- Posted by Lawrence S. Glosser
- On August 27, 2015
In a recent case, the Washington State Supreme Court examined the question of whether a city or town’s zoning regulations can take precedence over activities that are permitted under state law. The issue arose from the City of Kent’s efforts to prohibit collective gardens that were authorized by the pre-2015 version of RCW Chapter 69.51A, the Medical Use of Cannabis Act (MUCA).[i]
Previously, MUCA provided that “(1) Qualifying patients may create and participate in collective gardens for the purpose of producing, processing, transporting, and delivering cannabis for medical use subject to [certain] conditions.” In response to this statutory provision, the City of Kent enacted a zoning regulation prohibiting “collective gardens (largely defined in RCW 59.51A.085) in every zoning district within the city and deems any violation as a nuisance per se that shall be abated by the city attorney. Kent City Code 15.02.074, 15.08.290. The city may enforce this Ordinance with criminal and civil sanctions. Id. ch. 1.04.” Cannabis Action Coal. v. City of Kent, No. 90204-6, 2015 WL 2418553, at *3 (Wash. May 21, 2015).
The issue addressed was whether or when a statute preempts local ordinances. The principal is whether the statute preempts the subject field. A statute will “if there is express legislative intent to preempt the field or if such intent is necessarily implied … from the purpose of the statute and the facts and circumstances under which it was intended to operate.” Id. In this case, there was no express preemption stated in the legislation, and the Court examined the issue of implied preemption as a basis.
The Cannabis Coalition looked to the statutory provision that provides: “Cities and towns may adopt and enforce any of the following pertaining to the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction: Zoning requirements, business licensing requirements, health and safety requirements, and business taxes.” RCW 69.51A.140. The argument was that since the statute does not include collective gardens, it was outside the authority of the City, and therefore the rights granted under the statute permitting collective gardens should take precedence.
In affirming the Court of Appeals, the Supreme Court held: “the remaining question is whether the Ordinance is otherwise consistent with state law. Because the legislature ensured that cities have the power to adopt ‘zoning requirements’—but did not grant carte blanche to opt out of all medical marijuana activity—a city’s ordinance under RCW 69.51A.140 (1) must concern a land use. Here, the Ordinance does concern a land use. It adopts zoning requirements for ‘the growing, production, processing, transportation, and delivery of cannabis’ in a collective garden, if seven conditions defining a collective garden are satisfied. Kent City Code 15.02.074, 15.08.290.” Id.
In conclusion, the Court held: “Consistent with RCW 69.51A.140(1), a city may adopt zoning requirements pertaining to the land use activity of collective gardens. The Ordinance falls within this local authority and is not preempted by state law.” Id.
In a dissenting opinion, Justice Gonzalez generally agrees with the majority opinion allowing local governments to completely prohibit activities allowed by the state (e.g. gambling). He nevertheless found the ordinance unconstitutional:
[W]hen state law specifically entitles one to engage in an activity prohibited by the local ordinance. See Entm’t Indus. Coal. v. Tacoma-Pierce County Health Dep’t, 153 Wash.2d 657, 664, 105 P.3d 985 (2005) (finding that a local ordinance imposing a complete ban on smoking was invalid because it “prohibits what is permitted by state law: the ability of certain business owners and lessees to designate smoking and nonsmoking locations in their establishments”); Parkland Light & Water Co. v. Tacoma-Pierce County Bd. of Health, 151 Wash.2d 428, 433, 90 P.3d 37 (2004) (finding that a local ordinance requiring water fluoridation “is a local regulation that prohibits what state law permits: the ability of water districts to regulate the content and supply of their water systems expressly granted to them by statute”). If MUCA provides a right for people to participate in collective gardens, the Ordinance improperly denies that right and therefore is unconstitutional.
Id. (Dissenting opinion).
[i] During the 2015 legislative session, MUCA was amended in such a way as to eliminate the statutory provisions that were at issue in this case. However, the legal principles addressed are applicable to other zoning and land use questions.