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Dazed and Confused


August 28, 2013 by Jim Doherty
Category: Marijuana

Dazed and Confused

If you're finding the transition to a regulated and taxed recreational marijuana market confusing, you aren't alone! But MRSC and AWC will help you keep track of this significant issue.

On the morning of August 22nd, I spent almost two hours “attending” an I-502 implementation webinar sponsored by the Association of Washington Cities (AWC). The speakers were informative, and many of the latest developments were reviewed, including the following:

  • The Liquor Control Board (LCB) will delay adopting the final regulations implementing I-502 (the effective date is now projected to be Nov. 4th);
  • Licenses for growers, processors, and retailers will probably not be issued until March or April of 2014 (which is also a delay from earlier projections);
  • The LCB would appreciate getting from each city and county copies of land use regulations and zoning ordinances that restrict where marijuana businesses can locate;
  • The LCB will make the determination of whether an applicant for a marijuana license is located within the prohibited 1,000 foot zone (proximity to schools, parks, recreation centers, etc.) established by I-502;
  • Pedestrian/biking trails will NOT be included within the definition of “parks” in the final version of the LCB regulations; and
  • Last but not least – on September 4th, the LCB will put out its numbers for the expected number of recreational marijuana retailing licenses - how many locations in each county, and how many in the major cities of each county.

As part of the AWC webinar, an assistant city attorney from the City of Kent provided a good review of the complicated federal law preemption issues. Attorneys hold very different views on these federal preemption issues. Unfortunately, we will not get even preliminary answers until the issues are squarely faced by a trial court and then appealed up the ladder to the appellate courts. So don’t hold your breath. Our courts (and our society) will take a bit of time to sort this out.

Additionally at the webinar, an experienced land use attorney provided a helpful summary of the options available to cities and counties – and the potential liability and litigation risks of those choices. Some potential pitfalls:

  • if a jurisdiction follows federal law - that prohibits what I-502 allows - and prohibits all marijuana businesses, the jurisdiction might be sued by the holder of a state-issued marijuana grower/processor/retailer license who is denied the opportunity to conduct business in the jurisdiction;
  • if a jurisdiction enacts a moratorium to provide additional time while zoning issues are reviewed more closely, how long can such a moratorium to kept in place before being successfully challenged by a state marijuana license holder?
  • if a jurisdiction follows state law and zones for appropriate locations for state-licensed marijuana businesses, then, theoretically, the federal government could prosecute the legislative body and planning permit staff for facilitating illegal drug activities. (This is extremely unlikely because, if the federal government wanted to legally challenge the state’s marijuana licensing process, it would be much more likely to start at the top and initiate litigation against the LCB - a highly unlikely scenario also.)

The webinar also included a discussion of the moratorium option - deciding not to accept applications for development permits for marijuana uses under I-502 until land use regulations concerning those uses can be adopted. One thought about that option, which a number of jurisdictions are turning to: if cities and counties can get zoning regulations in place prior to when the LCB starts accepting marijuana license applications (November 18th), then prospective marijuana businesses can proceed with their license applications. A moratorium is a temporary measure, and, given the circumstances involved with the licensing process being set up by the LCB, it can effectively act as prohibition if left in place too long.

But don’t settle for this second-hand summary - listen to the webinar yourself. While you are at it, don’t forget to visit the MRSC web page on recreational marijuana implementation. We are posting new articles, ordinances, and zoning regulations as they come in – so don’t be bashful, share your jurisdiction’s latest marijuana documents with MRSC – and follow this MRSC blog for future updates on recreational marijuana implementation.

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Jim Doherty

Jim had over 24 years of experience researching and responding to varied legal questions at MRSC. He had special expertise in transmission pipeline planning issues, as well as the issues surrounding medical and recreational marijuana. He is now retired.

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