April 18, 2019

Washington State Licensing Decisions Do Not Need to Defer to Local Zoning Restrictions on Marijuana Producing and Processing Facilities


Division III of the Washington State Court of Appeals concluded that the state's Growth Management Act (RCW 36.70A, "GMA") does not require the Washington State Liquor and Cannabis Board (the "Board") to defer to and incorporate local zoning laws when making licensing decisions. The Board may consider local zoning regulations in making licensing decisions, but the Board need not defer to those local restrictions.


The case arose after Kittitas County notified the Board of its objection to a proposed license application for a marijuana producer and processor operation in Kittitas County. The County's objection was concerned with the location of the operation. In Kittitas County, under local zoning law, marijuana production and processing is permitted only "in certain land use zoning designations" and "under strict conditions." Despite the County's objection, the Board approved the application and notified the County that it could not base its denial of an application on local zoning laws.


The County proceeded to petition the Board's decision under the state Administrative Procedures Act (RCW 34.05), arguing that the "site-specific" nature of the marijuana license means that such licensing decisions are subject to local zoning laws. The Board issued a decision affirming its correspondence to the County, specifically that the marijuana licensing statute and the GMA do not require adherence to "all local zoning laws and land use ordinances prior to granting a license." The County's petition was supported by other municipalities and local governments.


The County appealed the Board's decision to superior court, which reversed the Board's decision. The Board appealed to Division III.


The Court first clarified that the GMA only requires state agencies to adhere to local zoning laws when siting a public facility, as opposed to the distinct act of licensing an operation. Although the license is a site-specific activity, it does not provide the authority to actually open the site as a marijuana facility. The operator must still comply with local laws regarding zoning before operation. The Court acknowledged that the GMA "implies" that state agencies should consider local governments' growth management plans and regulations, but it is not required. 


In other words, the Board may issue a license to an operator—without required consideration of local zoning laws—but that operator does not necessarily have the approval or legal authority to open its facility in that specific location if it is indeed restricted under local zoning law. As the Court stated, the Board's licensing a business in a zoning-restricted area may indeed provide a license with "little utility."


With respect to statutory marijuana licensing laws, the Court further concluded that the Board was not required to defer to and incorporate local zoning law in its licensing decisions. Although the licensing statute provides that the Board must "give substantial weight to objections" from local governmental authorities, it does not require compliance with the local zoning laws. 


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[Case: http://www.courts.wa.gov/opinions/pdf/358747_pub.pdf]

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