Othello looking at marijuana garden regulations

OTHELLO - Othello is examining what it will do with a state law allowing community marijuana gardens for medical marijuana patients.

The city council decided to have the planning commission look at options for where and how and whether the city should allow the gardens. The council, like Moses Lake, Ephrata, Quincy and Warden, has approved two six-month moratoriums on establishing codes to allow the gardens.

The moratoriums followed the passage of a state bill allowing up to 10 qualifying patients to grow as many as 45 marijuana plants in a shared garden. Each patient is allowed to grow as many as 15 plants each.

Gov. Chris Gregoire vetoed large portions of the bill, and it was expected to be changed during the previous Legislative session, but it didn't change.

City Attorney Katherine Kenison said not much has changed in the situation because people are waiting to see what happens with Initiative 502. The initiative would make marijuana legal in the state.

"However at this point, it's probably appropriate (since) we only have a couple more months left on our six-month moratorium, that the council consider giving some direction to staff as to what it wants to do," she said.

The city has three options, she said. The first is to continue extending the moratorium for another six months.

The second is to adopt an ordinance establishing the rules for where the gardens can be, she said.

"Some jurisdictions have done that," Kenison said. "If you wish to do that then I suggest you route that through the planning commission ... because you want to be looking at where within the city zones you want to allow that, and depending on what direction the council wants to go that will dictate the terms of the ordinance."

The ordinance could be as broad as allowing it in any zone, or limit the community gardens to particular areas, such as industrial zones or inside of buildings, she said. The regulations may be tied to controlling crime, smell and the hours people are operating the gardens.

The third option is inserting a clause into the zoning code stating the city only allows land uses which are legal under state and federal law, Kenison said. Since the federal government doesn't allow marijuana to be grown for any reason, the city wouldn't adopt any regulations allowing the community gardens.

About half of the Washington cities are creating zoning codes to allow the gardens and about half are choosing to not allow the gardens, she said. A small minority are simply extending their moratoriums for another six months.

Kenison didn't have an easy answer to which option was less risky for the city, she said.

"No jurisdiction has, as of yet, been challenged for its medical marijuana restrictions or prohibitions, so I don't have a clear cut answer," she said. "I can tell you there are some groups out there that are paying attention and because the state law says we have to allow them. The one option I discussed about putting in that (you) can't do it if it's prohibited under state and federal law, they may take the approach that constitutes an outright prohibition."

The council has the ability and a solid position if the members wanted to create regulations restricting where the gardens are allowed, but do allow them, Kenison said.

"I think that's probably, from a risk management standpoint, the safest, but I'm not ruling out the zoning code referencing state and federal law. Obviously from the simplicity approach that appeals," she said.

When Councilmember Ken Johnson asked whether the city could pass another moratorium, Kenison answered the city isn't limited on the amount of moratoriums the council can pass.

"I'm assuming at some point if you continue adopting moratoriums somebody would challenge it based on it being a tool to evade complying with the law rather than using it as a tool to study what the options are and craft those regulations," Kenison said.

Having the planning commission make a recommendation for regulations would show the city is working on the issue, Kenison said.

Councilmember Ken Caylor asked if the city received any requests from people to put in a community marijuana garden.

City Administrator Ehman Sheldon said the city hadn't received any requests.

Caylor suggested extending the moratorium for another six months while having the commission examine the issue.

"That will still give us more time, and we can weigh this with other cities and see how it plays out," he said.

Councilmember Ken Johnson agreed with having the planning commission work on zoning regulations, saying the state seems to have released themselves from responsibility for the law.