State Supreme Court Says Cities Can Ban Collective Gardens, but the Legislature is Replacing Them with Medical Marijuana Cooperatives

The Washington State Supreme Court today issued a decision (Cannabis Action Coalition v. City of Kent) upholding the constitutionality of the city of Kent’s ordinance banning collective gardens as a valid exercise of the city’s zoning authority.

But in a related development, the Washington State Legislature, via the recent enactment of 2SSB 5052, is ending the authorization in state law for the establishment of collective gardens, effective July 1, 2016, and is replacing that authorization with new authority for medical marijuana “cooperatives” certified by the Liquor Cannabis Board (formerly the Liquor Control Board). So, the big question now before local governments will be how the court’s analysis in Cannabis Action Coalition v. City of Kent will apply to the authority of cities and counties to enact zoning requirements regarding these newly-authorized medical marijuana cooperatives, or to prohibit them outright, if they so desire. 2SSB 5052 does not directly address that issue.

The court started its analysis with the well-established presumption that a local government’s exercise of the “police power” – its zoning authority here – is constitutional and that a heavy burden rests upon the party challenging an ordinance’s constitutionality. The plaintiffs’ contended that the city’s ordinance banning collective gardens is in conflict with a “general law,” the Medical Use of Cannabis Act (MUCA), chapter 69.51A RCW, and is preempted by that general law and thus is unconstitutional.

In rejecting the plaintiffs’ arguments, the court held that there was no express language in MUCA preempting a local government’s zoning authority over collective gardens. The court also addressed whether MUCA impliedly preempted “the field” of medical marijuana regulation, and concluded that MUCA “expressly contemplates local regulation of medical marijuana” by authorizing cities to adopt and enforce, among other matters, zoning requirements. As such, the court held that “[g]iven this express state law recognition of local jurisdiction over medical marijuana regulation, we must conclude that MUCA does not impliedly preempt the field of medical marijuana.”

The court next considered whether Kent’s ordinance “directly and irreconcilably conflicts with the statute,” MUCA, which the plaintiffs argued authorized only local zoning authority over “’commercial producers, processors, or dispensaries that would have been licensed under the proposed regulatory scheme," had not the Governor vetoed those licensing provisions. The court decided that “RCW 69.51A.140(1)'s provision that a city may adopt zoning requirements for the ‘production, processing, or dispensing’ of medical marijuana provides no reason to limit these concepts to only commercial activities.”

The court also rejected the plaintiffs’ remaining argument that RCW 69.51A.140(1)’s authorization to adopt "zoning requirements" did not grant the city carte blanche to opt out of all medical marijuana activity, which they contended was not a “land use.”

What does this decision portend for local government authority over the new medical marijuana cooperatives? I don’t have an answer for that, and we may not have a clear answer until, and if, that issue is litigated and ultimately decided by the Washington Supreme Court, which could take a few years.

These cooperatives are somewhat different than collective gardens. Cooperatives are limited to no more than four members (qualifying patients or designated providers) and, importantly, “[t]he location of the cooperative must be the domicile of one of the participants” (see Section 26 of 2SSB 5052). In other words, they must be located in zones that permit residential dwellings; they can’t be relegated, for example, to industrial areas. However, they cannot be located within one mile of a marijuana retailer.

Significantly, 2SSB 5052 does not address local zoning authority over medical marijuana cooperatives. (You may ask, why not? That’s a good question for which I don’t have an answer.) It does not use words such as “zoning,” “zone,” or “land use.” RCW 69.51A.140, which addresses local government zoning authority with respect to collective gardens and which the court focused on in Cannabis Action Coalition v. City of Kent, is repealed by 2SSB 5052 in Section 48.

So, we’re left with a big question mark. And it may be a while before we get an answer.

Image courtesy of Presna 420.