Agenda - Planning Commission - 06/07/2018

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May 10, 2018 I Volume 12 I Issue 9 Zoning Bulletin DECISION: Judgment of Superior Court affirmed. The Court of Appeals of Washington, Division 2, held that the County Ordinance was not preempted by the UCSA, and that the County retained its zoning authority to ban retail marijuana sales within unin- corporated areas of Clark County. In so holding, the court explained that, under article XI, section 11 of the Washington Constitution, counties could "make and enforce all regulations that do not conflict with state law." Thus, the court presumed that the County had the regulatory authority to enact the Ordinance, and that Ordinance was valid unless preempted. The court explained that the Ordinance would be preempted by the UCSA, and inconsistent with article XI, section 11, if the Ordinance either: "prohibit[ed] what the state law permit[ed]"; "thwart[ed] the legislative purpose of the statu- tory scheme"; or "exercise[d] power that the statutory scheme did not confer on local governments." The court found that the Ordinance did not conflict with the UCSA under any of those reasons. The court found that the Ordinance did not prohibit what the UCSA permitted. The UCSA permitted the retail sale of marijuana, but did not grant retailers an affirmative right to sell marijuana, said the court. Moreover, the court found that nothing in the UCSA stated that a county could not prohibit retail recreational marijuana sales. The court further found that while the UCSA authorized the Board to designate the maximum number of retail marijuana sales licenses in each county, the UCSA did not set a minimum number. Moreover, the court noted that the Board's regulations explicitly provided that a marijuana retail license shall not be construed as "a license for, or an approval of, any violations . . . of zoning ordinances." (WAC 314-55-020(15).) In short, the court concluded that the UCSA did not create a right to engage in retail marijuana sales in the County (which was the activity prohibited by the Ordinance). The Court also found that the Ordinance did not "thwart the legisla- tive purpose" of the UCSA. The court found that the purpose of the UCSA was to "allow[ ] and regulate[ ] the sale of marijuana." Since there was no mandate under the UCSA to "maximize or encourage sales," the Ordinance's ban on marijuana sales did not frustrate such a mandate, concluded the court. Moreover, the court found that subsequent amendments to the UCSA "strongly indicate[d] that the legislature intended to preserve the right of local governments to ban retail [marijuana] stores." Such amend- ments recognized that local jurisdictions might ban the retail sales of marijuana, and encouraged local governments to allow marijuana sales by providing a share of marijuana excise tax revenues to those local governments that allowed retail sales of marijuana. Thus the court found that, "[b]y expressly contemplating that local jurisdictions can `prohibit 4 © 2018 Thomson Reuters