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HomeMy WebLinkAboutCAP 2013-07-08 Item 2B - Ordinance - Marijuana Processing, Producing and Retailing MoratoriumTO: City of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM Mayor Haggerton Community Affairs and Parks FROM: Jack Pace, Department of Community Development Director BY: Stacy MacGregor, Assistant Planner DATE: June 26, 2013 SUBJECT: Establishment of a Moratorium on Marijuana Processing, Producing and Retailing. ISSUE Should the City establish a moratorium on recreational marijuana producers, processors, and retailers? BACKGROUND In the fall of 2012, the Washington voters passed Initiative 502 (1-502), which directs the Washington State Liquor Control board (LCB) to regulate (recreational) marijuana producers, processers and retailers. On May 17th, the Liquor Control Board released draft rules regarding the implementation of 1-502. On June 10th, the LCB announced a revised timeline for final adoption of regulations. The final rules are set to go into effect on September 14th, with applications for licenses being accepted during a 30-day window from mid-September to mid- October. The LCB will begin issuing licenses on December 1, 2013. This is sooner than expected and necessitates a moratorium while new code provisions are drafted to allow the city to consider the primary and secondary impacts of recreational commercial marijuana as a use. Under the draft rules, a local jurisdiction will be notified when a license application is filed with the LCB and the city will have 20 days to file written objections. The LCB's siting criteria will prohibit recreational marijuana commercial uses generally within 1,000 feet of schools, parks, recreation centers, transit centers, libraries, game arcades and child care centers. The Tukwila City Council may wish to create a zoning overlay to allow commercial recreational marijuana use only in certain zones in the city and/or subject to certain location standards. A local ordinance cannot preempt a state law to outright prohibit a use and the state statute may not preempt a local ordinance if the statute and the ordinance are not in conflict. DISCUSSION Given that the state is establishing a licensing mechanism for recreational marijuana, and, given the State Liquor Control Board will adopt final rules for 1-502 implementation only two and one- months before issuing licenses, and, given that the impacts of 1-502 have not been fully explored; it would is prudent to adopt a moratorium to allow the city time to draft a zoning code ordinance to coordinate city code with 1-502. FINANCIAL IMPACT None. 15 16 INFORMATIONAL MEMO Page 2 RECOMMENDATION The Committee is being asked to forward the ordinance to the July 22, 2013 Committee of the Whole meeting and subsequent August 5, 2013 Regular Meeting and direct the Director of Community Development to draft zoning code amendments for council consideration to implement 1-502. ATTACHMENTS Draft Ordinance W:\2013 Info Memos-Council\REC MJ.doc RAFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, ESTABLISHING A 6-MONTH MORATORIUM ON THE ESTABLISHMENT, LOCATION, OPERATION, LICENSING, MAINTENANCE OR CONTINUATION OF MARIJUANA PRODUCERS, PROCESSORS, AND RETAILERS AS REGULATED PURSUANT TO WASHINGTON STATE INITIATIVE 502; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City of Tukwila has the authority to adopt a moratorium pursuant to RCW 35A.63.220; and WHEREAS, on November 6, 2012, Initiative 502 was passed by the voters of the State of Washington, providing a framework under which marijuana producers, processors, and retailers can become licensed by the State of Washington; and WHEREAS, Initiative 502 directs the Washington State Liquor Control Board (WSLCB) to develop rules and regulations to: 1. Determine the number of producers, processors and retailers of marijuana by county; 2. Develop licensing and other regulatory measures; 3. Issue licenses to producers, processors, and retailers at locations which comply with the Initiative's distancing requirements prohibiting such uses within 1,000 feet of schools and other designated public facilities; and 4. Establish a process for the City to comment prior to the issuance of such licenses; and WHEREAS, the WSLCB is expected to adopt new regulations on recreational marijuana on August 14, 2013, and to begin issuance of marijuana producer, processor and retail licenses to qualified applicants in December 2013; and WHEREAS, Section 69.51A.140 RCW delegates authority to cities and towns to adopt and enforce zoning requirements, business licensing requirements, health and safety requirements, and business taxes as exercises of the City's police powers; and W: Word Processing \Ordinances\Moratorium on marijuana producers-processors-retailers 6-26-13 SM:bjs Page 1 of 4 17 WHEREAS, marijuana production, processing, and retailing uses must be addressed in the City's zoning code, but the land use and secondary impacts of these uses are still largely unknown and the regulations that the City will need to address them are uncertain pending the Washington State Liquor Control Board's adoption of its licensing regulations and procedures; and WHEREAS, unless the City acts immediately to address marijuana-related uses, such uses may be able to locate in the City without regulation and thereby have adverse impacts on the City and its citizens; and WHEREAS, the City deems it in the public interest to impose a moratorium for a period of six months in order to investigate this issue further and obtain regulatory clarity and guidance from the WSLCB's rules; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Moratorium Established. The City hereby establishes a moratorium on the establishment of marijuana producers, processors, and retailers asserted to be authorized under Initiative No. 502. Section 2. Public Hearing. Pursuant to RCW 35A.63.220 and following adequate public notice, a public hearing was held on July 22, 2013 to hear testimony regarding the City's moratorium. Section 3. Duration. The moratorium herein shall be in effect until six months from the effective date noted below, unless extended by the City Council, pursuant to state law. Section 4. Definitions. As used in this ordinance, the following terms have the meanings set forth below: 1. "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. The term 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. W: Word Processing\Ordinances\Moratorium on marijuana producers-processors-retailers 6-26-13 SM:bjs 18 Page 2 of 4 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. 3. "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. 4. "Marijuana retailer" means a person licensed by the state liquor control board to sell useable marijuana and marijuana-infused products in a retail outlet. 5. "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. 6. "Useable marijuana" means dried marijuana flowers. The term "useable marijuana" does not include marijuana-infused products. Section 5. No Non-conforming Uses. No use that constitutes or purports to be a marijuana producer, marijuana processor, or marijuana retailer, as those terms are 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 Tukwila Municipal Code and that use shall not be entitled to claim legal non- conforming status. Section 6. Adoption of Findings of Fact. The City Council adopts as its preliminary findings the recitals set forth above. The Council may adopt additional findings in the event that additional evidence is presented to the City Council. Section 7. Work Program. The Director of Community Development and/or his/her designee is hereby authorized and directed to address issues related to determining the legality of marijuana production facilities, processing facilities, and retailing facilities, including but not limited to review of the conflict between state and federal law regarding the legality of zoning and licensing of recreational marijuana uses under any circumstances and notwithstanding the enactment by the legislature of Initiative 502. The work program should also develop appropriate land use regulations pursuant to the new state law and state licensing requirements for review and recommendation for inclusion in the zoning regulations or other provisions of the Tukwila Municipal Code. Such regulations shall permit the location of marijuana producers, marijuana processors, and marijuana retailers in the City to the extent, but only to the extent, authorized by state law and then only when in compliance with state licensing requirements and City regulations. Further, appropriate nuisance declaration and abatement provisions should be developed to address any violations of any new state or City regulations or licensing requirements. Such regulations shall be presented W: Word Processing\Ordinances\Moratorium on marijuana producers-processors-retailers 6-26-13 SM:bjs Page 3 of 4 19 to the Tukwila Planning Commission and Tukwila City Council for consideration and action in due course. The Finance Director and/or his/her designee is hereby authorized and directed to develop appropriate business licensing and other regulations pursuant to the newly amended law for review and recommendation for inclusion in the zoning regulations or other provisions of the Tukwila Municipal Code. Section 8. Corrections by City Clerk or Code Reviser. Upon approval of the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; references to other local, state or federal laws, codes, rules, or regulations; or ordinance numbering and section/subsection numbering. Section 9. 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 10. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force five days after passage and publication as provided by law. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of , 2013. ATTEST/AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk Jim Haggerton, Mayor APPROVED AS TO FORM BY: Shelley M. Kerslake, City Attorney Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: W: Word Processing\Ordinances\Moratorium on marijuana producers-processors-retailers 6-26-13 SM:bjs 20 Page 4 of 4