Land Use Issues With Retail Cannabis In Washington Showing Success

We continue this series of posts related to land use issues in decriminalized and legalized cannabis markets with one of the states that has gone the furthest to revolutionize the commercial industry of cannabis, Washington. At some point, it will be sold somewhere, and this can create commercial opportunity, or be a breeding ground for social ills, depending on how a state regulates the land use issues incurred by legalization. Today, we will be taking a look at how Washington has gone about dealing with the land use issues related to retail cannabis, and whether these regulations have experienced success in achieving their goals.

In November of 2012, Washington voters passed Initiative 502, codified as chapter 69.50, which made personal possession of cannabis legal, and gave the Washington Liquor Control Board control over the regulations by which cannabis would be grown, processed, and sold in the state. With extensive provisions contained in the initiative, the Liquor Control Board seems to have recognized a need to create a tightly regulated market. Also contained in this provision are the liquor board issues. Seemingly aware of the role land use law would play in achieving these goals, Washington subsequently enacted WAC 314-55, which goes into extensive detail of the requirements for the application process, commercial licensing, and reporting. These provisions, however, are in turn subject to the provisions set out in the original initiative’s section 69.51A.140 and section 69.51A.200. What this means, is that licensing as set out in WAC 314-55 still cannot abrogate the rights set out in 69.51A.140 and 69.51A.200. For example, and relevant to what we will see when this discussion is applied to California, the right to meet extensive criteria and obtain a commercial license set out in WAC 314-55 does not take away a county’s right set out in 69.51. To the extent that it works, Washington’s flexibility in amending their initiative will also be relevant for helping shape the future of California’s policy.

While WAC 314-55 sets out a multitude of provisions for aspects such as transportation, signage, licensing, production, and many more, leaving little doubt that Washington is achieving their goal of tightly regulated market, it is interesting to note the land use provisions that speak to their specified goals. Washington enacts land use provisions that protect their youth, for example, mainly be setting out distance requirements for retail locations from venues where children frequent. One thousand is the magic number of feet from which a cannabis retail location, or even advertising, is required to be from “school grounds, playground, recreation center or facility, child care center, public park, library, or a game arcade admission to which it is not restricted to persons aged twenty-one years or older”. Mirrored by other states, including California, this provision is exemplary of a marijuana regulation that directly correlates to successfully achieving a municipality’s purported goal.

This chapter also successfully lays out land regulations that promote responsible business practices, and zone dispensaries in such a way that gives us our first look at how land use laws define cannabis’ place in a legal commercial framework. In general, municipalities will designate areas to be zoned in a specific manner. Depending on how a given area is zoned, it allows the land to be used in some ways, and restricts it in others. For example, if an area is zoned for commercial use, it will be given a title such as GC (General Commercial). This allows the owner of that parcel to use the land for businesses purposes, and restricts them from certain uses such as habitation. Washington licenses retail locations on parcels conforming with GC, C-3, and CR-2 zoning. GC and C-3 zoning are general commercial zones and are meant to serve “large area of the county the traveling public” and are applicable to a wide variety of businesses like antique stores, bowling alleys, legal card clubs, medical offices, and so on. CR-2 zoning applies to commercial residential entities, and allows for single purpose and specialty retailers like restaurants and bars. By zoning cannabis retail locations as such, Washington has treated these businesses in the same way in treats any other. The questions remains, however, whether this decision has allowed Washington to be successful in its purported goals.

Pursuant to the powers granted to them under 69.51A.140 and 69.51A.200, counties can amend the statewide initiative as they see fit for their local communities. While Initiative 502 sets out rules and regulations for legalization, 69.51A.140 makes it clear that towns, cities, and counties may pick and choose the extent to which these municipalities zone land use. Nevertheless, 69.51A.200 does require that there be safe access available for those who are selling and purchasing marijuana under the state’s medical statutes. Clark County is an example of a municipality invoking this right. As such, it can be used as an example of the extent to which Washington’s zoning of retail cannabis locations as GC, C-3, and CR-2 were successful in achieving their goals.

In May of 2014, Clark County enacted an amendment to Initiative 502 which, under 69.51A.140, reduced the extent to which they would follow I-502. What’s particularly interesting about this is that this amendment occurred two years after Washington passed I-502. This shows a period in which the provisions set out in the original initiative could be tested to see which aspects achieved their goals, and those which did not. Interestingly enough, the only zoning issues which were struck down by Clark County pertained to growing and manufacturing. All three categories that were designated for sales went untouched, suggesting that the commercial designation of cannabis is a viable option that can operate while still preventing out-of-state diversion of product, traceability of products, youth access, and maintaining responsible business practices, and other public and consumer safety issues.

Looking forward, the goals achieved in the results of this Washington experiment should be kept in mind when looking to other frameworks. Specifically, the extent to which Washington has been successful in its goal to prevent out of state diversion will become highly relevant when discussing the obstacle nuisance law poses to integrating cannabis into a decriminalized or legalized legal framework.

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