this ordinance
that was engaged in that activity prior to the enactment of this ordinance shall be deemed to have
been a legally established use under the provisions of the Marysville Municipal Code and that
use shall not be entitled to claim legal nonconforming status.
Section 5. Effective Period for Moratorium.
The moratorium set forth in this ordinance shall be in effect for a period of twelve (12) months
from the date this ordinance is passed and shall automatically expire at the conclusion of that
twelve (12) month period unless the same is extended by the City as provided in State law or
unless terminated sooner by ordinance.
Section 6. Public Hearing.
The City Council held a public hearing at the regular City Council meeting of September 9, 2013
at 7:00 p.m. in order to take public testimony.
Section 7. Work Program.
The work plan is attached as Exhibit A to this ordinance. The City Administrator and other
responsible staff are hereby authorized to study and address issues related to determining the
legality of Marijuana Uses as defined herein, including but not limited to review of the pending
dispute between State and federal law enforcement authorities regarding the legality of
Marijuana Uses under any circumstances and notwithstanding the adoption of Initiative Measure
No. 502. In the event that such uses are ultimately determined to be legal, the work program
should also develop appropriate land use regulations pursuant to the newly amended law, for
review and recommendation for inclusion in the zoning regulations or other provisions of the
Marysville Municipal Code, including business licensing and other regulations for review for
inclusion in the Marysville Municipal Code.
Section 8. Severability. If any section, subsection, paragraph, sentence, clause, or phrase of this
ordinance or its application to any person or situation should be held to be invalid or
unconstitutional for any reason by a court of competent jurisdiction, such invalidity or
unconstitutionality shall not affect the validity or constitutionality of the remaining portions of
this ordinance or its application to any other person or situation.
Section 9. Effective Date.
This Ordinance shall become affective five (5) days following passage and publication as
required by law.
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PASSED by the City Council and APPROVED by the Mayor this 94-'I day of 3i_pie~nV~Ol 3.
::TE@~
Apnl O'Brien, Deputy City Clerk
Approved as to form: si)~ (,,}_g/J
· Grant Weed, City Attorney
Date of Publication: qj (I {
Effective Date : qjz;J:;·
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Exhibit A-Recreational Marijuana Regulations Work Plan
Date* Step Principle or Reqnirement
September 9, City Council public hearing to Moratorium Ordinance
2013 consider work plan, draft
12 months effective from date of passage-regulations and adoption of
moratorium for twelve (12) months. through 9/8/14.
Washington State Liquor Control
October 16, 2013 Board (WSLCB) adoption of Rulemaking process proposed rules concerning Initiative
502
November 16, WSLCB rules become effective Rulemaking process 2013
November 18-WSLCB accepts applications for
December 18, producer, processor and retail 1-502 timeline for implementation
2013 licenses
Committee review (Committee Review of adopted WSLCB rules and
November 12, composed of Council, Planning preliminary information compiled and
2013 Commission, citizens/businesses) reviewed by Community Development,
Legal and Police staff.
December 17, Committee recommendation on Recommendation to Planning
2013 draft regulations Commission
December 30, Notice of intent to amend Final adoption 60 days after notice or 30
2013 development regulations sent to days if expedited review is allowed;
Dept. of Commerce February I or March I, 2014
January 10, 2014 SEP A determination 14-day comment/appeal period ending
January 24, 2014
Planning Commission workshop on
January 28, 2014 permanent regulations and
committee recommendations
March 11, 2014 Planning Commission public I 0 day notice before hearing required hearing
City Council workshop and
April 7/14, 2014 potential public hearing on I 0 day notice before hearing required
proposed regulations
9/09/13 Marysville work plan.doc
Exhibit A-Recreational Marijuana Regulations Work Plan
April 19, 2014 Ordinance published Saturday after the Monday City Council
meeting
April 24, 2014 Effective date of ordinance 5 days after publication
Date Permanent Regulations Re• nired to be Adopted
September 8, 12 months after moratorium
2014 adopted
*Some dates may be subject to change based on scheduling needs of the Planning Commission
and/or City Council and the City Council may adjust such dates by motion at meetings open to
the public
9/09/13 Marysville work plan.doc