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HomeMy WebLinkAboutOrdinances - 2018-14 - Amending section 17.66 and 17.60 of the EWMC regulating marijuana uses and medical marijuana. - 8/14/2018City of East Wenatchee Ordinance 2018-14 Page 1 of 14 City of East Wenatchee, Washington Ordinance No. 2018-14 An Ordinance of the City of East Wenatchee amending section 17.66.050 and chapter 17.60 of the East Wenatchee Municipal Code regulating marijuana related uses and medical marijuana; prohibiting medical cannabis cooperatives in all zoning districts of the city; entering legislative findings; providing for severability; and establishing an effective date. Una Ordenanza de la Ciudad de East Wenatchee que modifica la sección 17.66.050, y el capítulo 17.60 del Código Municipal de East Wenatchee que regula los usos relacionados con la marihuana y la marihuana medicinal; prohibir las cooperativas de cannabis medicinal en todos los distritos de zonificación de la ciudad; ingresando hallazgos legislativos; proporcionando la divisibilidad; y establecer una fecha efectiva. 1. Recitals 1.1. The City of East Wenatchee (“City”) is a non-charter code city, duly incorporated and operating under the laws of the State of Washington. 1.2. The City Council deems it in the public interest to replace the existing interim regulations with permanent controls advising the public where recreational marijuana producers, processors, and retail uses may be located in the City of East Wenatchee. 2. Authority. 2.1. RCW 35A.11.020 and RCW 35A.12.190 authorize the City Council to adopt ordinances of all kinds to regulate its municipal affairs and appropriate to the good government of the City. 2.2. RCW 35A.63.100 authorize the City council to adopt ordinances or other action the legislative body deems necessary or implement the goals and objectives of the comprehensive plan. 2.3. RCW 69.51A.250(3)(c) authorizes jurisdictions to prohibit medical marijuana cooperatives. THE CITY COUNCIL OF THE CITY OF EAST WENATCHEE DO ORDAIN AS FOLLOWS: 1. Amendment 1. The City Council amends section 17.66.050 EWMC to read: 17.66.050 Prohibited uses. The following uses are deemed to be prohibited: A. Clinics or hospitals; City of East Wenatchee Ordinance 2018-14 Page 2 of 14 B. Adult entertainment facilities; C. Mortuaries or funeral homes; D. Commercial print shops; E. Rental of trailers; F. Restaurants and cafes; G. Veterinary clinics or hospitals, stables or kennels; H. Painting, detailing, service or repair of any vehicle, including recreational vehicles and water craft; I. Retail sales of goods not made on the premises, except as provided in EWMC 17.66.030(I); J. Outdoor storage of building or construction materials not intended for immediate use in or on the premises; K. Marijuana production, marijuana processing, marijuana retailer, and medical marijuana collective gardens cannabis cooperatives; and L. All other uses which do not comply with the intent of this chapter or the standards set forth in EWMC 17.66.030 and 17.66.060, or the definition of a home occupation set forth in EWMC 17.08.320. 2. Amendment 2. The City Council amends chapter 17.60 EWMC to read: Chapter 17.60 MARIJUANA RELATED BUSINESS REGULATIONS Sections: 17.60.010 Purpose 17.60.020 Applicability and permitted zoning districts 17.60.030 Medical cannabis collective gardens - Prohibited. 17.60.040 Definitions. 17.60.050 Location criteria. 17.60.060 Development standards. 17.60.070 Off-street parking requirements. 17.60.080 Signs. 17.60.090 Landscaping requirements. 17.60.100 Site plan review. 17.60.110 Design standards and guidelines. 17.60.120 State license required. 17.60.130 City business license required. 17.60.140 No city liability – indemnification. 17.60.150 Violations – Penalty. 17.60.160 Additional enforcement. City of East Wenatchee Ordinance 2018-14 Page 3 of 14 17.60.010 Purpose The purpose of this chapter is to: A. To establish reasonable and uniform regulations for state licensed marijuana producers, marijuana processors, and marijuana retailers operating under the provisions of chapter 69.50 RCW and applicable stated administrative rules. B. Ensure that such state-licensed uses are located and developed in a manner that is consistent with the character and standards of this community. C. To promote the health, safety, and general welfare of the citizens of the City of East Wenatchee. 17.60.020 Applicability and Permitted Zoning Districts A. Only state-licensed marijuana producers, marijuana processors, and marijuana retailers may locate in the city of East Wenatchee and then only pursuant to a license issued by the state of Washington. Specific marijuana-related business may be permitted within the following zoning districts: 1. Marijuana processor, marijuana producer, and marijuana retailer businesses may be permitted to operate within the General Commercial (G-C) Zoning District. 2. Marijuana retailers may be permitted to operate within the Central Business District (CBD) Zoning District. 3. Marijuana processor and marijuana producer may be permitted to operate within the General Industrial (I-G) Zoning District. B. No Marijuana-related business may be operated in any residential, neighborhood commercial, light commercial, waterfront mixed use or mixed-use zoning district. C. No use that purports to be a marijuana producer, processor or retailer, as defined and regulated herein that was engaged in that activity prior to the enactment of this chapter or Ordinance 2014-01 shall be deemed to have status as a legally established use or entitled to claim legal non-conforming use status. 17.60.030 Medical cannabis collective gardens - Prohibited. Collective gardens as defined in RCW 69.51A.085 are prohibited in all zoning districts within the city of East Wenatchee. As authorized by RCW 35A.82.020, the City will not issue a business license to any person operating or proposing to operate a collective garden. A. Medical marijuana cooperatives. Cooperatives as provided for in RCW 69.51A.250 are prohibited in all zoning districts. B. Individual medical marijuana growing: Qualifying patients or designated providers may grow up to the amounts authorized in RCW 69.51A.210 under the following provisions. 1. The grow operation shall comply with all locally applicable land use, City of East Wenatchee Ordinance 2018-14 Page 4 of 14 development, and zoning regulation requirements, and future amendments. 2. The grow operation shall comply with rules and regulations adopted by the Washington State Liquor and Cannabis Board. 3. The property must be the primary residence of the qualifying patient or designated provider. 4. No more than 15 plants may be grown on the premises even if multiple qualifying patients or designated providers reside in the same housing unit or on the property. 5. Outdoor growing is prohibited. 6. All grow operations must be indoors within the primary dwelling or an accessory structure. If the grow operation is located in an accessory structure the following provisions apply: a. Accessory structures shall be permanent structures constructed in compliance with the International Building Code as adopted by the City. b. Accessory structures shall not include cargo containers, recreational vehicles or other similar types of structures. c. The accessory structure must have a complete roof enclosure supported by connecting walls extending from the ground to the roof and a foundation, slab, or equivalent base to which the floor is securely attached. The walls of the accessory structures shall be completely opaque (i.e. no light or image can be detected through the material). Plastic sheeting, regardless of gauge, or similar products do not satisfy this requirement and. The materials used for the walls must be typical building materials, no cardboard or other nonstructural materials may be used. The roof of the structure may include translucent panels allowing sunlight to penetrate. The material used for the translucent panels must be rigid and must comply with the adopted snow load requirements. d. The accessory structure must be located behind the front yard setback and shall observe a 5 foot setback from all other property lines. The structure must be placed at least 5 feet from any other structure on the premises. 7. Structures where marijuana is grown or stored must be equipped with ventilation/air filtration systems so that no odors are detectable from neighboring properties or public rights of way. 8. Home processing of medical marijuana shall not involve any combustible method and shall comply with all federal, state, and local laws and rules, including all standards adopted by the Washington State Liquor and Cannabis Board. 17.60.040 Definitions The definitions established in RCW 69.50.101, RCW 69.51A.010 and WAC 314-55- City of East Wenatchee Ordinance 2018-14 Page 5 of 14 010, and future amendments, are adopted by this reference, as supplemental and applicable to this chapter. In addition to those definitions adopted by reference, the terms used in this chapter shall have the following meanings. A. "Child care center" means an entity that regularly provides child day care and early learning services for a group of children for periods of less than twenty-four hours licensed by the Washington state department of early learning under chapter 170-295 WAC. B. “Church or place of worship” means a building or structure, or groups of buildings or structures, that by design and construction are primarily intended for conducting organized religious services and associated accessory uses. C. “Collective gardenCooperative" means the growing, production, processing, transportation, and delivery of cannabis (i.e. marijuana), by qualifying patients or designated providers for medical use, as set forth in Chapter 69.51A.250 RCW. D. "Dispense" means the interpretation of a prescription or order for a controlled substance and, pursuant to that prescription or order, the proper selection, measuring, compounding, labeling, or packaging necessary to prepare that prescription or order for delivery. E. "Dispenser" means a practitioner who dispenses. F. "Elementary school" means a school for early education that provides the first four to eight years of basic education and recognized by the Washington state superintendent of public instruction. G. "Game arcade" means an entertainment venue featuring primarily video games, simulators, and/or other amusement devices where persons under twenty-one years of age are not restricted. H. "Library" means an organized collection of resources made accessible to the public for reference or borrowing supported with money derived from taxation. I. “Licensee” or “marijuana license” means any person or entity that holds a marijuana license, or any person or entity who is a true party of interest in a marijuana license, as outlined in WAC 314-55-035. J. "Marijuana" or "marihuana" means all parts of the plant Cannabis, whether growing or not, with a THC concentration greater than 0.3 percent on a dry weight basis; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. The term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. K. "Marijuana concentrates" means products consisting wholly or in part of the City of East Wenatchee Ordinance 2018-14 Page 6 of 14 resin extracted from any part of the plant Cannabis and having a THC concentration greater than sixty percent. L. "Marijuana-infused products” means products that contain marijuana or marijuana extracts and are intended for human use. The term "marijuana-infused products" does not include useable marijuana. M. "Marijuana processor" means a person licensed by the state liquor and cannabis board to process marijuana into useable marijuana and marijuana-infused products, package and label useable marijuana and marijuana-infused products for sale in retail outlets, and sell useable marijuana and marijuana-infused products at wholesale to marijuana retailers. N. "Marijuana producer" means a person licensed by the state liquor and cannabis board to produce and sell marijuana at wholesale to marijuana processors and other marijuana producers. O. “Marijuana-related business” means a business operating under a license issued in accordance with WAC 314-55 as a marijuana producer, a marijuana processor, or a marijuana retailer. P. "Marijuana retailer" means a person licensed by the state liquor and cannabis board to sell marijuana concentrates, useable marijuana and marijuana-infused products in a retail outlet. Q. "Medical use of marijuana or cannabis" means the manufacture, production, possession, transportation, delivery, ingestion, application, or administration of marijuana for the exclusive benefit of a qualifying patient in the treatment of his or her terminal or debilitating medical condition. Q.R. "Perimeter" means a property line that encloses an area. R.S. "Playground" means a public outdoor recreation area for children, usually equipped with swings, slides, and other playground equipment, owned and/or managed by a city, county, state, or federal government. S.T. "Public park" means an area of land for the enjoyment of the public, having facilities for rest and/or recreation, such as a baseball diamond or basketball court, owned and/or managed by a city, county, state, federal government, or metropolitan park district. Public park does not include trails. T.U. "Public transit center" means a facility located outside of the public right of way that is owned and managed by a transit agency or city, county, state, or federal government for the express purpose of staging people and vehicles where several bus or other transit routes converge. They serve as efficient hubs to allow bus riders from various locations to assemble at a central point to take advantage of express trips or other route to route transfers. U.V. "Recreation center or facility" means a supervised center that provides a broad range of activities and events intended primarily for use by persons under twenty-one years of age, owned and/or managed by a charitable nonprofit City of East Wenatchee Ordinance 2018-14 Page 7 of 14 organization, city, county, state, or federal government. V.W. “Residential dwelling unit” means a building or portion thereof designed exclusively for a residential occupancy including one-family, two-family, three-family and multifamily dwellings. W.X. "Retail outlet" means a location licensed by the state liquor and cannabis board for the retail sale of marijuana concentrates, useable marijuana, and marijuana-infused products. X.Y. "Useable marijuana" means dried marijuana flowers. The term “useable marijuana" does not include either marijuana-infused products or marijuana concentrates. Y.Z. "Secondary school" means a high and/or middle school: A school for students who have completed their primary education, usually attended by children in grades seven to twelve and recognized by the Washington state superintendent of public instruction. 17.60.050 Location criteria. A. Separation requirements. No marijuana producer, processor or retail outlet may locate within 1,000 feet of the perimeter of the grounds of any of the following entities. The distance shall be measured as the shortest straight line distance from the property line of the proposed building/business location to the property line of the entities listed below: 1. Elementary or secondary school; 2. Playground; 3. Recreation center or facility; 4. Child care center; 5. Public park; 6. Public transit center; 7. Library; 8. Game arcade (where admission is not restricted to persons age twenty-one or older); B. If a use listed in subsection A, above, locates within 1,000 feet of a licensed marijuana-related business after the marijuana-related business is lawfully established such use shall not benefit from the separation requirements of this subsection. A marijuana-related business is lawfully established under the East Wenatchee Municipal Code if it is located and operating in compliance with the requirements of this chapter. C. No marijuana-related business may operate within a residential structure, within any other structure used for human habitation, or within a structure physically attached to a residence or a place of human habitation. When a City of East Wenatchee Ordinance 2018-14 Page 8 of 14 structure has no human habitation, it means that no people live there on a temporary or permanent basis. D. No marijuana retailer is allowed as a subordinate or accessory use in any land use district. 17.60.060 Development standards. A. A marijuana-related business must comply with the development standards of the underlying zoning district. B. A marijuana-related business must comply with the requirements of all city construction codes including but not limited to building, plumbing, mechanical, and fire. C. No outdoor production or processing is allowed. Marijuana production and processing must be conducted within a fully enclosed and secure structure that complies with the Washington State Building Code, as adopted by the City. The structure must have a complete roof enclosure supported by connecting walls extending from the ground to the roof, and a foundation, slab, or equivalent base to which the floor is securely attached. The structure must be secure against unauthorized entry, accessible only through one or more lockable doors, and constructed of solid materials that cannot easily be broken through, such as 2” by 4” or thicker studs overlain with 3/8” or thicker plywood or equivalent materials. Plastic sheeting, regardless of gauge, or similar products do not satisfy this requirement. D. Buildings for marijuana production and/or processing are classified as an F1 occupancy. All buildings must be equipped with a ventilation and odor control system, designed by a professional engineer. The odor control system must be based on proven technology for the intended purpose. The system designer shall submit certification that the ventilation and odor control system will control odors such that odors cannot be detected at any property line of the parcel on which the marijuana production and/or processing facility is located, at another building or occupancy on the same lot as the marijuana business yet not related to it, and in no case more than one hundred (100) feet from the building. The ventilation and odor control system must remain functional and effective continuously during production and processing. E. Sufficient measures and means of preventing smoke, odors, debris, dust, fluids and other substances from exiting the marijuana-related business must be in effect at all times. In the event that any odors, dust, fluids or other substances exit a marijuana-related business, the owner of the subject premises and the licensee shall be jointly and severally liable for such conditions and shall be responsible for the immediate, full clean-up and correction of such condition. The licensee shall properly dispose of all such materials, items and other substances in a safe, sanitary and secure manner and in accordance with all applicable federal, state and local laws and regulations. F. All fertilizers, chemicals, gases, and hazardous materials shall be handled in City of East Wenatchee Ordinance 2018-14 Page 9 of 14 compliance with all applicable local, state and federal regulations. No fertilizers, chemicals, gases or hazardous materials shall be allowed to enter a sanitary sewer or storm sewer system, nor be released into atmosphere where the business is located. Waste materials generated from any facility must be disposed of in accordance with the plan filed as part of the license application and consistent with WAC 314-55-097. D.G. Marijuana/cannabis extraction systems require an International Fire Code Operational Permit and must comply with IFC Chapter 38 and Section 5307.1 as adopted by the state of Washington. 17.60.070 Off-street parking requirements. The off-street parking requirements shall be as set forth in EWMC 17.72.010, including all future amendments. The table below provides the parking spaces needed for each type of marijuana-related business based upon uses that are similar in nature and intensity based upon Table 17.72.010(G) EWMC. MARIJUANA-RELATED BUSINESS TYPE LAND USE STANDARDS Marijuana producer Nursery or greenhouse 1 space for each 400 s.f. of interior growing area Marijuana processor Wholesale trade, manufacturing, processing, packing, or storage 1 space/1,000 s.f. of GFA plus 1 space/2 employees based upon the annual average of the largest shift Marijuana retailer Retail food or merchandise (1) Up to 2,000 s.f. of GFA: 4 spaces/1,000 s.f. of GFA (2) 2,001–7,500 s.f. of GFA: 3.5 spaces/1,000 s.f. of GFA (3) 7,501–40,000 s.f. of GFA: 2.85 spaces 1,000 s.f. of GFA (4) 40,001+ s.f. of GFA: 2.5 spaces/1,000 s.f. of GFA 17.60.080 Signs. All signage and advertising for a marijuana processor, producer, and retailer must comply with RCW 69.50, WAC 314-55-155, Chapter 15.24 EWMC, and Chapter 17.74 EWMC, including all future amendments. 17.60.090 Landscaping requirements. All developments in this district must comply with the landscaping requirements in Chapter 17.72 EWMC, including all future amendments. 17.60.100 Site plan review. Site plan review and approval pursuant to Chapter 17.80 EWMC shall be required prior to the use of land for any marijuana related business. 17.60.110 Design standards and guidelines. City of East Wenatchee Ordinance 2018-14 Page 10 of 14 Development within this district must comply with the applicable sections of the Greater East Wenatchee Urban Area Design Standards and Guidelines, including all future amendments. 17.60.120 State license required Such facilities and uses may be located only at the designated sites licensed by the state of Washington and fully conforming to state laws. A valid, current license is required from the Washington State Liquor and Cannabis Board for operation of any marijuana, producer, processor or retail outlet. A copy of the state license must be submitted to the City as part of the application for a business license required by EWMC 17.60.120. 17.60.130 City business license required A marijuana processor, producer, and retailer must obtain a City Business License prior to operation of the business. The issuance of a City Business License does not grant any special authority for the production, processing or sale of marijuana. The issuance of a City Business License does not grant any special privilege to violate federal law. Obtaining a City Business License does not provide a licensee with any affirmative defense to a violation of federal law. By accepting a city issued business license, the licensee waives and releases the City, its officers, elected officials, employees, volunteers and agents from any liability for injuries, damages, or liabilities of any kind that result from any arrest or prosecution of business owners, operators, employees, clients or customers for a violation of federal, state or local laws and regulations. 17.60.140 No city liability – Indemnification. The production, processing and retailing of marijuana is and remains illegal under federal law. Nothing herein or as provided elsewhere in the ordinances of the city of East Wenatchee is an authorization to circumvent federal law or provide permission to any person or entity to violate federal law. Only state-licensed marijuana producers, marijuana processors, and marijuana retailers may locate in the city of East Wenatchee and then only pursuant to a license issued by the state of Washington. 17.60.150 Violations – Penalty A. Civil Penalty. A violation of any provision of this chapter is a Class 1 Civil Infraction. B. Separate Offense. Each day during any portion of which a violation of any provision of this chapter is committed or is permitted is a separate offense. 17.60.160 Additional enforcement The remedies found in this chapter are not exclusive. The city may seek any other, available legal or equitable relief. 3. Recitals Adopted as Findings of Fact. The City Council adopts the above recitals as its findings of fact in support of this ordinance. City of East Wenatchee Ordinance 2018-14 Page 11 of 14 4. Findings and Conclusions. The City Council adopts the following findings of fact and conclusions of law: 4.1. Findings of Fact: 1. The proposal includes several text amendments to the East Wenatchee Municipal Code (EWMC) Title 17 – adopting regulations on marijuana related uses; permitting the production, processing and retailing of marijuana as regulated pursuant to Washington State Initiative No. 502 in certain commercial and industrial zoning districts; and prohibiting medical cannabis collective gardens in all zoning districts of the city. 2. Douglas County has adopted city codes for application within the unincorporated areas located inside the urban growth area (UGA) boundary. Any amendments adopted by the city are subsequently adopted by Douglas County. The proposal will be applicable within the commercial zoning districts in the City of East Wenatchee, WA and the commercial and industrial districts in the unincorporated area of Douglas County within the Greater East Wenatchee Urban Growth Area 3. The City adopted a comprehensive plan in accordance with the Growth Management Act (GMA), RCW Chapter 36.70A, which is a generalized, coordinated land use policy statement of the City and the Urban Growth Area. The Greater East Wenatchee Area Comprehensive Plan (GEWA) includes goals and policies that encourage protection of residential areas and economic development. 4. Chapters 35A.63 and 36.70A RCW authorize the City to adopt development regulations governing land use activities. 5. In 2012, the voters of the state of Washington passed Initiative 502 legalizing the recreational use of marijuana. I-502 directed the Liquor Control Board to develop a process for regulating and licensing for marijuana producer, processor and retailers. 6. An Environmental Checklist was prepared by City Staff on December 14, 2016. A threshold determination and environmental review pursuant to RCW 43.21C the State Environmental Policy Act was completed and a Determination of Non-significance (DNS) was issued on December 14, 2016. It is the determination of the responsible lead agency that no more than a moderate effect on the environment is a reasonable probability as a result of the proposed action. 7. In accordance with the provisions of RCW 36.70A, the proposed development code amendment was transmitted to the Washington State Department of Commerce and other state agencies on December 16, 2016 initiating the state review and comment period and requesting expedited review. City of East Wenatchee Ordinance 2018-14 Page 12 of 14 8. Commerce acknowledged receipt of the proposed amendment on December 16, 2016 and assigned the project Material ID#23194. 9. On January 9, 2017, Commerce transmitted an e-mail approving expedited review. 10. On July 27, 2018, a Notice of Public Hearing was published in the Wenatchee World. 11. The planning staff file of records, including the staff report, noticing documents, and SEPA review documents are admitted into the record. 12. An open record public hearing was held by the East Wenatchee Planning Commission on August 7, 2018. 13. Any Conclusion of Law that is more correctly a Finding of Fact is hereby incorporated as such by this reference. 4.2. Conclusions of Law: 1. The proper exercise of the threshold determination process as required by WAC 197-11 is than an environmental impact statement is not required to be prepared for this project. 2. The proposed text amendment is consistent with and implements the goals and policies in the comprehensive plan. 3. The proper legal requirements of RCW 36.70A.106 and Title 19 EWMC were met and the community was given the opportunity to comment on the proposal at duly noticed public workshops and a public hearing. 4. Approval of the proposal will not be detrimental to the public health, safety, and general welfare. 5. Any Finding of Fact that is more correctly a Conclusion of Law is hereby incorporated as such by this reference. 5. Transmittal. As required by RCW 36.70A.106, the City Council directs the Community Development Director to transmit this Ordinance to the Washington State Department of Commerce. 6. Severability. If a court of competent jurisdiction declares any provision in this Ordinance to be contrary to law, such declaration shall not affect the validity of the other provisions of this Ordinance. 7. Publication. The City Council directs the City Clerk to publish a summary of this Ordinance. The summary shall consist of the title of this Ordinance. The City Council directs the City Clerk to publish a copy of this Ordinance on the City’s website. 8. Effective Date This Ordinance becomes effective five days after the date its summary is published.