The Garden of Good and Evil

Bellingham slows 
grow-ops as state writes their rules

Wednesday, July 10, 2013

Faced with interest growing like a weed alongside continued uncertainty about weed, Bellingham City Council last week dropped in place two ordinances designed to limit two distinct but intertwined branches of softened state policy regarding the production of marijuana.

The first adopts interim zoning for the cultivation of medical marijuana for personal use, permitting and clarifying those uses under city guidelines. The second, potentially more sweeping policy imposes a 12-month moratorium on cultivation and distribution of marijuana for uses apart from medical prescription—in effect, dealing with the business side of recreational marijuana. The new policies were introduced in council’s afternoon session; they were read and adopted in the evening session.

Critics howled the following day, saying the restriction sends a chilling message to emerging new businesses. State law already provides clarity on what is permitted and not permitted, critics said. The growing, processing and retailing of marijuana is already illegal, will become legal under a timetable governed by the state, and requires no additional prohibition by the City of Bellingham. Perhaps worst of all, the public had no warning about the decision… by design.

“We’re in a limbo,” City Council member Michael Lilliquist admitted. “People are in fact setting up businesses and making plans for marijuana operations, even though operations cannot actually begin until Dec. 1 at the earliest.”

Indeed, some growers are already at work raising marijuana in mixed-use areas like Fairhaven, employing a hazy space in the law that looks the other way when pot is grown in community gardens for medical consumption. Police (and landlords) have relaxed their efforts to investigate pot wherever they smell it, and in response growers have increased the number of plants they’re cultivating. Pot has a pungent smell and, at least for now, a particular clientele seeking its mysteries. Neighbors have complained; and city officials worry some of these gardens could grandfather and gain legal rights under obsolete rules—particulary if the city remains silent.

So, yes, council’s decision was both preemptive and proscriptive.

“To me, this is all about being cautious, very cautious, to avoid what could be serious legal headaches, which could drain public dollars and resources,” Lilliquist said. “It may be better just to put everything on hold until the state finalizes its rules.

“I would be surprised and disappointed if the administration does not have final rules ready to go long before the 12-month interim rules expire,” Lilliquist emphasized. Council will learn more from the public at their Aug. 12 session.

Considerable ambiguity exists between Washington, D.C., and Washington State concerning marijuana use, with the state far afield of the rest of the nation. Possession of the drug is still subject to penalty in most states, and the Feds frown on the movement of the drug across borders. At the direction of voters last fall, new state laws allow people to not only possess small amounts of marijuana, but also obtain it legally through licensed distributors.

The rules, approved by the Washington State Liquor Control Board during a meeting in Olympia last week, establish regulations for marijuana producers, processers and retailers and set the stage for legal recreational marijuana use to begin early next year. The Liquor Control Board released preliminary draft rules in late May after board staff members spent long hours visiting marijuana grow houses and studying the science of pot.

Four public hearings on Wednesday’s proposed rules, which included several key changes, will be held across the state Aug. 6-8. They are scheduled to take effect Sept. 16. At that point, the Washington Liquor Control Board will begin accepting applications for marijuana producers, processers and retailers.

The draft rules shorten the hours of operation for marijuana businesses, which may be open from 8am to 12am, and remove requirements for a signed affidavit from a landlord to house a marijuana business. They also strengthen requirements for child-proof packaging and restrict advertisements that may appeal to youths, among other things.

The biggest change: Marijuana may be grown outdoors with secure fencing and surveillance and is not limited to indoor facilities.

These are all pieces in motion for the City of Bellingham and other cities at work on the changes to municipal code and zoning that would define businesses of this kind. Outdoor cultivation, in particular, is a new and challenging mutation to be absorbed into the DNA of municipal code. But voters insisted on those changes when they approved Initiative 502 last November, decriminalizing the possession of small amounts of marijuana by adults.

“The administration has been looking into this for some time and making preparations, certainly in earnest since the voters approved I-502 back in November,” Lilliquist said. “In fact, back in March I made a motion, unanimously supported by the City Council, to request the administration work on creating zoning ordinances and regulations necessary to respond to the changes in state law on marijuana. The problem is, this is a moving target. We can’t finalize our local rules until the state does. As things stand, some of those state rules are clearly written into the initiative, and other rules have not even been drafted yet.”

The state and its cities are certainly blazing new ground, and there are few ready models about how to proceed. Marijuana, even for medical use, is still prohibited in most states. Growing and distributing marijuana for sale across state lines remains a federal crime. In fact, growing and distributing marijuana in Washington remains on the books as a crime.

In 1998, Washington voters approved Initiative 692 by a large margin, allowing qualified patients to use and possess marijuana by prescription from their physician. The law was designed to shield physicians and primary caregivers of these patients against criminal prosecution or administrative actions by the state, while providing patients an affirmative defense in potential prosecution.

The law, and subsequent review by the Legislature, did not provide a clear path to cultivate marijuana for medical use. Courts exercised a varied sort of leniency, based on the recognition that if a patient has a right to a drug, the patient must also have access to the drug. But granting business licenses to quasi-legal businesses potentially exposed the City of Bellingham. In 2012, on the advice of legal counsel, the city stopped accepting applications for new dispensaries and moved to shut them. Growers shifted their efforts away from a licensed business model to “community gardens.”

In November, voters expressed themselves more fully on the issue of marijuana use, broadly decriminalizing moderate use among adults and establishing clear guidelines on how marijuana for personal use may be cultivated and distributed. Initiative 502, frankly, doesn’t care whether the use is medical or not. And the framework for distributing marijuana, it turns out, is similar to the state’s new model for privatized liquor sales.

Mayor Kelli Linville actively supported the Initiative 502. So did a majority of Bellingham City Council.

In key ways, the clarity of I-502 actually assists with the zoning issues the city must resolve. Under the law, the liquor control board will not issue a license for any premises within 1,000 feet of schools, playgrounds, recreation centers, child care centers, public parks or any other public area you might imagine. Anticipating a high volume of product, the city will likely restrict licensed growers to industrial or light industrial zones.

How the medical side, currently served by community gardens, may dovetail into this is less certain, but city policymakers may consider some harmonization of the rules. The general availability of marijuana to wider uses may make tolerance of community gardens a moot issue, a relic of a world in which medical marijuana could not in any other fashion be obtained.

“I think, from a planning perspective, staff would like to see the rules for both medical and recreational marijuana to be pretty similar,” Assistant City Attorney Alan Marriner said. “From the state level you’ve got rules that are coming from the liquor control board, dealing with the production, processing and retailing of marijuana, including licensing and taxing. And then you’ve got medical marijuana that allow for collective gardens and personal cultivation not subject to similar taxes. Unless the rules are pretty similar—and the taxes are pretty similar—you’ll see people opting for the medical marijuana rules.”

“Harmonization might come between commercial production facilities and similar ‘commercial scale’ collective gardens,” Lilliquist speculated. “Harmonization might come between commercial retailing operations and similar ‘store fronts’ for collective gardens.”

This article was assisted with material from Associated Press.

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