Draft ORDINANCE for Option 3; Reduced scale collective garden in a qualified patient s residence

Transcription

1 Draft ORDINANCE for Option 3; Reduced scale collective garden in a qualified patient s residence CITY OF LACEY AN ORDINANCE OF THE CITY OF LACEY, WASHINGTON ESTABLISHING REGULATIONS AND ZONING CONTROLS FOR MEDICAL CANNABIS. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LACEY, WASHINGTON, as follows: WHEREAS, federal law, since 1970, has prohibited the manufacture and possession of marijuana as a Schedule I drug, based on the federal government's categorization of marijuana as having a high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment; and WHEREAS, the voters of the State of Washington approved Initiative 692 (codified as RCW 69.51A in November 1998); and WHEREAS, the intent of Initiative 692 was that qualifying "patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law,"(rcw 69.51A.005), however, specifying that nothing in the law "shall be construed to supersede Washington state law prohibiting the acquisition, possession, manufacture, sale or use of marijuana for non-medical purposes" (RCW 69.51A.020); and WHEREAS, in 2011 the Washington State Legislature passed ESSSB 5073, which permits qualifying patients "to create and participate in collective gardens for the purpose of producing, processing, transporting, and delivering cannabis for medical use," provided no more than ten qualifying patients participate, a collective garden does not contain more than 15 plants per patient up to a total of 45 plants per garden, and the garden does not contain more than 24 ounces of useable cannabis per patient and up to a total of 72 ounces of useable cannabis per garden; and WHEREAS, the majority of ESSSB 5073 was vetoed by the governor based upon its conflicts with Federal law and seeing no options available to state and local governments to properly manage the medical use of marijuana under the Federal Governments position on this topic, the Governor of the state of Washington and the Governor of Rhode Island, another state facing similar challenges, submitted a petition to the Federal government asking for marijuana to be reclassified from a schedule I drug to a schedule II drug; and WHEREAS, The petition submitted to the Federal Government by the Governors of the State 1 P age

2 of Washington and Rhode Island provides evidence that (1) cannabis for medical purposes has a relatively low potential for abuse, especially in comparison to other schedule II drugs; (2) the medical community has concluded that cannabis has accepted medical use treatment in the United States; and (3) cannabis has accepted safety for use under medical supervision and pharmacy based access and concludes that the long-standing classification of medical use of cannabis in the United States as an illegal Schedule I substance is fundamentally wrong and should be changed ; and WHEREAS the petition states it is now the DEAs responsibility to make appropriate decisions and update the scheduling of drugs based upon changing scientific evidence and the opinion of the medical community. and WHEREAS, RCW 69.51A.060(1) provides that it is a class 3 civil infraction to display medical cannabis in a manner or place which is open to view of the general public, which would include growing plants; and WHEREAS, Section 1102 of ESSSB 5073 allows local jurisdictions to adopt zoning requirements, business license requirements, health and safety requirements, and impose business taxes; and WHEREAS, because the land use impacts of growing marijuana in quantities allowed by the State of Washington have been experienced in other jurisdictions, the City of Lacey may look to the experiences of other cities and counties in adopting zoning regulations for collective gardens; and WHEREAS, Section 1101(2) of ESSB 5073 exempts cities and their officers and employees from civil or criminal liability for actions taken in good faith under Chapter 69.51A and within the scope of their assigned duties and in carrying out such duties, law enforcement needs to be able to readily distinguish plants growing in compliance with the laws versus those that are not; WHEREAS, the Lacey City Council therefore believes that certain zoning regulations to address collective gardens are necessary, and based upon the Lacey Planning Commission study of this topic, testimony at the public hearing and referral of several options for consideration the land use impacts of collective gardens have been identified and zoning provisions developed; and WHEREAS, Given conflicting Federal and State law and an absence of state oversight the most prudent method of application of state law for medical marijuana will involve the least oversight and responsibility possible; and WHEREAS compelling issues of public safety demand application of standards and guidelines for this activity; and WHEREAS, the Lacey Planning Commission has recommended a framework of standards and guidelines that can be applied to promote a viable and safe environment for the Lacey 2 P age

3 community, while allowing opportunities for qualified patients to access medical marijuana as provided for under chapter 69.51A RCW; and WHEREAS, based on an estimate that four to five percent of residents, comparable to other jurisdictions, are legitimate medical cannabis users, Lacey may have over 1,700 qualified patients using medical cannabis. Patient numbers from existing cooperatives in Lacey with Lacey or Lacey growth area addresses list over 4,000 qualified patients. WHEREAS, the City of Lacey believes that the medical use of cannabis should be conducted in a safe and fair manner for the health, safety and welfare of the community. WHEREAS, the City of Lacey acknowledges federal prohibition but wants to respond to the changes in state law in a responsible manner that will minimize impacts on patients, providers, and the health, safety, and welfare of the community. WHEREAS, the Council believes this action represents the best and most appropriate means of balancing the needs of authorized patients to obtain medical marijuana under state law in conflict with a position of the Federal government that is Fundamentally wrong as stated in the Governor s petition to reclassify marijuana; and WHEREAS the Council believes this action is taken in good faith as defined in Sections 1101(2) and 1102(1) of ESSSB 5073; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LACEY, WASHINGTON, AS FOLLOWS: Section 1. Definitions: (A) "Cannabis" means all parts of the plant Cannabis, whether growing or not; 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. For the purposes of this ordinance, "cannabis" 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 there from, fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. The term "cannabis" includes cannabis products and useable cannabis. (B) "Cannabis products" means products that contain cannabis or cannabis extracts, have a measurable THC concentration greater than three-tenths of one percent, and are intended for human consumption or application, including, but not limited to, edible products, tinctures, and lotions. The term "cannabis products" does not include useable cannabis. The definition of "cannabis products" as a measurement of THC concentration only applies to the provisions of this ordinance and shall not be considered applicable to any criminal laws related to marijuana or cannabis. 3 P age

4 (C) "Church" means a structure or leased portion of a structure, which is used primarily for religious worship and related religious activities. (C) "Collective Garden" means those gardens authorized under Section 403 of ESSSB 5073 (RCW 69.51A.085),which means qualifying patients sharing responsibility for acquiring and supplying the resources required to produce and process cannabis for medical use such as, for example, a location for a collective garden; equipment, supplies, and labor necessary to plant, grow, and harvest cannabis; cannabis plants, seeds, and cuttings; and equipment, supplies, and labor necessary for proper construction, plumbing, wiring, and ventilation of a garden of cannabis plants. (D) "Indoors" means within a fully enclosed and secure structure that complies with the International Building Code as adopted by Chapter of the Lacey Municipal Code, that has 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. (E) "Legal parcel" means a parcel of land for which one legal title exists. (F) "Medical use of cannabis" means the manufacture, production, processing, possession, transportation, delivery, ingestion, application, or administration of cannabis for the exclusive benefit of a qualifying patient in the treatment of his or her terminal or debilitating medical condition. (G) "Outdoors" means any location that is not "indoors" within a fully enclosed and secure structure as defined herein. (H) "Person" means an individual or an entity. (I) "Personally identifiable information" means any information that includes, but is not limited to, data that uniquely identify, distinguish, or trace a person's identity, such as the person's name, or address, either alone or when combined with other sources, that establish the person is a qualifying patient or designated provider. (J) "Plant" means an organism having at least three distinguishable and distinct leaves, each leaf being at least three centimeters in diameter, and a readily observable root formation consisting of at least two separate and distinct roots, each being at least two centimeters in length. Multiple stalks emanating from the same root ball or root system shall be considered part of the same single plant. (K) "Process" means to handle or process cannabis in preparation for medical use. 4 P age

5 (L) "Produce" means to plant, grow, or harvest cannabis for medical use. (M) "Qualifying patient" means a person who: (a) Is a patient of a licensed health care professional in the State of Washington; (b) Has been diagnosed by that licensed health care professional as having a terminal or debilitating medical condition; (c) Is a resident of the state of Washington at the time of such diagnosis; (d) Has been advised by that licensed health care professional about the risks and benefits of the medical use of cannabis; (e) Has been advised by that licensed health care professional that he or she may benefit from the medical use of cannabis; and (f) Is otherwise in compliance with the terms and condition established in RCW 69.51A. The term "qualifying patient" does not include a person who is actively being supervised for a criminal conviction by a corrections agency or department that has determined that the terms of this ordinance and RCW 69.51A are inconsistent with and contrary to his or her supervision and all related processes and procedures related to that supervision. (N) "School" means an institution of learning for minors, whether public or private, offering regular course of instruction required by the Washington Education Code, or any child or day care facility. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education, but it does not include a vocational or professional institution of higher learning, including a community or junior college, college or university. (N) "Terminal or debilitating medical condition" means: (1) Cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; or (2) Intractable pain, limited for the purpose of this ordinance to mean pain unrelieved by standard medical treatments and medications; or 5 P age

6 (3) Glaucoma, either acute or chronic, limited for the purpose of this chapter to mean increased intraocular pressure unrelieved by standard treatments and medications; or (4) Crohn's disease with debilitating symptoms unrelieved by standard treatments or medications; or (5) Hepatitis C with debilitating nausea or intractable pain unrelieved by standard treatments or medications; or (6) Diseases, including anorexia, which result in nausea, vomiting, cachexia, appetite loss, cramping, seizures, muscle spasms, or spasticity, when these symptoms are unrelieved by standard treatments or medications; or (7) Any other medical condition duly approved by the Washington state medical quality assurance commission in consultation with the board of osteopathic medicine and surgery as directed in this chapter. (O) "THC concentration" means percent of tetrahydrocannabinol content per weight or volume of useable cannabis or cannabis product. (P) "Useable cannabis" means dried flowers of the Cannabis plant having a THC concentration greater than three-tenths of one percent. Useable cannabis excludes stems, stalks, leaves, seeds, and roots. For purposes of this subsection, "dried" means containing less than fifteen percent moisture content by weight. The term "useable cannabis" does not include cannabis products. (Q) "Valid documentation" means: (1) A statement signed and dated by a qualifying patient's health care professional written on tamper-resistant paper, which states that, in the health care professional's professional opinion, the patient may benefit from the medical use of cannabis; (2) Proof of identity such as a Washington state driver's license or identicard, as defined in RCW ; and (3) In the case of a designated provider, the signed and dated document valid for one year from the date of signature executed by the qualifying patient who has designated the provider. (S) "Youth-oriented facility" means elementary school, middle school, high school, public park, and any establishment that advertises in a manner that identifies the establishment as catering to or providing services primarily intended for minors, or individuals who regularly patronize, congregate or assemble at the establishment are predominantly minors. This shall not include a day care or preschool facility. 6 P age

7 Section 2. Interim Zoning Regulations: A. Collective Garden. In order to site and operate a Collective Garden, the owner or lessee of the property must obtain a business license from the city and approval from the City for a Collective Garden Permit. A complete application (as described in subsection D herein), and compliance with the following requirements: A. No permit or business license required for a collective garden: A collective garden does not require a permit or a business license. However a collective garden must meet all of the standards of this ordinance. C. Location and Distance Restrictions for collective gardens. (1) No Collective Garden, as defined in Section 1 of this Ordinance, shall be permitted outdoors; (2) No Collective Garden shall be located within One Thousand (1000) feet of schools and youth-oriented facilities, as measured from edge of property line to edge of property line; (3) No Collective Garden shall be located within Five Hundred (500) feet of another permitted collective garden; (4) No Collective Garden shall be located in a manner that will allow the cannabis plants to be visible by the public. B. Ownership and Limitation on Numbers. No more than one Collective Garden may be located on a legal parcel of land. Such parcel with the collective garden must be owned or leased to one of the members of the Collective Garden. A qualifying patient cannot be a member of more than one Collective Garden, and must be a member of one Collective Garden for at least thirty (30) days before transferring their membership to another Collective Garden. Each Collective Garden must maintain records of its membership demonstrating compliance with the provisions of this subsection. Such records shall be maintained and be subject to inspection by the City for no less than three years. D. Collective Garden, Land Use Permit Application. A business license application for a complete application for a Collective Garden Land Use Permit shall include: 1. A statement acknowledging that the collective applied for will be issued in conformance with the laws of the State of Washington and this Ordinance and that such issuance does not confer upon the members of the Collective Garden immunity from prosecution under federal law; 7 P age

8 2. The location of the parcel where the Collective Garden will be located, by street address and tax parcel number; 8 P age

9 3. Either the owner of the property shall sign the application, or the person signing it must demonstrate that they have permission to sign the application on behalf of the owner; 4. A statement describing the proposed security measures for the facility that shall be sufficient to ensure the safety of the members and protect the premises from theft; 5. Payment of a fee which shall be established by Resolution of the City Council, provided, however, but prior to such action, the shall have fee of $ B. Collective Garden Determination of compliance Land Use Permit Procedure; Appeals. 1. Upon receipt of a complete application, the City Code Enforcement Officer or designee shall schedule with the applicant an inspection or inspections of the premises a meeting to insure compliance with this ordinance. If the applicant is in compliance with this ordinance, the Code Enforcement Officer may issue a Collective Garden Land Use Permit Allowing a collective garden to operate in the City of Lacey according to the laws of the state of Washington and this ordinance The issuance of a Collective Garden Land Use Permit shall not be deemed as approval or permission from the City of Lacey to engage in any activity deemed illegal under any applicable law, nor shall it constitute a determination by the City that the manufacture, production, processing, possession, transportation, delivery, dispensing, application, or administration of and use of cannabis engaged in by the licensee or permittee is either legal or illegal under state or federal law. 2. When a collective garden is not meeting the requirements of this ordinance, the Enforcement Officer shall issue a written letter to the responsible party in violation of this ordinance. Said letter shall identify what is not in compliance with the ordinance and what steps may be taken to bring the garden s operation into compliance. 3. Appeal of the Code Enforcement Officer s decision regarding meeting the requirements of this ordinance must be submitted to the City Clerk in writing no later than ten (10) business days following such Officer s written decision and notification of the responsible party. 4. Administrative appeals shall be heard by the Community Development Director of the City whose decision upon such appeal shall be final. C. Prohibition Against Other Methods of Medical Cannabis Dispensing. It shall be unlawful to dispense medical cannabis by any means other than one qualifying patient and one qualified provider in accordance with state law or through a Collective Medical Cannabis Garden as specified by state law and the regulation set forth in 9 P age

10 this chapter. Such prohibition includes the dispensing of medical cannabis by gift, sale or any other means whatsoever. Section 3. Findings of Fact: The recitals set forth above are hereby adopted as Findings of the City Council. 10 P age

11 Section 4. Moratorium and Interim Regulations Adopted. A moratorium is adopted upon the filing of any application or the issuance of any permit or business license for the establishment of a medical cannabis collective garden except those collective gardens meeting the provisions of these interim regulations and within the zoning districts allowed herein. Section 5 4. Zone Districts. Medical Cannabis Collective Gardens, as defined herein, shall be allowed on an interim basis only in the Agricultural, Light Industrial, Industrial, General Commercial, Light Industrial/Commercial Districts and Central Business Districts 4 and 5 of the City and in no other locations. subject to general standards identified in section 5, and at a reduced scale pursuant to section 6 in the Low density Residential 0-4 zone and Low Density residential 3-6 zones subject to standards of section 6. Section 6. Duration of Interim Regulations. The interim zoning and other regulations adopted herein shall commence on the date of the adoption of this ordinance. As long as the City Council holds a public hearing on these interim regulations and zoning provisions within 60 days, such interim zoning and regulations shall be effective for 6 months after the date of adoption or until earlier action of the City Council, whichever should first occur. Section 7. Public Hearing on Regulations. Pursuant to RCW 35A , the City Council shall hold a public hearing on the interim regulations set forth herein within 60 days of the adoption of this ordinance. The Council hereby schedules this hearing for March 8, After the holding of such public hearing, the Council shall either confirm, modify or repeal the interim regulations and zoning restrictions contained herein. Section 5. Standards applicable to all collective gardens: Collective gardens shall meet the following standards: (1) No indication of garden apparent: No Collective Garden shall be located or operated in a manner that will give any indication to the public that a collective garden exists on the site either visual or by smell. (2) Required indoors: No Collective Garden, as defined in Section 1 of this Ordinance, shall be permitted outdoors; (3) Security required: Security shall be required for all collective gardens including the following: Electronic Surveillance: Recording surveillance equipment shall be installed for the garden monitoring at a minimum, all entrance and exit points into the area being used to grow marijuana 24 hours a day 7 days a week. Recording shall be available to the Lacey Police Department and shall be maintained for at least 90 days by the collective garden management. Alarm system: A monitored alarm system shall monitor the collective garden for infiltration by unauthorized parties. 11 P age

12 Dead bolt requirement: Dead bolts shall be installed to each entrance and exit to a collective garden room and to each entrance and each exit that provides access to the structure where the garden is located. (4) One collective garden per ownership: Only one collective garden can be located on any one parcel or one condominium ownership. (5) Membership: A qualifying patient cannot be a member of more than one Collective Garden, and must be a member of one Collective Garden for at least thirty (30) days before transferring their membership to another Collective Garden. Each Collective Garden must maintain records of its membership demonstrating compliance with the provisions of this subsection. Such records shall be maintained and be subject to inspection by the City for no less than three years. Section 6. Residential standards for a reduced scale collective garden: A reduced scale collective garden may locate in a Low Density Residential 0-4 or 3-6 zone, provided it satisfies all of the following standards. (1) Limited scale: Collective gardens in a residential zone shall be limited to 4 or less patients and 18 or less plants and meet all requirements of chapter 69.51A.040 RCW, as may be amended by this chapter under Lacey s zoning authority. (2) Located indoors : The growing operation is confined within a single family detached residential structure, or an accessory structure associated with a single family detached structure, so no portion of operations are visible to the public. (3) No indication of collective garden: No outward indication is present outside the home, including anything visual or any smell from the grow, to indicate a collective garden exists on site. (4) Considered a subordinate use: The collective garden within a residence shall be considered a subordinate use to the primary use of the home for a residence, and no activity shall compromise the functionality or character of the home as a residence. A bedroom, bathroom and kitchen are considered integral components of housing and shall not be compromised as a result of a medical marijuana growing operation. As a subordinate use, the collective garden area shall be limited to 25% of the size of the home or 400 square feet, whichever is less. (5) Traffic mitigation: A traffic plan shall be used to organize patient trips to the home to minimize traffic and parking impact. Trip generation shall be limited to what is normal for a residential area. (6) Electrical permit: The operator shall obtain an electrical permit from the City for the installation or alteration of the electrical system for the residential or accessory structure. (7) Smells: A filter shall be used to filter smells coming off of the grow to preclude any smells that might indicate a garden of medical marijuana is being grown on site. 12 P age

13 Section 7. Personal grows permitted: A qualified patient or his/her designated care provider may have a personal garden of medical marijuana meeting the requirements of RCW 69.51A.040 as follows: (1) Fifteen Plants limitation: The qualifying patient or designated provider possesses no more than fifteen cannabis plants and: (a) No more than twenty-four ounces of useable cannabis; (b) No more cannabis product than what could reasonably be produced with no more than twenty-four ounces of useable cannabis; or (c) A combination of useable cannabis and cannabis product that does not exceed a combined total representing possession and processing of no more than twenty-four ounces of useable cannabis. (2) Provider and Patient: If a person is both a qualifying patient and a designated provider for another qualifying patient, the person may possess no more than twice the amounts described in (1) of this subsection, whether the plants, useable cannabis, and cannabis product are possessed individually or in combination between the qualifying patient and his or her designated provider; (3) Patient authorization: The qualifying patient or designated provider keeps a copy of his or her proof of patient authorization and the qualifying patient or designated provider's contact information posted at the residence where the cannabis garden is located; (4) Garden location: A personal garden may be located inside the residence or accessory structure or outdoors, provided plants are not visible from a public right of way and are screened from direct view of neighbors. For gardens containing the maximum number of plants indoors with security is recommended, but not required. Section 8. Severability: If any section, sentence, clause or phrase of this Ordinance should be held to be unconstitutional or unlawful by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Ordinance. Section 9. Declaration of Emergency. The City Council hereby declares that an emergency exists necessitating that this Ordinance take effect immediately upon passage by a majority vote plus one of the whole membership of the Council. Without the adoption of interim zoning regulations, medical cannabis gardens could locate and operate in the City without restriction, eventually leading to the establishment or operation of such use in locations or conditions that might later be restricted or prohibited in the zoning regulations eventually adopted by the City of Lacey. Therefore, the interim zoning must be imposed as an emergency measure to protect the public health, safety and welfare. 13 P age

14 Section 10. Permanent Regulations. The City Council directs the City staff to refer this ordinance to the Lacey Planning Commission for its review and recommendation of permanent regulations to replace the interim regulations adopted herein. Section 19. The Summary attached hereto is hereby approved for publication: PASSED BY THE CITY COUNCIL OF THE CITY OF LACEY, WASHINGTON, at a regularly-called meeting thereof, held this day of, CITY COUNCIL By: Approved as to form: Mayor City Attorney Attest: City Clerk 14 P age

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