HomeMy WebLinkAboutPlanning 2013-07-25 Item 4 - PUBLIC HEARING: RECREATIONAL MARIJUANA - INFORMATIONAL MEMORANDUMCity of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO: Tukwila Planning Commission
BY: Jack Pace, Director DCD
Stacy MacGregor, Assistant Planner
DATE: July 17, 2013
SUBJECT: Establishment of Marijuana Processing, Producing and Retailing as
permitted uses in Tukwila Municipal Code, Title 18 Zoning.
ISSUE
Should the City establish zoning regulations for recreational marijuana producers, processors,
and retailers? This does not impact the possession and use of recreational marijuana and does
not impact the moratorium in effect related to medical marijuana collective gardens and
dispensaries.
BACKGROUND
In the fall of 2012, the Washington voters passed Initiative 502 (1 -502), legalizing the
recreational use of marijuana and directing the Washington State Liquor Control board (LCB) to
regulate recreational marijuana producers, processers and retailers (see Attachment A). On
July 3rd, 2013, the Liquor Control Board released proposed rules regarding the implementation
of 1 -502. The rules are scheduled for adoption on August 14, 2013 and are set to go into effect
on September 14th. Before the rules take effect, the WSLCB will determine a "maximum
number of retail outlets that may be licensed in each county ". There will not be a cap on
producer and processor licenses. The WSLCB will begin accepting applications for all three
license types during a 30 -day window beginning on September 14. The LCB is expected to
begin issuing licenses on December 1, 2013.
1 -502 is silent regarding medical marijuana and is generally viewed as creating a separate
licensing process for recreational marijuana. The Washington State Legislature has adopted a
budget for 2014 with language that calls for the Liquor Control Board to work with the
Department of Health and Department of Revenue to develop recommendations regarding the
interaction of medical marijuana regulations and the provisions of Initiative 502. The City of
Tukwila's moratorium on medical marijuana is scheduled for renewal with the expectation that
new rules will be adopted by the state legislature during the 2014 legislative session at which
time the City will have updated state regulations to review and address.
The Federal Government's Controlled Substances Act (CSA) still prohibits the possession and
distribution of marijuana for any purpose.
INFORMATIONAL MEMO
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DISCUSSION
What is the City's role in the state process?
Initiative 502 was supported by 55.49% of Washington voters and 57% of Tukwila voters. In
only one out of Tukwila's 18 voting precinct did the "No" votes exceed the "Yes" votes and then
only by 3 out of 253 votes.
Under the proposed 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
map attached shows that this requirement will substantially limit production, processing, and
retailing to the north and south sides of the City. City staff has been told by staff at the
Association of Washington Cities that the WSLCB will not issue licenses for uses within
residential zones (see Attachment B). However, 1 -502 does not provide this siting restriction and
nothing in the draft rules imposes this restriction. Further, the City of Tukwila's home
occupation definition would not restrict recreational marijuana uses as home occupations. See
Attachment C for a map showing the 1,000 foot separation imposed by the WSLCB.
State law allows the City to adopt and enforce zoning requirements, business licensing
requirements, health and safety requirements, and business taxes as exercises of the City's
police powers. 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. Existing regulations provide basic protections against the location of incompatible uses
but the increased production, processing, selling, or delivery of marijuana likely to be spurred by
the new State regulations may create additional impacts. Experience in other jurisdictions with
medical marijuana dispensaries indicates that businesses containing usable marijuana or
marijuana- infused products may have greater security issues compared with the other
businesses. The production and possible processing of marijuana can create off -site odors and
growing marijuana indoors can have significant electricity needs. Residents and businesses
may be concerned that marijuana - related businesses can negatively impact neighborhood
character due to messaging on signs and the potential for robberies.
What are the City's options?
A. Do nothing. The City could decide not to adopt any regulations related to recreational
marijuana. This would mean that on September 14, 2013, applicants could apply to the
WSLCB for a license to produce, process, and sell recreational marijuana at locations
throughout the City. While the 1,000 foot setback from schools, parks, libraries, etc.
would still apply, marijuana retailers could locate in any zone in which retail uses are
allowed (MUO, RCC, NCC, RC, RCM, TUC C /LI, LI, HI, MIC/L1, MIC /H, and TVS
zones). Processors could locate where manufacturing, processing and /or packaging of
pharmaceuticals and related products, such as cosmetics and drugs are an allowed use
(NCO2, RC, RCM, TUC, C /LI, LI, HI, MIC /L, MIC /H, and TVS zones). Producers may be
1 Subject to additional, zone - specific regulations.
2 Subject to additional, zone - specific regulations.
INFORMATIONAL MEMO
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allowed as greenhouses and nurseries (RCC, NCC, RC, RCM, TUC, CL/I0, LI, and HI)
or farming and farm - related activities (TVS zone). Additionally, these uses could occur
in residential zones subject to the home occupation requirements which do not regulate
use.
B. Prohibit The City could prohibit (either on an interim or permanent basis) recreational
marijuana uses from locating within the City. The City Council is scheduled to hold a
public hearing on a moratorium prohibiting recreational marijuana uses within the City of
Tukwila on July 22, 2013. If adopted, this six month moratorium is intended to prevent
recreational marijuana uses from becoming legally vested while the City adopts
permanent development regulations. The moratorium is temporary but the WSLCB has
indicated that local moratoria will not be recognized in their licensing decisions. As
stated above, state law does not allow a local jurisdiction to prohibit a use and an
attempt at prohibition would likely be legally challenged.
C. Regulate. If the City wants to regulate marijuana -uses, its primary tool would be
through zoning regulations3. An amendment to the zoning code could allow recreational
marijuana -uses only in certain zones in the city and /or subject to certain location
standards.
The maps attached show the locations that marijuana uses would be restricted by the
WSLCB and the areas that remain for potential marijuana uses (Attachments C and D).
Aside from a few isolated pockets, marijuana uses can generally be located in the north
and the south ends of the city. Marijuana uses have potential impacts that need to be
considered. Sites require increased security; production and possibly processing may
also require increased ventilation and electricity use on indoor sites and perimeter
fencing on outdoor sites. Off -site odors are an issue and building transparency
requirements under design review may conflict with security needs. Clustering
marijuana uses in one area allows these impacts to be consolidated; off -site impacts
could be limited.
The north end of the City, where marijuana uses could be allowed, is generally
Manufacturing /Industrial Center -Heavy with an area of Light Industrial, Commercial -Light
Industrial, and Manufacturing /Industrial Center - Light. The Countywide Planning Policies
and the Tukwila Comprehensive Plan have polices in place to preserve this area for
manufacturing and industrial uses making marijuana uses inappropriate in this area.
The south end of the City has Tukwila Urban Center, Heavy Industrial, Mixed -Use Office
and Tukwila Valley South zoning available for marijuana uses. The City is in the process
3. Under the TMC, all businesses in the City are required to obtain a business license. Any business
license application for a recreational marijuana use would be denied for being in "violation of any local,
state, or federal law, rule or regulations prohibiting that conduct of that type of business." (TMC 5.04.110).
While some other cities are attempting to limit all recreational marijuana business uses via their business
license code, a review of state law and consultation with the City Attorney clarifies that a city cannot
require a business license for marijuana uses. State Law grants cities the authority to require a business
license in order to do business in that city. However, state law also prevents a city from requiring a
business license if a license is required from the state. Recreational marijuana uses that have a license
from the WSLCB would not be required to obtain a business license from the City of Tukwila and the City
of Tukwila could not issue a business license to any applicant for marijuana use because those uses are
in violation of Federal Law.
INFORMATIONAL MEMO
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of amending and adopting a new sub -area plan that will address uses and design
standards in the Tukwila Urban Center zone. The Tukwila Valley South zone would
allow indoor or outdoor production, and zoning currently supports both retail and
processing uses. The Heavy Industrial zone would support all uses aside from outdoor
grows (farming).
Only state - licensed recreational marijuana facilities should be allowed as a permitted
use. This proposal would not alter Federal or State criminal law related to marijuana,
and it would not place any City employee or official in the position of permitting or
sanctioning any marijuana - related activity. Rather, it would be an exercise of the City's
authority to protect the public health, safety, and welfare by preventing incompatible
uses —in this instance, marijuana - related activity and businesses - -in areas where such
activity could cause inappropriate off -site impacts.
What does staff recommend?
Staff's recommendation is to regulate marijuana uses as outlined in Option C above. This
would allow for marijuana retailing, production and processing to be added as permitted uses in
the Tukwila Valley South and the Heavy Industrial zones but restrict the area where marijuana
uses can occur to areas where the potential impacts are minimized. Marijuana -uses would be
prohibited in all other zones in the City. Marijuana -uses would be subject to state licensing
requirements and would regulate in concert with state law while not authorizing or giving
permission to circumvent or violate federal law.
Next Steps
The Planning Commission is being asked to review the draft zoning code amendment and make
a recommendation to the City Council.
ATTACHMENTS
A. Liquor Control Board 1 -502 Fact Sheet
B. AWC 1- 502 Fact Sheet
C. Map: Location Restrictions Imposed by 1 -502
D. Map: Zones where uses would be permitted
E. Draft Zoning Code Amendment