Sumner city council zones out marijuana-related businesses

Washington state voters approved legalization of recreational marijuana in the November election, but it seems the city of Sumner isn't ready to hop on board.

The city council voted unanimously Nov. 19 to approve an ordinance prohibiting the zoning of the three types of marijuana suppliers within city limits. The ordinance also prohibits zoning of collective gardens, a supplier to medical marijuana patients.

State Initiative 502, passed by 55.7 percent of the vote in November, legalizes possession of marijuana at the state level and defines a state-licensed supply chain to sell marijuana and marijuana accessories to consumers. Marijuana remains an illegal Schedule I controlled substance under federal law.

As such, Sumner now finds itself in the unique position of disagreeing with state law—where sales are concerned—while upholding federal law.

"Given the increased availability of marijuana through these facilities and potential social impacts, and the fact marijuana continues to be a controlled substance under federal law, makes it inappropriate for any zoning designation within the City," read the summary explanation of the ordinance by Community Development Director Paul Rogerson.

Among other changes—some of which were explored by the Courier-Herald here and here—Initiative 502 expands the state laws concerning controlled substances to include definitions for marijuana producers, marijuana processors, and marijuana retailers; the three are the growers, packagers and sellers of the regulated marijuana economy. Each business category will be under the purview of the state Liquor Control Board.

The Board expects to take until Dec. 1, 2013 — the maximum time allowed—to hash out the finer points of the rules and regulations surrounding the marijuana economy, according to a Nov. 7 open letter from the agency.

That pause between passage and implementation, and the city council's early-bird vote, means Sumner isn't ruffling state feathers because there aren't necessarily any feathers to ruffle yet.

"Honestly, we're so far away from licenses right now, we don't have an answer about (the state legality of a total municipal zoning ban)," state Liquor Control Board spokesman Mikhail Carpenter said. "We're just too far out now to have an idea."

The initiative did not alter established state laws concerning medical marijuana, including collective gardens. Collective gardens are a communal supply arrangement allowing no more than a 10 patient membership; a collective garden may supply no more than 15 plants per patient up to a total of 45 plants, and no more than 24 ounces of useable plant matter per patient up to a total of 72 ounces. Prior to the election, the City of Sumner preempted business applications from collective gardens through a series of six-month moratoriums, citing a lack of clarity in state law and conflict with federal law.

When the last moratorium was passed in August, City Attorney Brett Vinson noted that continued passage of moratoriums could become a legal liability if they were challenged in court as a de facto ban. Vinson cited the court challenges to Seattle's 1990-2007 moratorium on new adult businesses, though he added that Sumner's smaller size and the recency of its first moratorium probably translated to a lesser risk of future litigation.

The comparison to adult business zone-outs is perhaps apt for the permanent zoning prohibition as well. Washington state is home to a number of court cases regarding adult zoning bans, perhaps the most famous being the 1986 U.S. Supreme Court ruling in City of Renton v. Playtime Theatres, Inc.

The Court ruled by a 7-2 decision that zoning restrictions on adult businesses did not violate their First Amendment rights to free expression, because the zoning ordinance did not outright ban adult businesses and had the written purpose of combatting associated social side effects such as drug crime and prostitution; it thus represented a content-neutral time, place and manner regulation.

Sumner's marijuana ordinance similarly cited "social impacts" as one of the reasons for a total zoning ban. But Sumner's law diverges from Renton v. Playtime Theatres, Inc. in that it lacks an unanswered Constitutional question, barring a revisitation of drug law by the U.S. court system. The Rehnquist court upheld U.S jurisdiction over controlled substances through the Constitution's Commerce Clause, in the 2005 case Gonzales v. Raich.

The Courier-Herald called Vinson Friday afternoon for further insight into the city ordinance, but he had not called back by press time.

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