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Taking Pot Shots

Whatcom County considers stricter rules for marijuana businesses

Wednesday, March 19, 2014

As the state begins to issue licenses for the legal cultivation of marijuana, Whatcom County Council considers new restrictions that could wipe out half the applicants.

The Washington State Liquor Control Board (WSLCB) last week began issuing the state’s first licenses to produce and process recreational marijuana. Among them are more than 80 qualified large-scale growers in rural Whatcom County who seek a license. The state already restricts the amount of plant canopy that may be produced and prohibits the production of the crop within 1,000 feet of schools, playgrounds and child care centers, public transit centers and other public facilities. Plants must be grown in greenhouses or other enclosed structures, and are subject to tests and trace controls. However, county policymakers are considering additional rules that growers feel are so restrictive as to make the cultivation of marijuana all but impossible in unincorporated areas of the county.

Council placed a 60-day ban on all cultivation of marijuana in the rural county until they could fully consider these changes.

Among restrictions considered by council are additional setbacks of 300 feet from a residence, unless the home is on the same property as the business or the owner of the residence waives that setback. Clustered developments of more than eight homes would require a 1,000 foot setback, as would churches and community centers under the restrictions currently being considered by council.

“State law already serves the purpose of placing limitations on marijuana businesses. State law regulates where businesses can locate, how secure they have to be, who can own the businesses, and their allowed hours of operation,” Ryan Moore of Mt. Baker Gardens noted in comments to council.

“The application window was open for just over 30 days, between Nov. 15 and Dec. 18,” Moore noted. “A location had to be reported on that application. If a county tries to amend its zoning code now, the applicants that have been zoned out have no choice but to take legal action against the county. This is an avoidable waste of resources.”

Other growers noted that potentially hundreds of jobs and millions of dollars of tax revenues could be lost if controls are too restrictive. The law gives new vigor to many farms and nurseries still struggling from the recession, they said.
“When the state marijuana initiative passed, we began to seriously consider growing legal cannabis as a way to fill our greenhouses and improve our income stream,” grower Rick Wright noted. Wright has applied to grow marijuana at Sunbreak Nursery.

“We did our due diligence and followed the activities of the State Liquor Control Board very carefully. When the board issued its rules and regulations for issuing licenses, we made sure we were in compliance and duly applied for a Tier 2 grower/processor license. We also began to prepare our facility for growing marijuana. Our very limited funds were used to purchase equipment and to order young plants in anticipation of receiving the state license.”

Wright and other growers believe the county should have contemplated their changes earlier, before growers had applied to the state and paid their fees.

Local governments around the state were encouraged to consider additional restrictions, even outright banning the cultivation and sale of marijuana, in an opinion issued by the state Attorney General in January. Concerned members of the community and local law enforcement urged council to consider additional controls. Of particular public concern were several large-scale Tier 3 farms of up to 30,000 square feet proposed for the rural county. Tier 2 grow-ops are under 10,000 square feet, or less than a quarter of an acre.

The WSLCB has announced they will issue licenses to all who qualify, regardless of specific pot bans in local jurisdictions.

“There’s nothing in the law that allows us to not issue a license,” said Randy Simmons, deputy director of the WSLCB.

“Additional proposed residential setback requirements are overly restrictive,” attorney Heather Wolf noted on behalf of her clients. “For example, the 300-foot setback requirement would make locating a licensed facility impossible in most rural residential locations. We do not believe any security or other health and safety issues have been documented that would justify such a stringent setback requirement. Rather, this requirement will preclude those who have already submitted licenses.”

Churches with licensed and recognized day care centers are already anticipated under state rules, Wolf noted.

Staff estimated that about half of the qualified county applicants would be prohibited from growing under the new rules being considered by council.

“Finding a location is not easy,” grower Danielle Rosellison noted in comments to the council. “Not only must you find an available warehouse that meets the state’s distance requirements, but you also need to find a landlord who is tolerant of your industry, who is not concerned that the Feds will take her warehouse or that the bank will call her FDIC-insured mortgage due because of who she’s renting to.
“Please don’t make finding a location more difficult than it already is,” she urged council.

Council member Ken Mann said he had serious reservations about placing any more restrictions on the cultivation and sale of marijuana than the state has already created. 

“The more I study this issue, the more convinced I am that the fears related to marijuana grow-ops are based on incomplete data or an incomplete understanding of the WSLCB rules,” Mann said. “We talk about economic development and how important certainty is. We’re violating that principle times ten.”

“One of the purposes of the new law regulating marijuana is to take it out of the hands of illegal drug operations,” Wolf said. “By creating a legal pathway you help restrict the criminal path. The people of Washington intended to legitimize marijuana use, regulate it, tax it. When you thwart the state licensing regime by making it difficult or impossible for these businesses to have a legitimate presence, I think you’re just exacerbating the illegal problem.”

The 2012 initiative enabling the production and sale of marijuana was passed by Whatcom County voters by a 58.6 percent margin, slightly higher than the state average.

“A better solution would be to regulate problematic business locations when issues occur,” Wright observed. “This is how liquor violations are currently handled by the Washington State Liquor Control Board. Please do not pre-emptively judge those of us who wish to pioneer new business opportunities in Whatcom County.”

Whatcom County Council will hold a March 25 public hearing on the proposed rules, which would last for six months. If approved by the council after the public hearing, the ordinance would replace a 60-day moratorium on new applications for marijuana businesses that the council enacted Feb. 11.

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