YAKIMA – Brian Lehman has been scrambling to find a new location for his state-licensed cannabis farm since receiving a cease-and-desist order from Yakima County officials.
Now, the county is seeking an abatement order in Yakima County Superior Court to enter his property, shut down his business and remove any unpermitted structures, equipment or products, including marijuana.
Lehman is among four marijuana businesses recently hit with such a lawsuit as the county enforces a ban on all recreational marijuana businesses in unincorporated areas of the county.
Lehman said he refinanced his home and took a construction job to make payments on the idled six acres on which he intended to grow marijuana.
State not responsible for zoning enforcement, court rules
The state Liquor and Cannabis Board is not responsible for enforcing local zoning rules when approving marijuana business licenses, the state Court of Appeals ruled Thursday.
Kittitas County officials sought to block the state board from approving such licenses in areas where operations are prohibited by local zoning rules.
Since approval of Initiative 502 – the initiative that legalized recreational marijuana and established a market for it – many local governments across the state have enacted zoning ordinances banning recreational marijuana growing, processing and retail businesses.
“That was the whole reason I sold my property in Mason County and moved over here and bought six acres – yeah, it impacts me,” he said.
Cease-and-desist letters were sent to the more than 25 state-licensed marijuana businesses in unincorporated areas of the county last November, warning them to comply with the ban by March 1 or be shut down.
“We’re doing what we said we would do in the cease-and-desist letters,” said Don Anderson, who heads the county’s civil division. “We’ll be suing marijuana businesses on a regular basis until all are removed.”
The controversial ban has been in place since 2014. County commissioners say the ban is the will of local voters; a majority of county voters rejected the legalization of recreational marijuana in 2012, despite statewide approval.
County voters upheld the ban by more than 60 percent in a 2017 advisory vote.
But marijuana business owners say the ballot language of the advisory vote was confusing, and the vote was held on an off year when participation was low.
They say the ban unfairly hinders a potentially booming industry and that marijuana legalization is here to stay.
“It just seems crazy to me that they’re even pursuing this,” said business owner Devin Rohl, who was recently sued. “I don’t think it’s going back into prohibition.”
The county filed the lawsuits against Crusher Weed and Hail Products in the Zillah area, Alki Farms outside Sunnyside and AWSM Gardens south of Yakima.
The move was the latest in a series of actions that began more than two years ago to enforce the ban. Over that time, the county beefed up its code enforcement by increasing that department’s annual budget by $200,000 and reducing the steps needed to file an abatement action in Superior Court.
In May 2016, the county successfully shut down a retail pot shop in the Gleed area and sought abatement action against Sticky Budz, a Lower Valley grower-processor outside of Zillah. Sticky Buds is appealing and will remain in operation during the appeal process.
The appeal was filed after a Kittitas County Superior Court judge ruled Yakima County was within its legal authority to establish and enforce the ban. A previous opinion by the state Attorney General’s office said Initiative 502 – the voter-approved initiative that legalized recreational marijuana – didn’t prevent local communities from enacting such bans.
As a result, the landscape across the state is a checkerboard of communities that allow and ban marijuana businesses.
There are more than 1,300 licensed growing operations and more than 1,420 licensed processors statewide.
Business owners at first questioned the county’s legal authority to ban businesses allowed under state law.
“I guess it was my fault – I took the gamble,” said Lehman, owner of Hail Products. “Of course they never enforced anything (at first). You don’t really know. The state issues a license and you think it’s OK.”
Many business owners said they were initially operating small, low-key shops solely providing medical marijuana without any interference from the county.
That changed in July 2016, when the state began regulating the medical marijuana market under the broader recreational market. That placed medical marijuana providers in conflict with the county’s ban.
The four business owners recently sued said they have closed up shop, but Anderson wants proof. Code enforcement officers will inspect the properties and revenue reports obtained from the state Liquor and Cannabis Board to assure no recent activity, he said.
“Any licensee who says they are now closed, we’re going to need to get some proof,” Anderson said. “We’re not going to just take people’s word for it.”
Crusher Weed owner Sydnee Hurst said she has stopped operating and that her attorney is now talking to the county in hopes of averting any further court proceedings.
“I’m going to comply with the county,” she said. “I’m hoping I don’t have to go to court – that’s what we’re trying to avoid.”
Anderson said county officials are now working on drafting proper settlement documents for businesses that can prove they’ve ceased operations.
“We’re just going to run through this list, and in the event that they are closed and we can prove that they are closed, then the case will be dismissed and we’ll move forward,” he said.
Greener pastures elsewhere?
Most of the businesses in unincorporated areas of the county are growers and processors. They say the ban will force them into cities where cannabis businesses are allowed, such as Moxee, Union Gap and Yakima.
But finding a place suitable for a growing operation within a city can be difficult at best, Crusher Weed owner Hurst said.
She’s been searching for the past year and a half without any luck.
Marijuana businesses have to follow rules similar to liquor stores. They must be at least 1,000 feet away from parks, churches, schools and other areas where youth may congregate. That’s in addition to a slew of other regulations such as security, inventory tracking and advertising restrictions.
“There’s city zoning, Liquor Cannabis Board laws – there’s a lot of red tape,” she said. “It takes a moment.”
Transferring an existing license to a new location isn’t simple, either.
Licenses are site specific, meaning the state has to inspect and approve the site before issuing a license. A new site would have to be established and meet all inspection requirements before the license could be transferred. Meanwhile, operation of the current site would have to be maintained to keep the license valid for transfer.
Business owners say the March 1 deadline didn’t provide enough time to relocate.
“It’s not like we can just pick up and move,” AWSM Gardens owner Rohl said. “It takes time – there’s a lot of hoops to jump through.”
The state can offer some leniency in the transfer of a license in the occurrence of an uncontrollable event such as a fire, said Nicole Reid, compliance and adjudication manager with the state Liquor and Cannabis Board.
Businesses forced to move because of the ban probably wouldn’t meet that criteria, she said.
“Yakima County has had a ban from day one,” she said. “This is something they have all been facing for some time. It really would come down to when that final notice was given to them and if it was something deemed out of their control.”
Attorney James Berg, who is representing Rohl, said he hopes to convince the county to work with business owners in some way. He wouldn’t elaborate on any legal strategy or arguments he may pursue on Rohl’s behalf. His law firm partner, James Perkins, is representing Alki Farms and Crusher Weed.
“I would hope that the county would at least understand the predicament these businesses are in – at least my client – but we’re not there yet,” he said.
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