2013-11-04 Board Meeting Minutes 1
BOARD OF COUNTY COMMISSIONERS
LEWIS COUNTY, WASHINGTON
BOARD MEETING MINUTES
November 4, 2013
The Board of County Commissioners for Lewis County, Washington, met in regular
session on Monday, November 4, 2013 at 10:00 a.m. Commissioners Bill Schulte,
Edna J. Fund, and F. Lee Grose were in attendance. Chairman Schulte determined a
quorum, called the meeting to order and proceeded with the flag salute. Commissioner
Fund moved to approve the minutes from the 10:00 a.m. meeting held on Monday,
October 28, 2013. Commissioner Grose seconded the motion.
Motion Carried 3-0
PUBLIC COMMENT
Jan Buckowski, Adna, spoke regarding a devaluation of his home and his struggles to
get the issue resolved. He submitted written information to the Board and asked that it
be included in the record.
PROCLAMATION
Commissioner Grose made a motion to approve the Proclamation Agenda item one.
Commissioner Fund seconded the motion. Commissioner Fund read the
Proclamation into the record.
1. Proclamation: Recognizing November 15, 2013 as “National Adoption Day”.
Susie Parker, Superior Court, invited the Commissioners to attend the Adoption Day
Ceremony on November 15, 2013 at 2:30 pm in the Sheriff’s Training Room.
Motion Carried 3-0
NOTICE
Commissioner Fund made a motion to approve the Notice Agenda items two through
five. Commissioner Grose seconded the motion.
2. Notice of Hearing: Regarding the proposed 2014 Annual Construction
Program (ACP) and the Six Year Transportation Improvement Program (TIP)
for the years 2014-2019. Hearing will be held on or after 10:00 am, on Monday,
November 18, 2013. Resolution No. 13-514
Tim Elsea, Director of Public Works, stated pursuant to RCW 36.81.121, all counties
are required to prepare, adopt, and submit a Six Year TIP for proposed road and bridge
construction prior to the County's budget adoption each year. Copies of this program will
be furnished to the Washington State Department of Transportation (WSDOT), County
Road Administration Board (CRAB), and the Transportation Improvement Board (TIB)
not more than thirty (30) days after its adoption by the legislative authority. Pursuant to
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WAC 136-16, all counties are required to prepare, adopt, and submit an ACP for
proposed road and bridge construction prior to the County's budget adoption each year.
A copy of the adopted annual program and appropriate resolution shall be forwarded to
CRAB within thirty (30) days of its adoption but not later than December 31 of each
year. A public hearing must be held prior to adoption of the 2014-2019 Six Year TIP and
2014 ACP providing an opportunity for any person to appear and be heard, either for or
against the adoption of the proposed program. The public hearing will be held
November 18, 2013, at the Commissioners Hearing Room on the 2nd floor of the
Historic Courthouse in Chehalis, Washington. The notice of public hearing will be
published in the East County Journal on November 6 and 13, 2013 and in The
Chronicle on November 7 and 14, 2013. The notice of public hearing will also be posted
on the Lewis County website.
3. Notice of Hearing: Regarding the amendments to the Lewis County
Comprehensive Plan. Hearing will be held on or after 10:00 am, on Monday,
November 25, 2013. Resolution No. 13-515
Lee Napier, Director of Community Development, stated the current County Capital
Facilities Plan (CFP), the Six-year Transportation Improvement Program (STIP) and
school district Capital Facilities Plans are not specifically part of the Capital Facilities &
Utilities Element of the county’s comprehensive plan. The CFPs and the STIP are
usually updated and adopted by the Board of County Commissioners once a year. That
means the Capital Facilities & Utilities Element must be amended each year to stay
consistent with the updates of Public Works and Central Services. To streamline the
process, the Capital Facilities & Utilities Element and Profile will be amended to
automatically incorporate once adopted by the Board of County Commissioners.
Additional edits to the Comprehensive Plan are also suggested to correct scrivener’s
errors in the school district descriptions. Future Land Use Map: The Future Land Use
Map is based on the Official Zoning Map. As a result, a rezone request may require a
comprehensive plan amendment. This can be an expensive and time consuming
process for the applicant. To streamline that process, the two maps should be
separated so a comprehensive plan amendment is not required for a simple rezone
request. This will be accomplished by consolidating and renaming the land use
categories so they reflect adopted future land use rather than zoning designations. The
Planning Commission held two workshops and a public hearing on the amendment.
After careful consideration of input by the public along with staff recommendations, the
Planning Commission adopted a set of findings and conclusions and transmitted their
recommendation to approve the Resolution to the BOCC.
4. Notice of Hearing: Regarding the adoption of the 2014 Final Budget. Hearing
will be held on or after 10:00 am, on Monday, December 2, 2013. Resolution
No. 13-516
Lara Seiler, Budget Office, stated this Resolution is a notice of the public hearing on
the 2014 Final Budget. The notice for the hearing will be in the East County Journal on
Nov. 13 and 20, 2013 and in The Chronicle on Nov. 14 and 21, 2013. The Board of
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County Commissioners will meet on Monday, December 2nd, 2013 at 10:00 a.m. in the
Lewis County Courthouse for the purpose of taking public comment on and fixing the
Lewis County Final Budget for 2014.
5. Notice of Hearing: Regarding the adoption of the 2014 Vader Water System
Final Budget. Hearing will be held on or after 10:00 am, on Monday, December
2, 2013. Resolution No. 13-517
Lara Seiler, Budget Office, stated this Resolution is a notice of public hearing
concerning the adoption of the 2014 Vader Water System budget. This notice will be
published in the East County Journal on Nov. 13 and 20, 2013 and in The Chronicle on
Nov. 14 and 21, 2013. The Commissioners will meet on Monday, December 2, 2013, on
or after 10:00 a.m., for a public hearing to adopt the 2014 Vader Water System budget.
Motion Carried 3-0
CONSENT
Commissioner Grose made a motion to approve the Consent Agenda items six
through ten. Commissioner Fund seconded the motion.
6. Resolution No. 13-518 Approving warrants for payment.
Commissioner Grose stated this Resolution approves 13 special purpose warrants in
the amount of $4,736.11 and 165 regular warrants in the amount of $527,333.17 for a
total payment against the County in the amount of $532,069.28.
7. Resolution No. 13-519 In the matter of the election to receive Secure Rural
Schools and Community Self Determination Funds and allocations of Title II
and Title III funds.
Commissioner Grose stated this Resolution is in regard to Secure Rural Schools
Funding. Congress reauthorized the Secure Rural Schools (SRS) and Community Self
Determination Program for 2013. The county must elect to either receive the SRS
funding or return to 25% of actual receipts from the forest, with notification to the
Governor’s Office. The county must also elect to allocate from 15 to 20% of the full
county payment to Title II (RAC approved projects) and Title III (specific county approve
projects) with no more than 7% allocated to Title III and with notification to the
Governor’s Office. In 2012 the County elected to allocate 13% of project funds for Title II
and 2% for Title III projects. The County is electing to allocate 15% of project funds for
Title II and there will be no allocation for Title III projects for Federal fiscal year 2013.
8. Resolution No. 13-520 Approving a quit claim deed from Fredrick Selden to
Lewis County for donation of property off Coal Creek Drive near Packwood,
WA.
Tim Elsea, Director of Public Works, stated this Resolution approving and accepting
a Quit Claim Deed from Frederick Selden to Lewis County for donation of property off
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Coal Creek Drive near Packwood, WA. Frederick Selden, owner of the properties
described as the East One Half of Lot 17 and all of Lots 18, 19, and 20, Timberline
Village, has requested that Lewis County accept a donation of his property. Since the
properties now lie primarily within the Cowlitz River, the property owner sees no benefit
to owning the property, thus the offer of donation to the County. The Public Works
Department may be able to use the donated property for possible erosion control
from the Cowlitz River to the cul-de-sac on Coal Creek Drive. The attached resolution
would approve the transfer of the property described on the attached executed Quit
Claim Deed from Frederick Selden to Lewis County. Once accepted by the County by
signing this resolution the Quit Claim Deed will be recorded.
9. Resolution No. 13-521 Approving an inter-local agreement between Lewis
County and the City of Napavine regarding a Letter of Map Revision
submission.
Lee Napier, Director of Community Development, stated upon reviewing the 2006
Flood Insurance Rate maps prepared by FEMA, the City of Napavine believed the
mapping to be in error as it failed to correctly locate the river's floodway and flooding
characteristics. The City desires to correct the location and characteristics through a
Letter of Map Revision (LOMR). In response to the City's intend to submit a LOMR,
FEMA responded to the LOMR application by requesting a concurrence letter from the
County.
10. Resolution No. 13-522 Approving Amendment No. 11 to the Consolidated
Contract No. C16891 with the WA State Department of Health.
Danette York, Director of Public Health and Social Services, the Consolidated
Contract is the primary vehicle for transferring federal and state funding to Local Health
Jurisdictions (LHJs) for planning and local implementation of public health prevention
and early intervention programs and activities. This contract is effective for 3 years
(2012-2014). Funding is allocated annually with amendments throughout the year.
Motion carried 3-0
HEARING
Hearing: Ordinance 1247 License to Produce, Process, and Sell at Retail
Marijuana and Related Products.
Chairman Schulte announced the hearing and went over the procedures. He asked
staff for a report.
Glenn Carter, Prosecutors Office, stated Washington voters recently voted to legalize
recreational marijuana, and the Washington State Liquor Board (WSLB) promulgated
rules implementing the initiative. Under those rules, the WSLB allocated four permits to
unincorporated Lewis County. The rules specify that applicants for those permits must
comply with local law, including land use and business license requirements. The state
rules impose new costs on the county that will not be reimbursed. The new facilities will
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attract criminal attention and require extra patrols and sheriff’s personnel. It is
appropriate for the County to require a business license for each such producer,
processor and retailer of marijuana under state law.
The biggest controversy surrounding the WSLB rules is whether the state can legalize
what federal law explicitly prohibits. This is important to the county for a variety of
reasons, including but not limited to our desire not to issue a license to do what federal
law prohibits. The question therefore is whether federal law prohibits the liquor board’s
attempt to legalize a highly-regulated, intrastate market for the cultivation, processing
and sale of marijuana. The short answer is yes, federal law prohibits it.
The United States Supreme Court decided this issue in 2005, ruling that the federal
Controlled Substances Act constitutionally prohibits the purely intrastate cultivation and
use of marijuana even when it is in compliance with state law – in that case the
California medical marijuana law. In a 6-to-3 opinion, the U.S. Supreme Court upheld
Congress’ power under the Commerce Clause to regulate purely local production and
distribution of medical marijuana. See Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195,
162 L.Ed.2d 1, 73 USLW 4407, 05 Cal. Daily. Op. Serv. 4725 (2005). In other words,
the federal Controlled Substances Act pre-empted the California state law that
attempted to legalize medical marijuana. It is unlikely that the Supreme Court will
change its opinion. Rather, the liquor board points to a letter written by Attorney
General Holder saying that – in the exercise of his prosecutorial discretion -- his office
does not presently intend to prosecute small producers, processors and distributers of
“recreational” marijuana.
The United States Attorney General and prosecutors in general, when exercising their
prosecutorial discretion, issue at least two types of memoranda. The first type states
that the activity in question is legal. A second type states that the activity is illegal but
that, for whatever reason, violators will not be prosecuted. The memorandum provided
by Eric Holder in this case is of the second type. It admits that the conduct is illegal, but
says that he may or may not prosecute violators. There are several practical problems
with the memorandum: (1) it applies only as long as Eric Holder is in office – when he
leaves office he may be replaced by an attorney general that decides to prosecute
everyone that violates the Controlled Substances Act (CSA); (2) the memo does not
even ensure that Eric Holder will not prosecute Washingtonians for violating the CSA –
it simply states that he may not prosecute such folks; and, (3) the memo places any
local government official at risk of prosecution under federal law for permitting the
cultivation, processing and distributing of pot in violation of federal law.
Even if the Supreme Court had not decided the Gonzales case and declared that
federal drug law pre-empts state law, article 1, section 2 of the Washington Constitution
specifically provides that federal law is supreme in Washington:
The Constitution of the United States is the supreme law of the land.
In turn, the US Constitution provides:
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[T]he laws of the United States … shall be the supreme law of the
land…anything in the …laws of any state to the contrary notwithstanding.”
Art. VI, US Const. So, under the Washington Constitution, the federal drug laws are the
supreme law of Washington, “any law of [the] state to the contrary notwithstanding.”
Staff’s proposal reconciles the two by permitting the cultivation, processing and sale of
marijuana where the applicant has complied with the Controlled Substances Act
registration provision in 21 U.S.C. 823. Even though the Controlled Substances Act
outlaws the cultivation, processing and sale of marijuana it creates a process under
which US Attorney General – in this case the same Eric Holder who issued the memo
we referenced earlier – exempts persons and entities from the prohibition of federal law.
The applicable provision is set out in 21 USC 823 and is implemented at 21 CFR
1301.33. The Attorney General has issued exemptions under that statutory provision
and rule. Most recently, the Attorney General issued an exemption to the University of
Mississippi for growing, processing and distributing marijuana.
Hence, a procedure exists for people who wish to manufacture, process, and sell
marijuana to obtain the federal certification to do so. Under our proposal, any applicant
for a business license who presents their permit from the state liquor board and
presents their qualifying certificate from the United States Attorney General will receive
a business license from the County. The County will be assured that the federal
government has permitted the activity and the official issuing the license will be
protected from prosecution for permitting what otherwise would be a violation of federal
law. I understand some folks may say this is tantamount to a prohibition on
manufacturing, processing and distributing marijuana in unincorporated Lewis County
because the US Attorney General would “never” issue such an exemption. But, the
state has based the legitimacy of the rules on a memo from the same person Eric
Holder. If, as the state says, Eric Holder supports the rules, then this waiver should be
forthcoming. If, in fact, Eric Holder is not supportive of the rules, then he won’t issue the
exemption and the state perhaps should rethink the enterprise.
In particular, the liquor board might consider the advice given to the State of California
by the United States Supreme Court in Gonzales v. Raich. There, the Supreme Court
majority highlighted the provisions of the Controlled Substances Act that authorize the
Attorney General (Eric Holder) to reclassify Schedule 1 drugs, meaning Eric Holder
could reclassify marijuana from Schedule 1. 545 U.S. at 33. [At page 14 of the opinion,
the Supreme Court states that “The CSA provides for the periodic updating of schedules
and delegates authority to the Attorney General, after consultation with the Secretary of
Health and Human Services, to add, remove, or transfer substances to, from, or
between schedules.” 545 U.S. at 14-15; 21 U.S.C. 811. See also 545 U.S. at 33.]
If the Attorney General granted the request to remove marijuana from Schedule 1, the
state would no longer be requiring the county to ignore applicable, governing federal
law. If, however, the state already asked Attorney General Holder to do this and he
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has said no, then he has given his answer and the answer is that federal law prohibits
the production, processing and sale of marijuana anything in the state law and liquor
board rules to the contrary notwithstanding.
Ron Averill, Centralia, asked the County does not issue business licenses so does the
legislation creating recreational marijuana provide some type of provision for the County
to issue the business license?
Glenn Carter stated in the WAC 314-55-020 (11) these were the rules processed it
does specifically authorize County’s to require business licenses. We also do have a
kind of business license in the music festivals ordinance.
Ed Sookkooja, Pe Ell, stated the assumption was made that there would be crime
involved in surrounding these retail, production, or processing facility. What do you
base that on? Can you make that same assumption on banks?
Glenn Carter stated these would be sites that would bring criminal attention and the
problem is that there is a security concern that applies to banks and there is a security
concern that applies for to these sites.
Ed Sookkooja asked if this is only for unincorporated areas in the County.
Glen Carter answered yes.
Chairman Schulte asked if anyone would like to speak. There were none. He closed
the question and answer period and opened the formal hearing.
Glenn Carter asked that his previous comments be adopted into the record.
Ron Averill stated he personally has very strong concerns about recreational marijuana
being legally available to the population. He has always wondered why in a State that
has spent so much time effort and money to outlaw tobacco smoking has come around
and supported the growing and production of marijuana which is a product that is
smoked. He recommends approval of this Ordinance.
Ed Sookkooja stated you are making mountains out of mole hills. This is a new
industry and will bring jobs to our community.
Commissioner Grose stated the reason we are passing an Ordinance which has some
fees attached to it is because we recognize there are no provisions in the state law or
the liquor board control rules which will account for increase cost to the county which
may and probably will occur.
Chairman Schulte stated when he took his Oath of Office it was to support the
Constitution of the State of Washington and the United States Constitution. If we force
or allow putting our staff at risk for approving violation of federal law we are in remiss. I
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don’t want to put my staff in a position of approving a permit for an illegal activity by
federal law.
Commissioner Fund thanked council for putting together this Ordinance. There has
been a lot of study and work put into this.
Chairman Schulte asked if anyone would like to speak. There were none. He closed
the formal hearing and asked for a motion.
Commissioner Fund moved to approve Ordinance 1247. Commissioner Grose
seconded the motion.
Ordinance No. 1247 An Ordinance of Lewis County Adopting a new Chapter 20 of
Title 5 of the Lewis County Code Regarding a License to Produce, Process, and
Sell at Retail Marijuana and Related Products.
Motion carried 3-0
There being no further business, the Commissioners’ public meeting adjourned at 10:52
p.m. on November 4, 2013. The next public meeting will be held Monday, November 18,
2013.
Please note that minutes from the Board of County Commissioners’ meetings are not
verbatim. A recording of the meeting may be purchased at the Commissioners’ office.
BOARD OF COUNTY COMMISSIONERS
LEWIS COUNTY, WASHINGTON
ATTEST: P.W. Schulte, Chairman
Karri Muir, CMC, Clerk of the Board F. Lee Grose, Commissioner
Lewis County Commissioners
Edna J. Fund, Commissioner