Kent to closely watch Fife, Wenatchee marijuana lawsuits

Kent city officials plan to keep a close watch on marijuana lawsuits filed against the cities of Fife and Wenatchee by people who want to open recreational marijuana businesses.

Fife and Wenatchee each ban recreational marijuana businesses. Kent also bans such businesses but the City Council is expected to consider a zoning ordinance this fall that could allow retail, processor and manufacturing businesses to open in town. Kent’s Land Use and Planning Board recommended in June that the council keep its six-month ban that expires in November.

Kent is the largest city in the state that bans recreational marijuana businesses. The five largest cities each allow the businesses and the first retail outlets opened in July.

The cities of Wenatchee and Fife passed local ordinances that prohibit operating marijuana businesses within their cities. The plaintiffs in SMP Retail, LLC vs. Wenatchee, Graybeard Holdings, LLC vs. Fife and MMH, LLC vs. Fife seek to invalidate these local ordinances so they can sell recreational marijuana, according to the State Attorney General’s Office.

“The city of Kent Law Department will closely monitor these cases as they move forward, but there is nothing about them currently that would cause the department to caution the City Council not to proceed with consideration of zoning options for recreational marijuana as planned,” said David Galazin, assistant city attorney, in an email last week.

“I anticipate that the Planning Division will be bringing the matter back before the Council’s Economic and Community Development Committee in September, with a recommendation going to the full Council in either September or October for a vote on a permanent ordinance.”

Galazin came away pleased with State Attorney General Bob Ferguson’s decision last week to intervene in the Fife and Wenatchee cases.

“The AG’s actions are helpful, insofar as the AG’s opinion issued last January reaffirmed what our position has been all along, namely, that I-502 contains no express preemption of local authority; that there is a strong presumption in favor of local control by virtue of the state constitution, and that the question isn’t really about the rights or wrongs of using marijuana but rather it is about the ability of the legislative bodies of cities to determine the appropriate location and manner of operation of business activities within municipal borders.”

Ferguson said last week during a phone press conference with reporters that the state wants to intervene in the Fife and Wenatchee cases to uphold the state’s right to allow recreational marijuana businesses.

“I-502 accomplishes the legalization of marijuana, a regulatory system, and we believe local jurisdictions can opt out on the sale of marijuana but I do not believe federal law preempts the ability of Washington state to create the regulatory system,” Ferguson said. “If a court concludes federal law preempts I-502 that could have the effect of concluding the initiative itself is unconstitutional.”

Ferguson remains confident in his opinion about what I-502 passed by voters in 2012 does or does not accomplish.

“They voted on a specific initiative with specific language,” Ferguson said. “We were asked to interpret that language and I believe our interpretation was correct. Just like in the state of Colorado, local jurisdictions here in Washington state can make the decision for their local jurisdiction not to allow the sale of marijuana. Of course, individuals in those jurisdictions can still possess and use marijuana.

“In my view the law is clear that I-502 did not specifically require local jurisdictions to provide for the sale of marijuana. It’s entirely possible in one or both of these lawsuits that question will be addressed squarely and ultimately resolved by the courts and we will see if we were correct on that.”

State lawmakers could make changes to address whether cities and counties must allow recreational marijuana businesses.

“The state Legislature does have the ability as policymakers to change the initiative,” Ferguson said. “They can write a law and adopt a law that requires local jurisdictions to provide for the sale of marijuana.”

The Fife case has a court hearing on Aug. 29 in Pierce County Superior Court and could end up in the state Supreme Court by the end of the year, Ferguson said.