County revises marijuana ordinances

Published on Wed, Apr 9, 2014 by By Ian Ferguson

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A zoning ordinance for recreational marijuana businesses in unincorporated Whatcom County got a second look from Whatcom County Council, and the revised version eased some requirements while adding others.
The revisions were hammered out and approved at a special committee meeting of the whole and introduced during the council’s regular session April 8. A public hearing on the revised ordinance is scheduled for Tuesday, April 22.

One of the more significant revisions was the removal of language that allowed the permitted use of “collective gardens” for the production of medical marijuana. Collective gardens allow up to 10 people who have a medical marijuana grower’s license to grow marijuana together for medicinal purposes. Collective gardens, and medical marijuana in general, were made legal in Washington state with the passage of the Medical Use of Marijuana Act (MUCA) in 1999.

In a turn of events that illustrates the ever-changing landscape of marijuana law, a decision in the Washington State Court of Appeals on March 31 found that the use and production of medical marijuana, although legalized by MUCA, was effectively made illegal in 2011 when governor Christine Gregoire vetoed an amendment to MUCA. Gregoire’s veto left intact only the portion of the law that protects medical marijuana growers and users from state prosecution or civil suits. The legality of medical marijuana was not addressed in Initiative 502, the ballot measure passed by Washington voters in 2012 that legalized recreational marijuana.

“The court of appeals tells us that collective gardens are illegal, so we recommend removing them from the ordinance,” said county deputy prosecuting attorney Royce Buckingham.

Council member Barbara Brenner argued for leaving the language in the ordinance. “At the federal level, everything we’re doing with marijuana is illegal,” she said. “I never would have voted for recreational marijuana if I thought it would affect the medical marijuana industry.”

 “I think we need to follow state law on this one,” council member Ken Mann said.

The motion to remove the language allowing collective gardens was approved 6–1 with Brenner opposed.

On March 25, county council passed Ordinance 2014-018 allowing recreational marijuana production, processing and retailing in unincorporated Whatcom County. However, council elected to revise the ordinance following a public hearing in which marijuana business applicants protested the restrictions it contained.

The other revisions to the ordinance, and the way the council voted, are summarized below.

Density restriction: The original ordinance required that no more than eight residences could be located within 1,000 feet of a proposed marijuana business location. Council voted 6–1 to eliminate that restriction, with council member Sam Crawford opposed.

Building size: The original ordinance did not restrict building size, but council voted unanimously to add a 2,000-square-foot limit to new buildings in rural residential, rural residential island and rural zone districts. Existing buildings are excluded from the 2,000-foot limit but can’t exceed 10,000 feet. In rural zone districts, the size limit only applies on parcels 4.5 acres or smaller.

Setbacks from neighbors: The ordinance originally required a 300-foot buffer between buildings housing marijuana-related uses and nearby residences. A revision passed unanimously by council allows business owners to waive the requirement if they get notarized consent signed by the owners of all residences within 300 feet and an administrative use permit from planning and development services. A second revision changed the setbacks from 300 to 200 feet in agriculture and rural forestry zone districts, as well in existing buildings in all zones. That revision passed 4–3 with councilmembers Brenner, Crawford and Rud Browne opposed.

50 percent processing requirement: The original ordinance required businesses that process marijuana in rural industrial manufacturing zone districts to get at least 50 percent of their marijuana from sources in Whatcom County. Council voted unanimously to remove that requirement.
Retail floor space: Council voted unanimously to add a provision that marijuana retail stores can be no larger than 2,500 square feet.

The Washington State Liquor Control Board (WSLCB) has decided to hold a lottery to select   apparent successful applicants for marijuana retail licenses. The independent, double blind process will take place April 21-25, and will produce an ordered list of applicants that the agency will use to continue its retail licensing process. The agency expects to begin issuing retail licenses no later than the first week of July.

Initiative 502 directed the WSLCB to limit the number of marijuana retail stores by county. In its rules, the WSLCB limited the number of stores statewide to 334. The most populated cities within each county are allotted a maximum number of stores with the remainder at large within the county. The rules further state that if the WSLCB receives more applications for a jurisdiction than there are allocated the state would use a lottery process for producing a ranked order of applicants. Whatcom County is eligible for 15 retail outlets. However, the WSLCB received 75 retailer applications, five times more than allowed.

The WSLCB began pre-qualifying applicants for the lottery the weekend of February 21-23. Applicants had 30 days to return the basic documents necessary to be eligible for the lottery including verification of: their personal criminal history, their age being 21 or older, that they are Washington state residents, that their business was formed in Washington state, and that they have a location address with a right to real property.

A letter of intent to lease was acceptable to be eligible for the lottery. WSLCB licensing staff is currently reviewing pre-qualifying packets. Initial estimates of returned packets show that despite repeated notices and reminders to applicants, roughly 25 percent did not return the required documents at all. Of the returned packets, anywhere between 20-50 percent are incomplete, thus disqualifying them from the retail lottery.

The WSLCB is expected to post the ordered list of applicants for each jurisdiction in the public records section of the agency website on May 2.