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Council action clears way for marijuana businesses on heels of I-502

Nancy Backus - Courtesy photo
Nancy Backus
— image credit: Courtesy photo

Auburn's leaders Tuesday night chose to meet the challenge of marijuana businesses in the city by adopting locally enforceable state marijuana business licensing requirements and keeping the City out of any regulatory or permitting roles.

Also, the City decided to allow the moratorium on retail sales, permitting and manufacturing of marijuana in Auburn that's been in effect for a year to expire next Tuesday, five days after the ordinance is published.

While Tuesday's action clears the way for two state allotted retail operations and processing and manufacturing operations to set up shop in Auburn, it was clear that City Council members and the mayor harbor misgivings about I-502. Washington voters approved the initiative in November 2012 by a comfortable margin, legalizing recreational marijuana throughout the state.

What city leaders find particularly galling is that tax revenues generated by local marijuana sales are to go to state coffers while the cities are left to deal with any fallout.

"It is an unfunded mandate that comes from the people, but there is no additional funding," said Mayor Nancy Backus. "And just because we haven't had a retail presence in the City of Auburn, doesn't mean we aren't experiencing crime or additional DUIs."

At the same time, Backus lauded city officials who have worked for a year and a half on the issue.

"The City Council took a great deal of time, the planning commission took a great deal of time. But surprisingly, during the workshops and the public hearing there were no comments against, and it was very lightly attended. It is what it is," Backus said.

By adding to the City Code the requirement that marijuana businesses comply with state regulations the ordinance becomes enforceable by the City.

Failing to meet state requirements would constitute violations under City code, even though the City would not be the licensing agency.

City Attorney Dan Heid noted that the City Council made some adjustments to the ordinance before passing it.

"The definition of state law was tweaked a little bitty bit, in terms of which state law was plugged in and the definition of cannabis," Heid said. "The reason for that is that there are hybrids that might have fallen through the cracks if you are too specific. In that regard, it makes you wonder about the federal laws: are they too specific?"

In Auburn, 54 percent of the voters said yes to I-502. Eighty percent of Auburn's 61 precincts voted yes to I-502, a mere 12 said no.

In July 2013, the state used a lottery to grant two retail recreational marijuana businesses authorization to open in Auburn along with producers and processors.

To buy the City and planning commission time to study and address potential challenges posed by recreational marijuana businesses, the City Council on Sept. 16 2013 slapped a one-year-long moratorium on the manufacturing, processing and sale of recreational marijuana within city limits.

Although the City Council presented the Planning Commission with three options, the commission soon dropped the third option from consideration because of the legal risks it entailed. Here were those options:

• Option 1: outright banning the processing, producing and sale of recreational marijuana inside City limits;

• Option 2: adopting the state's enforcement tools but not adding any of Auburn's own;

• Option 3: would have added City regulations via licensing or additional zoning regulations.

The Planning Commission hosted a public workshop in May and a public hearing in the first week of August. Recently, it finished its work by recommending that the City Council adopt Option 2, which it did Tuesday night.

Under Option 2, Heid said, the City can stay true to its own code provisions that prohibit it from permitting activities that are illegal under state or federal law. The marijuana initiative presents the only case, he added, where state statute authorizes a business that is illegal under federal law.

"Under Option 2, we are not the permitting agency, we are not the regulatory agency," Heid said. "The initiative included in its language a lot of regulations. That's where the map came from, because it had the setbacks. You cannot have these businesses in residential areas, so there's an awful lot of property that's not going to be used. But there aren't setbacks for residential as such, so you look at the zone as it is, unless it's close to one of the accepted areas."

A state Liquor Control Board regulation requires that any retail or manufacturing operations be at least 1,000 feet from schools, parks, transit stations and daycares. The City consequently produced a map that, given this requirement, leaves only the M1 and M2 industrial and warehousing zones open to producers and processors, while restricting retail to the M1 and the three commercial zones.

By keeping the City from being the regulatory agency — and consequently preventing it from permitting anything federal law says is illegal— while allowing it to add code provisions to enforce violations of state licensing, the City under Option 2 could prosecute anybody who violates state licensing requirements, Heid said.

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