HomeMy WebLinkAboutord2021-066Whatcom County
Agenda Bill Master Report
File Number: AB2021-590
File ID: AB2021-590 Version: 1
COUNTY COURTHOUSE
311 Grand Avenue, Ste #105
Bellingham, WA 98225-4038
(360) 778-5010
Status: Substitute Adopted
File Created: 10/04/2021 Entered by: Kassite@comhatcomma.us
Department: Council Office File Type: Ordinance Requiring a Public Hearing
Assigned to: Council Planning and Development Committee Final Action: 10/26/2021
Agenda Date: 10/26/2021 Enactment #: ORD 2021-066
Primary Contact Email: TDonovan&o.whatcornma.us
TITLE FOR AGENDA ITEM:
Ordinance imposing a second interim moratorium on the acceptance and processing of permit
applications for new or expanded recreational cannabis growing and/or processing facilities which are
proposed to operate outdoors or in greenhouses
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE:
This ordinance prohibits, on an interim basis, the filing, acceptance, or processing of permit applications
for conversion of land or water, new building or structure permits, or other County permits or
authorizations for recreational marijuana production and/or processing facilities, which are proposed to
operate in any of the following: (1) open or cleared ground, (2) a non -rigid greenhouse, (3) a
greenhouse with rigid walls, a roof and doors, or (4) similar type greenhouse structures. The interim
moratorium shall not apply to applications that were filed and determined to be complete prior to the
effective date of this ordinance and vested pursuant to Washington statutes, or those for minor tenant
improvement permits associated with existing, permitted facilities. For the purposes of this ordinance, a
minor tenant improvement permit may include new or replaced equipment or other structural alterations
that do not expand the area of the facility or change the use from previous County approvals. This is
the second interim ordinance establishing this moratorium. This interim ordinance shall be effective for
not longer than six months following its effective date, but may be renewed for one or more six-month
periods if subsequent public hearings are held and findings of fact are made prior to each renewal.
HISTORY OF LEGISLATIVE FILE
Whatcom County Page 1 Printed on 1012812021
Agenda Bill Master Report Continued (AB2021-590)
Date: Acting Body:
10/12/2021 Council
Aye: 5
Nay: 2
Absent: 0
10/26/2021 Council Planning and Development
Committee
10/26/2021 Council
Aye: 5
Nay: 2
Absent: 0
Action:
Sent To:
INTRODUCED FOR PUBLIC Council Planning and
HEARING Development Committee
Browne, Buchanan, Byrd, Donovan, and Frazey
Elenbaas, and Kershner
NOT ACTED UPON
SUBSTITUTE ADOPTED
Browne, Buchanan, Byrd, Donovan, and Frazey
Elenbaas, and Kershner
Attachments: Original Proposed Ordinance, Substitute Ordinance for 10.26.2021
Whatcom County Page 2 Printed on 1012812021
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PROPOSED BY: Planning Commission / PDS
INTRODUCTION DATE: October 12, 2021
5 ORDINANCE NO. 2021-066
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7 IMPOSING A SECOND INTERIM MORATORIUM ON THE ACCEPTANCE AND
8 PROCESSING OF PERMIT APPLICATIONS FOR NEW OR EXPANDED RECREATIONAL
9 CANNABIS GROWING AND/OR PROCESSING FACILITIES WHICH ARE PROPOSED
10 TO OPERATE OUTDOORS OR IN GREENHOUSES
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WHEREAS, on November 6, 2012, Initiative 502 was passed by the voters of the
State of Washington, amending Chapter 69.50 RCW and providing the regulatory framework
for cannabis producers, processors, and retailers to become licensed by the Washington
State Liquor and Cannabis Board ("WSLCB"); and,
WHEREAS, on November 16, 2013, the WSLCB adopted final cannabis licensing
rules as codified in Chapter 314-55 WAC. During the period between November 18, 2013
and December 18, 2013, the WSLCB accepted cannabis license applications for cannabis
production, processing and retail facilities. Whatcom County began receiving notifications of
proposed cannabis facilities from the WSLCB in mid -December 2013, and the WSLCB began
issuing cannabis producer, processor, and retail licenses to qualified applicants in March of
2014; and,
WHEREAS, on January 16, 2014, the Washington State Attorney General issued an
opinion stating that Initiative 502 does not preempt counties from banning or placing
additional regulatory requirements on cannabis related businesses within their jurisdictions;
and,
WHEREAS, the Prosecuting Attorney and Planning and Development Services (PDS)
had at the time implemented a zoning interpretation policy, which stated that PDS would
regulate cannabis proposed uses as allowed by Initiative 502 in the same way as any other
commodity that is grown, processed, or sold in Whatcom County, it became evident that
many of those proposed locations could conflict with other surrounding uses; and,
WHEREAS, on February 11, 2014, the Whatcom County Council adopted Ordinance
2014-011, an emergency ordinance imposing a moratorium on the acceptance of all building
and/or land use applications that pertain to cannabis producers, processors, retailers and
medical cannabis collective gardens; and,
WHEREAS, the County developed and implemented several sets of interim
regulations during that time, though none were deemed appropriate by the Council as
permanent regulations; and,
WHEREAS, on March 31, 2015, the Whatcom County Council adopted Ordinance
2015-006, which contains the current County zoning regulations for recreational cannabis
type uses, treating cannabis similar to other agricultural products; and,
WHEREAS, Whatcom County Code (WCC) 20.97.227 defines marijuana production
as a facility licensed by the state Liquor and Cannabis Board to produce, harvest, trim, dry,
cure, and package marijuana, and sell marijuana at wholesale to state -licensed marijuana
processors and other state licensed marijuana producers; and,
WHEREAS, WCC 20.97.227 states marijuana production may take place either
indoors within a fully enclosed secured facility or a greenhouse with rigid walls, a roof and
doors, or outdoors in non -rigid greenhouses, other structures or an expanse of open or cleared
ground fully enclosed by a physical barrier; and,
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2 WHEREAS, Ordinance 2015-006 allows for the production and processing of
3 cannabis in the Rural (administrative uses), Rural Forestry (permitted uses) and Agriculture
4 zone districts (permitted uses), subject to a proposed facility meeting several stated use
5 standards. Such standards include odor controls (for indoor grows only), lighting, traffic and
6 parking control measures, as well as setbacks of 1,000 feet from community centers and
7 300 feet from residences not located on the same property. The ordinance also allowed for
8 the production and processing of marijuana in the Rural Industrial and Manufacturing, Light
9 Impact Industrial, and Heavy Impact Industrial districts as permitted uses, subject to odor
10 control measures (for indoor grows); and,
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12 WHEREAS, the WSLCB is no longer issuing new licenses, existing licenses
13 throughout Washington State can be transferred and Whatcom County was notified by the
14 WSLCB of approximately 30 recreational marijuana production and/or processing renewal
15 licenses last year (2020) within unincorporated Whatcom County; and,
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WHEREAS, while earlier licensees were small, local producers, their licenses now
appear to be being transferred to larger operators with more capital who are buying up the
earlier licenses and expanding and/or changing operations and/or locations; and,
WHEREAS, over the last few weeks prior to the adoption of the first interim
moratorium, the Council, Executive, Planning Commission, and PDS received complaints
from residents adjacent to existing and proposed cannabis facilities regarding excessive
odor, lighting, and potential water usage, suggesting that the County's cannabis regulations
may not be sufficient; and,
WHEREAS, on March 23, 2021, the County Council adopted the 2021 Docket, a
component of the PDS work plan, including item PLN2021-00009, to 'Review and revise
Whatcom County Code relating to marijuana growing and processing in rural areas.
Consider impacts of marijuana growing and processing facilities in rural areas, and evaluate
growing and processing facilities as an agricultural or non-agricultural use. Consider
compatibility with GMA and County Comprehensive Plan." However, due to the pandemic,
the Planning Commission and County Council have backlogs of other issues to address, and
PDS will need time to work with the community to properly develop and process any
potential regulatory amendments; and,
WHEREAS, pursuant to the Washington State Constitution, the general police
powers granted to counties empower and authorize Whatcom County to adopt land use
controls to provide for the regulation of land uses within the County and to provide that
such uses shall be consistent with applicable law; and,
WHEREAS, RCW 36.70A.390 authorizes a county governing body to adopt moratoria
and provides that such a moratorium may be effective for up to one year if a work plan is
developed and further that such a moratorium may be renewed for one or more six-month
periods if a subsequent public hearing is held and findings of fact are made prior to renewal;
and
WHEREAS, on April 20, 2021, the County Council adopted Ordinance No. 2021-023,
imposing a six-month interim moratorium prohibiting the filing, acceptance, or processing of
new applications for permits or authorizations for recreational marijuana production and/or
processing facilities which are proposed to operate outdoors or in greenhouses; and
WHEREAS, due to the COVID-19 backlogs referenced above, PDS still needs more
time to properly develop and process any potential regulatory amendments; and
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2 WHEREAS, the County Council finds that a second interim moratorium is necessary
3 for the protection of public health and safety and to prevent development applications from
4 vesting under current law and thus subverting the purpose of the proposed update to the
5 policies and regulations for cannabis growing and processing operations; and,
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7 WHEREAS, the Whatcom County Council is required by RCW 36.70A.390 to hold a
8 subsequent public hearing and make findings of fact prior to renewing this moratorium;
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10 NOW, THEREFORE, BE IT ORDAINED that the Whatcom County Council adopts
11 the above "WHEREAS" recitals as findings of fact in support of its action as required by RCW
12 36.70A.390.
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14 BE IT FURTHER ORDAINED by the Whatcom County Council that a second interim
15 moratorium is hereby imposed prohibiting the filing, acceptance, or processing of new
16 applications for conversion of land or water, new building or structure permits, or other
17 County permits or authorizations for recreational marijuana production and/or processing
18 facilities which are proposed to operate in any of the following: (1) open or cleared ground,
19 (2) a non -rigid greenhouse, (3) a greenhouse with rigid walls, a roof and doors, or (4)
20 similar type greenhouse structures. The interim moratorium shall not apply to applications
21 that were filed and determined to be complete prior to the effective date of this ordinance
22 and vested pursuant to Washington statutes, or those for minor tenant improvement
23 permits associated with existing, permitted facilities. For the purposes of this ordinance, a
24 minor tenant improvement permit may include new or replaced equipment or other
25 structural alterations that do not expand the area of the facility or change the use from
26 previous County approvals.
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28 BE IT FURTHER ORDAINED that if a section, subsection, paragraph, sentence,
29 clause, or phrase of this ordinance is declared unconstitutional or invalid for any reason by
30 any court of competent jurisdiction; such decision shall not affect the validity of the
31 remaining portions of this ordinance, and if the provisions of this ordinance are found to be
32 inconsistent with other provisions of the Whatcom County Code, this ordinance shall control.
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34 BE IT FINALLY ORDAINED that this interim ordinance shall be effective for not
35 longer than six months following its effective date, but may be renewed for one or more six-
36 month periods if, §,u,b90quPdnt public hearings are held and findings of fact are made prior to
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each renewal,,\ (J y
Af��FtJUF�3tQ�iC �.�6i�a day of October 2021.
AT WHATCOM COUNTY COUNCIL
cd °�
,� ATCO UNT , WASHINGTON
Dana Br6w6„6avis,Clerk of the Council Ba y uchanan, Council Chair
APPROVED AS TO FORM:
/s/ Karen Frakes (via e-mail) / JL
Civil Deputy Prosecutor
WHATCOM COUNTY EXECUTIVE