Washington cities, such as Seattle and Shoreline, are moving ahead with zoning and other local rules for a new state-sanctioned recreational-marijuana industry.
Others, including Kent and University Place, are girding for battle.
“I don’t think an individual or the state has the right to force us” into welcoming pot commerce, said Steve Victor, city attorney for University Place. “I hope we don’t have to defend ourselves in court, but we are prepared to.”
More cities, though, seem dazed and confused.
The Association of Washington Cities (AWC) surveyed 85 cities representing 2.4 million residents. Those cities raised concerns about the costs of enforcing pot laws, youth access to pot and community character. As state officials prepare to finalize rules on Aug. 14 for a seed-to-store system and determine the locations of retail stores, cities don’t know what to expect. Two stores? Ten stores? None?
“There are a lot of unknowns. We don’t have official rules yet. We don’t have numbers of stores. We don’t know what the feds are going to do,” said Candice Bock, government relations advocate for AWC. “What I hear a lot is: ’This wasn’t our idea. You’ve got state law saying one thing, federal law saying another. Why do I have to sort this out?’?”
But state officials are steaming ahead. Legal pot is coming. The federal government remains Sphinx-like, with the Department of Justice saying only that it continues to review the legalization efforts in Washington and Colorado. And everyone seems to agree the courts will have to sort out the rights of cities to legislate against legal pot businesses.
The Seattle City Council expects to adopt zoning rules Aug. 12 that would allow growers and retailers in industrial and commercial zones, but not in residential or historic areas. Seattle already is home to about 150 medical-marijuana businesses.
Council members have said they’re trying to get out in front of an industry emerging from the shadows. By limiting where pot businesses can be, council members say, they’re keeping them from popping up everywhere in the city.
Shoreline also is preparing to comply with the state law in its own interest. Its city council is scheduled to discuss local regulations for recreational pot next month. “State voters have decided it is coming, and we want to prepare for it and make sure we’re ahead of it and not playing catch-up,” said Eric Bratton, a spokesman for the city.
King County has come up with proposed zoning for a slightly different reason.
The new law bans pot businesses within 1,000 feet of venues frequented by youth. Given that restriction and the resistance of some cities, county officials are concerned that pot merchants will be driven to unincorporated areas, which don’t have the policing that might be needed. The county’s proposal deals only with unincorporated areas, steering pot businesses to business, industrial and agricultural zones.
Strategies are different in Kent and University Place.
In the state’s sixth-largest city, the Kent City Council has imposed a moratorium on pot businesses. Mayor Suzette Cooke said she’s opposed to them because her oath requires her to uphold city, state and federal law, including the latter’s prohibition of all marijuana. If the council, which voted 4-3 for the moratorium, were to change its position, she said, then she’d reconsider hers. Then, she reasoned, she’d be upholding the oath for two of three entities -- the city and state -- to which she swore allegiance.
Council President Dennis Higgins, who voted against the moratorium, said Kent shouldn’t “put its head in the sand” and should be regulating legal pot.
“By being proactive, we will head off all kinds of costs for the city, for police, for detective work for having to deal with bad actors instead of people operating in good faith under the law,” Higgins said.
In University Place, a city of 31,500 southwest of Tacoma, Victor, the city attorney, emphasizes that the city’s opposition is based strictly on legal issues, not morality.
Because of the federal ban on all pot, Victor said, city leaders are worried about losing federal grants and having city employees prosecuted if the city allowed state-regulated marijuana commerce. “Initiative 502 promised voters something it can’t deliver,” Victor said. “State law can’t change federal law.”
The state Liquor Control Board, the agency charged with implementing legal marijuana, is attempting a balancing act.
On one hand, the new law does not contain an opt-out clause for cities. The board is prepared to issue licenses even in cities with moratoria and other obstacles.
On the other, the board’s rules say that legal pot businesses must comply with city and county regulations.
In a conflict between state and local law, the state is likely to prevail, said Ryan Espegard, a lawyer with Gordon Honeywell Thomas in Seattle, representing pot entrepreneurs.
On issues such as drivers’ licenses and historic preservation, courts have upheld the supremacy of state law, Espegard said.
The same would appear likely for legal pot, he said, because the state law does not allow cities to opt out and it gives the state sweeping authority to regulate the new industry.
But there is a wrinkle. The proposed rules say licensed pot businesses are not authorized to violate local rules. Cities could use this, Espegard said, to argue that if the state had “complete authority, they may have delegated it back to cities with this section.”
“Courts are certainly to be the ones who will determine how this will play out,” Espegard said, in all likelihood after a state-licensed pot merchant sues a recalcitrant city like Kent or University Place.
Victor is confident University Place would prevail in federal court because federal law would trump or preempt state law. “It’s an almost certain outcome,” he said.
But the city would have to get sued by a shut-out entrepreneur for that legal question to be resolved.
Meanwhile, “We have a kind of stalemate in which local jurisdictions that choose to participate certainly can,” Victor said, “but no one has yet attempted to coerce or muscle a local jurisdiction into participating and violating (federal) grant contracts.”
Espegard said his advice to entrepreneurs is to look for sympathetic jurisdictions. He’d advise staying away from Kent, he said, and entering a city like Bellevue with caution. Bellevue, which has resisted medical-marijuana dispensaries, has just begun considering zoning regulations for legal pot businesses. “They may have restrictive zoning, but I doubt they’re going to zone it out completely,” he said.
“It’s going to be a little bumpy,” said Brian Smith, spokesman for the Liquor Control Board. “A lot of local communities are looking at what 1/8the new law 3/8 means to them, and I think a lot are looking through the lens for the first time.”
AWC’s Bock said she senses a new urgency among cities as they realize the federal government has not intervened and state rules soon will be finalized and licenses issued in December. “We’ve tried to get that message out to cities,” she said, “that now is the time to have conversation in your community about what you want to do.”
She expects some cities to continue their resistance. And for those, she said, “I fully expect litigation, and the courts will end up being the ones who sort it out.”
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