An important decision was published this week in the Court of Appeals case Kittitas County v. Washington State Liquor and Cannabis Board.
The key legal question being considered was whether the Growth Management Act (GMA) requires the Washington State Liquor and Cannabis Board (WSLCB) to only approve licensing applications that conform with local zoning laws. The Appellate Court (Court) said no.
The case stemmed from a December 2015 notification by Kittitas County to the WSLCB that it objected to the issuance of a license for a marijuana producer/processor based on the location of the proposed operation. The WSLCB granted the license to the applicant and notified the county that it could not base the denial of an application on local zoning laws (emphasis added).
The County petitioned the WSLCB for a declaratory order as allowed by RCW 34.05.240, arguing that the site-specific nature of marijuana licenses meant that licensing decision are subject to local zoning. In its response to the County’s petition, the WSLCB determined neither the GMA nor the marijuana licensing statute required that its decision to issue a license was bound by local zoning laws.
The County filed suit against the WSLCB in Kittitas County Superior Court. Superior Court reversed the WSLCB decision ordered it to “only approve licenses which are in compliance with local zoning”.
The WSLCB appealed the case. In its analysis, the Court overturned the previous ruling stating that “while RCW 36.70A.103 requires governmental actors to abide by the same zoning rules as regular citizens, nothing in the statute suggests state agencies must be concerned with local zoning restrictions when engaged in purely governmental functions, such as determining the appropriateness of a state license”. The Court further stated, “…the GMA merely ‘implies’ that governmental agencies ‘should take into account’ growth management programs when engaged in ‘discretionary decision making.’”
The Court did acknowledge that the licenses issued by WSLCB are site-specific, and the WSLCB must consider certain site-specific limitations as outlined in law for the siting of such facilities. However, the Court also stated the issuance of a license does not “confer final authority to actually open a marijuana site.” That final authority rests with the local permitting agency and a license holder must comply with local laws, including zoning regulations, before lawfully operating a marijuana business.
While the Court’s decision, in this case, may be legally sound, the outcome is not a good one for local governments or for the spirit and intent of the GMA. By issuing licenses for marijuana business which the WSLCB know conflict with local zoning laws, the WSLCB is simply setting the applicant and the local government up for conflict and expense.
License holders, whether right or wrong, believe that a state decision to issue a license entitles them to begin operations. There have been numerous examples of a marijuana business, with a valid state license, opening for business in areas where zoning regulations do not allow them. After being notified they are violating local codes, many operators have chosen to ignore such notices.
Too often the local government is then forced to begin code enforcement proceedings, a costly and lengthy process, to remove the offending business. The costs for code enforcement are rarely, if ever, fully recovered by the county.
The local impacts related to issuing licenses for the operation of marijuana businesses in violation of local restrictions are real and they are costly. The WSLCB bears no fiscal responsibility for paying the costs when a local government is placed unwittingly in a position to incur significant time, effort and financial costs for enforcement of a violation that was arguably precipitated, at least in part, by the license issuance itself. Of course, all such expenses and deployment of government resources could be avoided by heeding the concerns of the local government and refusing to issue such a license in the first place.
Unfortunately, the WSLCB continues to approve licenses in total disregard for local zoning regulations, while undermining the core principles of the GMA for coordinated planning.
Finally, the Court also included in its decision that “while nothing in the marijuana licensing statute requires the Board to issue licenses in conformance with local zoning restrictions, there is also no prohibition on doing so.” This statement by the Appeals Court stands in stark contrast to the WSLCB position that it could not base its denial of an application on local zoning laws.
According to the Court, it certainly can. We believe it should.