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016-11 - Ordinance - Relating to Land Use and ZoningIntroduced by: Gregory A. Jacoby Requested by: Gregory A. Jacoby Drafted by: Gregory A. Jacoby Reviewed by: Gregory A. Jacoby Introduced: August 23, 2011 Public Hearing: September 13, 2011 Adopted: August 23, 2011 ORDINANCE NO. oi6-ii AN ORDINANCE OF THE CITY OF PORT ORCHARD WASHINGTON, RELATING TO LAND USE AND ZONING, ADOPTING A MORATORIUM ON MEDICAL MARIJUANA COLLECTIVE GARDENS FOR A PERIOD OF SIX MONTHS, TO BE IN EFFECT WHILE THE CITY DRAFTS, CONSIDERS, HOLDS HEARINGS AND ADOPTS COLLECTIVE GARDEN ZONING REGULATIONS, TO BE EFFECTIVE IMMEDIATELY UPON ADOPTION, SCHEDULING A HEARING ON THE MAINTENANCE OF THE MORATORIUM ORDINANCE AND DECLARING AN EMERGENCY WHEREAS, RCW 35.63.20o and RCW 36.7oA.390 authorize cities to adopt moratoria for specific purposes; and WHEREAS, the City adopted a new Comprehensive Plan in 2008 and has amended its development regulations from time to time in order to ensure that the regulations continue to comply with the requirements and goals of the Growth Management Act, Chapter 36.7oA RCW, and that the regulations continue to meet the needs of the City and public; and WHEREAS, federal law, since 1970, has prohibited the manufacture and possession of marijuana as a Schedule I drug, based on the federal government's categorization of marijuana as having a "high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment." Gonzales v. Raich, 545 U.S. 1, 14 (2005), Controlled Substance Act (CSA), 84 Stat. 1242, 21 U.S.C. 801 et seq; and WHEREAS, in 1998 the voters approved Initiative 692, which permits the use of marijuana for medical use by qualifying patients, which was subsequently codified in Chapter 69.51A RCW; and WHEREAS, the intent of Initiative 692 was that qualifying "patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law," (RCW 69.51A.005), but that nothing in the law "shall be construed to supersede Washington state law prohibiting the acquisition, possession, manufacture, sale or use of marijuana for non -medical purposes" (RCW 69.51A.020); and WHEREAS, the Washington State Legislature passed E2SSB 5073, which provides that a qualifying patient or their designated care provider are presumed to be in compliance, and not subject to criminal or civil sanctions/penalties/consequences, if they possess no more than 15 cannabis plants, no more than 24 ounces of usable cannabis (and other qualifications as set forth in Ordinance No. 016-11 Page 2 of 5 Section 401 of E2SSB 5073; and WHEREAS, E2SSB 5073 will also permit, as of July 22, 2011, qualifying patients "to create and participate in collective gardens for the purpose of producing, processing, transporting, and delivering cannabis for medical use," provided no more than ten qualifying patients participate, the collective garden does not contain more than 15 plants per patient up to a total of 45 plants per garden, and the garden does not contain more than 24 ounces of useable cannabis per patient and up to a total of 72 ounces of useable cannabis (Section 403 of E2SSB 5073); and WHEREAS, RCW 69.51A.o6o(1) provides that it is a class 3 civil infraction to display medical cannabis in a manner or place which is open to view of the general public, which would include growing plants (Section 501 of E2SSB 5073); and WHEREAS, on April 29, 2011, Washington's Governor, in her partial veto letter affecting E2SSB 5073, indicated cooperative medical marijuana organizations should be exempted from state criminal penalties "conditioned on compliance with local government location and health and safety specifications" (page 3), creating a need to balance the interests of federal law, Washington medical marijuana patients and the health, safety and welfare of the community, (id.); and WHEREAS, when the Governor signed E2SSB 5073, she expressed reservations about provisions that involved government employees being involved in the regulation activities which could be interpreted as being in violation of federal laws; and WHEREAS, Section 1102 of E2SSB 5073 allows local jurisdictions to adopt zoning requirements, business license requirements, health and safety requirements, and impose business taxes; and WHEREAS, the City's current development regulations do not adequately address the concerns of the Mayor and City Council as they relate to medical marijuana collective gardens and City staff have been directed to revise the development regulations to address these concerns; and WHEREAS, as part of the process for the adoption of zoning regulations, the land use impacts of collective gardens must be identified; and WHEREAS, because the land use impacts of growing marijuana in quantities allowed by the State of Washington have been experienced in other jurisdictions, the City of Port Orchard may look to the experiences of other cities and counties in drafting zoning regulations for collective gardens; and WHEREAS, Mendocino County California has experienced significant location, health and safety problems with the cultivation of medical marijuana, including but not limited to: a distinctive odor that may be detectable far beyond property borders; medical marijuana (whether grown for medical or non -medical use) may be sold for thousands of dollars per pound; the odor can create an attractive nuisance creating a risk of burglary, robbery and armed robbery; indoor cultivation can overload standard electrical systems creating an unreasonable risk of fire; law enforcement needs to Ordinance No. 016-11 Page 3 of 5 be able to readily distinguish plants growing in compliance with state law versus those that are not; the need to provide notice to owners of the parcel upon which the plants are grown; and limitation on location of the gardens, and fencing/security requirements (Mendocino County Code Chapter 9.31); and WHEREAS, Butte County California has experienced significant location, health and safety problems with the cultivation of medical marijuana, finding that: marijuana plants can each yield one to two pounds of useable cannabis; the price for a pound of useable cannabis can range from $1,500 to $3,000; cultivation of marijuana within one thousand (1,000) feet of schools, school bus stops, school evacuation sites, churches, parks, child care centers or youth -oriented facilities creates unique risks that marijuana will be observed by juveniles and thus be vulnerable to theft or recreational consumption; odors can overwhelm neighbors and result in an increase in criminal activity; and inadequate security increases the risk of loitering and crime; (Butte County Code Chapter 34A); and WHEREAS, the Port Orchard City Council therefore believes a moratorium to preserve the status quo is necessary, so that the City can determine whether regulations are necessary, and if so, the scope of such regulations, and will need time to draft, consider and adopt the appropriate regulations; and WHEREAS, Section 36.7oA.390 Revised Code of Washington authorizes the City Council to adopt an immediate moratorium for a period of up to six months provided that a public hearing is held within at least sixty days of its adoption; and WHEREAS, the City Council desires to impose an immediate six month moratorium on the acceptance of any business license application or development permit application for the siting or operation of any medical marijuana (or cannabis) collective gardens; and WHEREAS, the City Council adopts the foregoing as its findings of fact justifying adoption of this Ordinance; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION i. Definitions: (A) "Cannabis" means all parts of the plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. For the purposes of this ordinance, "cannabis" does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted there from, fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. The term "cannabis" includes cannabis products and useable cannabis. Ordinance No. 016-11 Page 4 of 5 (B) "Cannabis products" means products that contain cannabis or cannabis extracts, have a measurable THC concentration greater than three -tenths of one percent, and are intended for human consumption or application, including, but not limited to, edible products, tinctures, and lotions. The term "cannabis products" does not include useable cannabis. The definition of "cannabis products" as a measurement of THC concentration only applies to the provisions of this ordinance and shall not be considered applicable to any criminal laws related to marijuana or cannabis. (C) "Collective Garden" means those gardens authorized under Section 403 of E2SSB 5073, which means qualifying patients sharing responsibility for acquiring and supplying the resources required to produce and process cannabis for medical use such as, for example, a location for a collective garden; equipment, supplies, and labor necessary to plant, grow, and harvest cannabis; cannabis plants, seeds, and cuttings; and equipment, supplies, and labor necessary for proper construction, plumbing, wiring, and ventilation of a garden of cannabis plants. (D) The definitions set forth in RCW 69.51A.olo are hereby incorporated by reference as if fully set forth herein. SECTION 2. The purpose of this moratorium is to allow the City adequate time to study the potential impacts of medical marijuana collective gardens and determine whether its regulations need to be amended in order to address collective gardens, and, if appropriate, to adopt those amended regulations. SECTION 3. Pursuant to RCW 35.63.20o and RCW 36.7oA.390 a moratorium is hereby imposed on the acceptance or processing of any applications for business licensing and/or building or land use activities relating to medical marijuana collective gardens, unless the application was fully vested under Washington's vested rights doctrine prior to the adoption of this Ordinance. SECTION 4. During the effective dates of this moratorium, the establishment, maintenance, or continuation of any medical marijuana collective garden is prohibited and designated as a prohibited use within the City of Port Orchard. SECTION 5. The moratorium adopted by this Ordinance shall commence on the date of the adoption of this Ordinance. As long as the City holds a public hearing on the moratorium within sixty (60) days and adopts findings of fact and conclusions of law to support the moratorium, such moratorium shall be in effect for six (6) months after the date of adoption, accordingly, this moratorium shall remain in effect until February 23, 2012, unless earlier terminated. SECTION 6. It is the intent of the City Council to repeal the moratorium as soon as it adopts amended development regulations that address zoning and land use issues associated with the establishment of medical marijuana collective gardens and any facilities within which such gardens are operated. However, if the City Council deems it necessary, the moratorium may be renewed for one or more 6 month periods if a subsequent public hearing is held and findings of fact are made prior to each renewal. Ordinance No. 016-11 Page 5 of 5 SECTION 7. Pursuant to RCW 35.63.200, a public hearing shall be held on the moratorium at 7:00 p.m. on September 13, 2011 at the Port Orchard City Hall, 216 Prospect Street, Port Orchard, Washington. During the next Council meeting immediately following this hearing, the City Council may, in its discretion, amend or supplement the foregoing findings of fact on the moratorium or may cancel the moratorium. SECTION 8. The City Council herby directs City Staff to develop draft regulations regarding collective gardens. The regulations shall be referred to the City of Port Orchard Planning Commission for review and recommendation for inclusion in the City's Code. SECTION 9. 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 or constitutionality of any other section, sentence, clause or phrase of this Ordinance. SECTION io. Declaration of Emergency. The City Council hereby declares that an emergency exists necessitating that this Ordinance take effect immediately upon passage by a majority vote plus one of the whole membership of the Council. Without the adoption of this moratorium, collective gardens could locate and operate in the City without restriction, eventually leading to the establishment or operation of such use in locations or conditions that might later be restricted or prohibited in the zoning regulations eventually adopted by the City of Port Orchard. Therefore, the moratorium must be imposed as an emergency measure to protect the public health, safety and welfare. SECTION iti. This Ordinance shall be effective upon adoption. A summary of this Ordinance may be published in lieu of the entire Ordinance, as authorized by State Law. PASSED by the City Council of the City of Port Orchard, APPR VED b the Mayor and attested by the City Clerk in authentication of such passage this,2, r 0 st- i. T: tricia J. Kitk-patfrick, MMC, City Clerk APPROVED AS TO FORM: ,la, SPONSORED BY: Fti1t1IIfI ?QRT0IP C Gregory A. Jac b , City torn, . G0,R �R��,•y-�,,� Clauson, Councilmember NOTICE OF CITY OF PORT ORCHARD ORDINANCE The following is a summary of an Ordinance approved by the Port Orchard City Council at their regular Council meeting held August 23, 2011. ORDINANCE NO. o16-11 AN ORDINANCE OF THE CITY OF PORT ORCHARD WASHINGTON, RELATING TO LAND USE AND ZONING, ADOPTING A MORATORIUM ON MEDICAL MARIJUANA COLLECTIVE GARDENS FOR A PERIOD OF SIX MONTHS, TO BE IN EFFECT WHILE THE CITY DRAFTS, CONSIDERS, HOLDS HEARINGS AND ADOPTS COLLECTIVE GARDEN ZONING REGULATIONS, TO BE EFFECTIVE IMMEDIATELY UPON ADOPTION, SCHEDULING A HEARING ON THE MAINTENANCE OF THE MORATORIUM ORDINANCE AND DECLARING AN EMERGENCY Copies of Ordinance No. 016-11 are available for review at the office of the City Clerk of the City of Port Orchard. Upon written request a statement of the full text of the Ordinance will be mailed to any interested person without charge. Thirty days after publication, copies of Ordinance No. 016-11 will be provided at a nominal charge. City of Port Orchard Patti Kirkpatrick City Clerk Publish: Kitsap Sun August 26, 2011