Pubdate: Sun, 04 Aug 2013
Source: Seattle Times (WA)
Copyright: 2013 The Seattle Times Company
Contact:  http://seattletimes.nwsource.com/
Details: http://www.mapinc.org/media/409
Author: Bob Young

WASHINGTON CITIES VARY IN WELCOMING POT COMMERCE

'A Lot of Unknowns'

Some Moving Ahead With Zoning Laws, Others Issuing Moratoriums

Some Washington cities, such as Seattle and Shoreline, are moving 
ahead with zoning and other local rules for a new state-sanctioned 
recreational-marijuana industry.

Others, including Kent and University Place, are girding for battle.

"I don't think an individual or the state has the right to force us" 
into welcoming pot commerce, said Steve Victor, city attorney for 
University Place. "I hope we don't have to defend ourselves in court, 
but we are prepared to."

More cities, though, seem dazed and confused.

The Association of Washington Cities (AWC) surveyed 85 cities 
representing 2.4 million residents. Those cities raised concerns 
about the costs of enforcing pot laws, youth access to pot and 
community character. As state officials prepare to finalize rules on 
Aug. 14 for a seed-to-store system and determine the locations of 
retail stores, cities don't know what to expect. Two stores? Ten stores? None?

"There are a lot of unknowns. We don't have official rules yet. We 
don't have numbers of stores. We don't know what the feds are going 
to do," said Candice Bock, government relations advocate for AWC. 
"What I hear a lot is: 'This wasn't our idea. You've got state law 
saying one thing, federal law saying another. Why do I have to sort 
this out?' "

But state officials are steaming ahead. Legal pot is coming. The 
federal government remains Sphinx-like, with the Department of 
Justice saying only that it continues to review the legalization 
efforts in Washington and Colorado. And everyone seems to agree the 
courts will have to sort out the rights of cities to legislate 
against legal pot businesses.

The Seattle City Council expects to adopt zoning rules Aug. 12 that 
would allow growers and retailers in industrial and commercial zones, 
but not in residential or historic areas. Seattle already is home to 
about 150 medical-marijuana businesses.

Council members have said they're trying to get out in front of an 
industry emerging from the shadows. By limiting where pot businesses 
can be, council members say, they're keeping them from popping up 
everywhere in the city.

Shoreline also is preparing to comply with the state law in its own 
interest. Its city council is scheduled to discuss local regulations 
for recreational pot next month. "State voters have decided it is 
coming, and we want to prepare for it and make sure we're ahead of it 
and not playing catch-up," said Eric Bratton, a spokesman for the city.

King County has come up with proposed zoning for a slightly different reason.

The new law bans pot businesses within 1,000 feet of venues 
frequented by youth. Given that restriction and the resistance of 
some cities, county officials are concerned that pot merchants will 
be driven to unincorporated areas, which don't have the policing that 
might be needed. The county's proposal deals only with unincorporated 
areas, steering pot businesses to business, industrial and agricultural zones.

Strategies are different in Kent and University Place.

In the state's sixth-largest city, the Kent City Council has imposed 
a moratorium on pot businesses. Mayor Suzette Cooke said she's 
opposed to them because her oath requires her to uphold city, state 
and federal law, including the latter's prohibition of all marijuana. 
If the council, which voted 4-3 for the moratorium, were to change 
its position, she said, then she'd reconsider hers. Then, she 
reasoned, she'd be upholding the oath for two of three entities - the 
city and state - to which she swore allegiance.

Council President Dennis Higgins, who voted against the moratorium, 
said Kent shouldn't "put its head in the sand" and should be 
regulating legal pot.

"By being proactive, we will head off all kinds of costs for the 
city, for police, for detective work for having to deal with bad 
actors instead of people operating in good faith under the law," Higgins said.

In University Place, a city of 31,500 southwest of Tacoma, Victor, 
the city attorney, emphasizes that the city's opposition is based 
strictly on legal issues, not morality. Because of the federal ban on 
all pot, Victor said, city leaders are worried about losing federal 
grants and having city employees prosecuted if the city allowed 
stateregulated marijuana commerce. "Initiative 502 promised voters 
something it can't deliver," Victor said. "State law can't change federal law."

The state Liquor Control Board, the agency charged with implementing 
legal marijuana, is attempting a balancing act.

On one hand, the new law does not contain an opt-out clause for 
cities. The board is prepared to issue licenses even in cities with 
moratoria and other obstacles.

On the other, the board's rules say that legal pot businesses must 
comply with city and county regulations.

In a conflict between state and local law, the state is likely to 
prevail, said Ryan Espegard, a lawyer with Gordon Honeywell Thomas in 
Seattle, representing pot entrepreneurs.

On issues such as drivers' licenses and historic preservation, courts 
have upheld the supremacy of state law, Espegard said.

The same would appear likely for legal pot, he said, because the 
state law does not allow cities to opt out and it gives the state 
sweeping authority to regulate the new industry.

But there is a wrinkle. The proposed rules say licensed pot 
businesses are not authorized to violate local rules. Cities could 
use this, Espegard said, to argue that if the state had "complete 
authority, they may have delegated it back to cities with this section."

"Courts are certainly to be the ones who will determine how this will 
play out," Espegard said, in all likelihood after a state-licensed 
pot merchant sues a recalcitrant city like Kent or University Place.

Victor is confident University Place would prevail in federal court 
because federal law would trump or preempt state law. "It's an almost 
certain outcome," he said.

But the city would have to get sued by a shut-out entrepreneur for 
that legal question to be resolved.

Meanwhile, "We have a kind of stalemate in which local jurisdictions 
that choose to participate certainly can," Victor said, "but no one 
has yet attempted to coerce or muscle a local jurisdiction into 
participating and violating (federal) grant contracts."

Espegard said his advice to entrepreneurs is to look for sympathetic 
jurisdictions. He'd advise staying away from Kent, he said, and 
entering a city like Bellevue with caution. Bellevue, which has 
resisted medical marijuana dispensaries, has just begun considering 
zoning regulations for legal pot businesses. "They may have 
restrictive zoning, but I doubt they're going to zone it out 
completely," he said.

"It's going to be a little bumpy," said Brian Smith, spokesman for 
the Liquor Control Board. "A lot of local communities are looking at 
what [the new law] means to them, and I think a lot are looking 
through the lens for the first time."

AWC's Bock said she senses a new urgency among cities as they realize 
the federal government has not intervened and state rules soon will 
be finalized and licenses issued in December. "We've tried to get 
that message out to cities," she said, "that now is the time to have 
conversation in your community about what you want to do."

She expects some cities to continue their resistance. And for those, 
she said, "I fully expect litigation, and the courts will end up 
being the ones who sort it out."
- ---
MAP posted-by: Jay Bergstrom