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Local Government Authority and the New Marijuana Industry


November 13, 2013  by  Jim Doherty
Category:  Marijuana

On November 5th, the state attorney general’s office posted a notice of a request for an opinion from Sharon Foster, chair of the state Liquor Control Board, regarding the authority of local governments - cities and counties - to directly or indirectly prohibit recreational marijuana uses in their jurisdictions. The purpose of the notice is to seek public input on the requested opinion. Here are the questions that are asked in the request:

1. Are local governments preempted by state law from outright banning the location of a WSLCB licensed marijuana producer, processor, or retailer within their jurisdiction?

 

2. May a local government establish land use regulations (in excess of the I-502 buffer and other WSLCB requirements) or business license requirements in a fashion that makes it impractical for a licensed marijuana business to locate within their jurisdiction?


Obviously, many local governments have an interest in these issues. The Association of Washington Cities is coordinating a response on behalf of cities, and I presume that input will also be provided by county prosecutors.

Unfortunately, the process of issuing an attorney general opinion can sometimes take a while, particularly where the issues are complicated. In the meantime, cities and counties need to proceed with the ongoing process of adopting zoning for marijuana businesses, if they have not already done so. Keep in mind that an attorney general opinion is advisory only, and a court facing the same issues might come to a different conclusion. In other words, don’t hold your breath for final answers any time soon.

But can’t the legislature step in and give cities and counties the right to decide whether they want marijuana businesses in their jurisdiction? Yes, but not easily. Article 2, section 1 of our state constitution provides that initiatives passed by the people cannot be amended for two years after their enactment (not until the 2015 legislative session for I-502) except by a two-thirds vote in both the house and senate. That two-thirds approval requirement can be a high hurdle.

If you are interested in commenting regarding the requested opinion, here is the process to do so:

If you are interested in commenting . . . you should notify the Attorney General’s Office of your interest by November 28, 2013. This is not the due date by which comments must be received. However, if you do not notify the Attorney General’s Office of your interest in commenting on an opinion request by this date, the opinion may be issued before your comments have been received. You may notify the Attorney General’s Office of your intention to comment by calling (360) 586-0728, or by writing to the Office of the Attorney General, Solicitor General Division, Attention Jeff Even, Deputy Solicitor General, P.O. Box 40100, Olympia, Washington 98504-0100.


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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