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012-14 - Ordinance - Amending Section 16.39.030 to Restrict Recreational MarijuanaIntroduced by: Development Director Drafted by: City Attorney Introduced: June 24, 2014 Reviewed by: City Attorney Adopted: FAILED ORDINANCE NO. 012-14 AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, AMENDING PORT ORCHARD MUNICIPAL CODE SECTION 16.39.030 SO AS TO RESTRICT RECREATIONAL MARIJUANA BUSINESSES FROM OPERATING WITHIN l000 FEET OF FAMILY DAY CARE PROVIDERS, NURSERY SCHOOLS, AND PRESCHOOLS WHEREAS, on April 22, 2014, the Port Orchard City Council adopted Ordinance No. 003-14 which, inter alia, amended Port Orchard Municipal Code by adding a new chapter 16.39 relating to land use regulations concerning the production, processing and retail sale of recreational marijuana; and WHEREAS, in accordance with the state regulations enacted to implement Initiative 502, POMC 16.39.030 prohibits recreational marijuana businesses from being located within i000 feet of certain designated uses, including but not limited to child care centers licensed under chapter 170-295 WAC; and WHEREAS, it has come to the attention of the City Council that the i000 foot restricted area set forth in the state regulations and POMC 16.39.030 may not apply to family day care providers licensed under chapter 170-296A WAC, nursery schools, or preschools; and WHEREAS, the City Council finds that the same rationale for prohibiting recreational marijuana businesses from operating within i000 feet of child care centers also applies to family day care providers and to nursery schools and preschools; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION 1. Port Orchard Municipal Code section 16.39.030 is amended to read as follows: 16.39.03o Location criteria. (1) As provided in RCW 69.50.331 and WAC 314-55-050, no recreational marijuana producer, processor or retail outlet may locate within one thousand (1,000) feet of any of the following: (a) Elementary or secondary school; Ordinance No.012-14 Page 2 of 3 (b) Playground; (c) Recreation center or facility; (d) Family day care provider, nursery school, preschool, or child care center; (e) Public park; (f) Public transit center; (g) Library; or (h) Any game arcade (where admission is not restricted to persons age twenty-one or older. (2) The methodology for measuring the buffers described above shall be as provided in WAC 314-55-050• (3) It shall be the responsibility of the owner or operator of the proposed state -licensed marijuana use to demonstrate and ensure that a proposed location is not within one of the buffers outlined above. (4) No recreational marijuana producer, processor or retail outlet may locate within any residentially zoned district or within any residential unit in the City. (5) As used in this section, the terms set forth below shall have the following meaning: (a) "Child care center" means an agency that regularly provides early childhood education and early learning services for a group of children for periods of less than twenty-four hours and is licensed under chapter 170- 295 WAC. (b) "Family day care provider" means a child care provider who regularly provides early childhood education and early learning services for no more than twelve children in the provider's home in the family living quarters and is licensed under chapter 170-296A WAC. (c) "Nursery school" or "preschool" means a facility that is engaged primarily in early childhood education and early learning services with preschool children in which no child is enrolled on a regular basis for more than four hours per day and that is licensed under state law. SECTION 2. If any section, sentence, clause or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity of constitutionality of any other section, sentence, clause or phrase of this ordinance. SECTIONg. This ordinance shall be in full force and effect five (5) days after posting and publication as required by law. A summary of this Ordinance may be published in lieu of the entire ordinance, as authorized by State Law. Ordinance No.012-14 Page 3 of 3 PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested by the City Clerk in authentication of such passage this day of June 2014. FAILED Timothy C. Matthes, Mayor ATTEST: FAILED Brandy Rinearson, CMC, City Clerk APPROVED AS TO FORM: Sponsored by: FAILED FAILED Gregory A. Jacoby, City Attorney Jerry Childs, Councilmember Minutes of July 8, 2014 Paae .q of A 4. APPROVAL OF CONSENT AGENDA A. Approval of Check No. 62130 through 62242 totaling $584,649.67; June Payroll Warrant Nos. 145865 through 145910 totaling $572,830.12; and Treasurer's Checkbook in the amount of $6,423,331.93 B. Approval of Setting the July Work Study Session Meeting Date C. Approval of June 24, 2014, Council Meeting Minutes D. Adoption of a Resolution Declaring Certain Real Property as Surplus E. Approval of a Contract with C-More Pipe Services for the 2014 Sewer TV, Cleaning, and Lining Maintenance F. Approval of Public Event Application: Port Orchard Jingle Bell Run/Walk G. Excuse Councilmember Childs and Councilmember Lucarelli from Tonight's Meeting Councilmember Clauson MOVED and Councilmember Putaansuu seconded the motion approving the Consent Agenda, as amended. Upon vote, the motion passed unanimously. 5. PRESENTATION No presentations were given. 6. PUBLIC HEARING A. Public Hearing and Adoption of an Ordinance Adopting Interim Regulations Amending POMC Section 16.39.030 to Restrict Recreational Marijuana Businesses from Operating within i,000 Feet of Family Daycare Providers, Nursery Schools, and Preschools City Attorney Jacoby presented the staff report, noting it has come to staff s attention that while state law and Port Orchard Municipal Code restrict recreational marijuana businesses from operating within 1,000 feet of a "child care center," the definition of child care center is very narrow and does not apply to residence -based day care facilities (referred to as "family day care providers" in state regulations) nor does it address nursery schools or preschools. Staff believes the same rationale for restricting recreational marijuana businesses from operating within 1,000 feet of a childcare center also applies to a family day care provider, nursery school, or preschool and therefore the same rules should apply. The proposed ordinance would adopt interim regulations amending POMC 16.39.03o by adding language to clarify that marijuana businesses may not operate within 1,000 feet of child care centers, family day care providers, nursery schools or preschools. After the Department of Commerce has completed its expedited review of the regulations, staff anticipates bringing the interim regulations back to Council for final adoption. Mayor Matthes opened the Public Hearing at 7:20 P.M. Mr. Paul Vaughn asked that the Council consider separating retail versus growing and processing businesses for the amendment. The City has already separated them in their zoning Minutes of July 8, 2014 Page 4 of A plans. The only area growers and processors can exist in is the industrial park. The concerns that citizens have might be about foot traffic for retail businesses. The children will not be exposed to the industrial park. The growth and processing businesses have employees, not customers, who go through background checks. The facilities will have security systems on their facility as mandated for law. In response to Councilmember Chang, Mr. Vaughn described the path he took from the industrial park to get to the home day care and it was over two miles. In response to Councilmember Cartwright, Mr. Vaughn he said he does not have a currently application in at the industrial park. In response to Councilmember Clauson, Development Director Bond said the parameters for producing and processing recreational marijuana were that it has to be in the industrial zone, and it has to have a license from the State Liquor Control Board, and the City has adopted all of the State's requirements regarding production and processing and incorporated them into the City's Ordinance. There were no additional burdens that were placed on production or processing. City Attorney Jacoby said the State requires that it be grown indoors only and there needs to be a security system. Mr. Vaughn said the grow operations are allowed to be greenhouses and outdoors. His plans would be to do an indoor operation. The State does allow outside grows. City Attorney Jacoby said the provision the City adopted addresses cultivating, growing, processing, displaying, manufacturing, selling, and storage shall be conducted out of the public view. Ms. Collette Thomas on behalf of Crockpot, a retail marijuana business, had put an application in on 1703 SE Sedgwick in adherence to all of Port Orchard's zoning codes. They are due to have a final inspection on Monday. She is asking that their business, which is nearing the final measures of opening, be grandfathered in. They signed a very long lease and spent a lot of money for tenant improvements. In response to Councilmember Chang, Development Director Bond said that South Park is right next to that intersection, but since it is an undeveloped park, the 1,000-foot buffer would not apply at this time. Once that park is developed, any future businesses that came in would not be able to be in that area, the existing ones would be able to continue to operate. Councilmember Cartwright clarified that Crockpot's current business application would not be impacted by the Ordinance. City Attorney Jacoby said he does not believe it is subjected to the 1,000-foot rule. City Clerk Rinearson read a statement from Terri Squires into the record. She requested that all businesses working with children be given the same protections from marijuana businesses. There being no further testimony, Mayor Matthes closed the Public Hearing at 7:37 P.M. Minutes of July 8, 2014 Paae ti of 9 In response to Councilmember Ashby, City Attorney Jacoby said the amendment would affect new businesses that come in after a daycare is established. In response to Councilmember Ashby, Development Director Bond said in order to determine where home daycare centers are located, staff would have to put in a public records request to the Department of Early Learning for an updated list of home -based childcare providers. There is a bit of work if City staff has to determine where or not there is a new facility in proximity. In response to Councilmember Chang, Development Director Bond explained how the buffer line would run from property line to property line. Councilmember Chang is concerned with how the proposed changes would affect the industrial park and the empty K-Mart shopping center. Councilmember Putaansuu is concerned about staff time to monitor this. He also thought the City did a good job in determining very specific locations where these businesses could locate. He has some reservations on the proposed changes. In response to Councilmember Cartwright, Development Director Bond said there was lot that somebody had applied for a license from the Washington State Liquor Control Board that might be affected depending on where the applicant is in the process. Councilmember Cartwright said he is concerned about changing the rules of the game halfway through some other business entity's planning and research. He said the industrial area is ideal for this operation. He does not want to change the process halfway through the process. Councilmember Clauson said the difference between retail and growing is significant. It was a very valid point with the City code that the growing has to be done inside and you will not have the traffic coming and going from that type of facility as you would from a retail facility. They should be treated differently. He agreed with Councilmember Ashby's point that as the City develops, with creation of new home daycares, there will essentially be nowhere for retail sales if they have not already been approved. This can evolve to something more than what is recognized today. He shares Mr. Chang's concern with the nearly vacant shopping center on Mile Hill. Councilmember Ashby said the City Council was very cognizant of State law when they adopted the Ordinance, and this is a deviation from the State rules. Councilmember Ashby MOVED and Councilmember Clauson seconded the motion to approve Ordinance No. 012-14 adopting interim regulations to restrict recreational marijuana businesses from operating within i000 feet of family day care providers, nursery schools, and preschools — in addition to child care centers. Upon vote, the motion failed unanimously. B. Public Hearing and Adoption of a Resolution Granting a View Protection Overlay District Exemption to Paul Berg for Properties Located on Smalley Lane