Agenda - Planning Commission - 08/06/2015

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July 10, 2015 1 Volume 9 1 Issue 13 Zoning Bulletin DECISION: Judgment of court of appeals affirmed. The Supreme Court of Washington held that the MUCA, which authorizes qualifying patients to participate in "collective gardens" to pool resources and grow medical marijuana, did not preempt Kent's zoning Ordinance, which prohibited collective gardens. In so holding, the court explained that an ordinance is valid under Washington Constitution art. XL, § 11 "unless: (1) the Ordinance conflicts with some general law; (2) the Ordinance is not a reasonable exercise of the [local government's] police power; or (3) the subject matter of the Ordinance is not local." Here, the Coalition had contended only that the Ordinance conflicted with the MUCA, a general law. The court explained that the MUCA would preempt the Ordinance if: (1) there was express legislative intent for the MUCA to preempt the field of medical marijuana regulation; (2) if field preemption of medical marijuana regulation was implied by the MUCA; (3) if the Ordinance conflicted with the MUCA by forbidding what the MUCA permitted or allow- ing what the MUCA prohibited. The court found the MUCA had no express preemption clause. With regard to implied preemption, the court said that when a state statute expressly provides for local jurisdiction over a subject, state law does not impliedly preempt the field of that subject. Here, the court found that the MUCA expressly contemplated local regulation of medical marijuana. The MUCA provides that cities and towns may adopt and enforce "any of the following pertaining to the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction: Zoning requirements, business licensing requirements, health and safety requirements, and business taxes." (RCW 69.51A.140(1).) Given that express state law recognition of local jurisdiction over medical marijuana regulation, the court concluded that the MUCA does not impliedly preempt the field of medical marijuana. With regard to conflict preemption, the court said that the MUCA would preempt the Ordinance only if the Ordinance "directly and irreconcilably conflicts with the statute." The Coalition had argued that the MUCA ir- reconcilably conflicted with the Ordinance because the MUCA granted a right to engage in a collective garden under RCW 69.51A.085, yet the Ordinance prohibited the same activity. The court disagreed with the Coalition's argument. Instead, the court found that the plain text of RCW 69.51A.140(1), and its statutory context, "demonstrate that it provides local jurisdictions the authority to enact zoning requirements pertaining to the land use activity of participating in a collective garden." In so finding, the court also rejected the Coalition's argument that the zoning power allowed localities under RCW 69.51A.140(1) over the "production" and "processing" of medical marijuana applied only to commercial or licensed producers. The court found the plain language made clear that zoning authority under the MUCA included over noncommercial collective gardens. Finally, the court addressed whether the Ordinance was otherwise consis- tent with state law. The court found that the Kent's Ordinance concerned only a land use—namely zoning requirements for "the growing, production, processing, transportation and delivery of cannabis" in a collective garden. 6 © 2015 Thomson Reuters