Marijuana

Judge sides with Spanaway marijuana shop on ‘scenic’ highway buffer

The Gallery at 21802 Mountain Highway E. in Spanaway opened in February. Its owners have submitted a conditional use permit application to operate legally in Pierce County.
The Gallery at 21802 Mountain Highway E. in Spanaway opened in February. Its owners have submitted a conditional use permit application to operate legally in Pierce County.

Is a ban on marijuana businesses along a stretch of Mountain Highway evidence of impermissible bias among members of the Pierce County Council?

Pierce County Superior Court Judge Katherine M. Stolz raised the question Tuesday before granting a temporary injunction to the owners of a marijuana retail store affected by the ban.

Owners of The Gallery requested the injunction as part of a lawsuit they filed in January against Pierce County.

Owners Tedd Wetherbee and Mike Henery say they believe the buffer restriction will block their application for a permit to operate their Spanaway store at 21802 Mountain Highway E. once the county’s ban on pot businesses lifts Friday. They opened the store in February in violation of county code.

Stolz’s injunction doesn’t change the law, but it prevents enforcement of it until she decides whether the law should stand. Stolz will hear the matter again Aug. 5.

Stolz has ordered attorneys for both sides to come back with more facts to back up their claims.

“It seems to me that right now it’s discriminatory,” Stolz said of the ban. “But a lot more discovery is needed.”

Stolz noted inconsistency in the reasons given for the buffer, including a belief that the it was necessary to regulate crime along a stretch of highway where The Gallery planned to open.

“If you’re going to argue it’s to regulate crime, but you’re ignoring alcohol (sales), it seems to be that’s an inconsistent use,” Stolz said. “It seems to be solely based on the fact that you’re selling marijuana.”

Passed by the County Council in December, the buffer makes it illegal for licensed pot businesses to open along a 30-mile stretch of state Route 7 designated as scenic and recreational by the state.

The buffer, proposed by County Councilman Jim McCune, R-Graham, takes effect Friday, when state-licensed marijuana operations become legal in Pierce County.

Mark Nelson, attorney for The Gallery, called the action an example of “spot zoning” specifically targeting his clients.

He also faulted McCune’s argument that the ban was needed to protect a “scenic” highway.

Businesses near The Gallery include a lumber yard, abandoned car mechanic shops, junk yards and convenience stores. The Gallery is the “most aesthetically pleasing building on this stretch of highway,” Nelson said.

Representing the county, Stewart Estes argued it is premature to know if the buffer will prevent The Gallery from getting a county permit. The county hearing examiner will review The Gallery’s conditional use permit application next week.

Estes also disputed Nelson’s claim that the county’s actions constituted spot zoning. He defined spot zoning as changing a zoning designation in a specific area to benefit a particular business or business owner.

That did not happen here, Estes said.

Wetherbee and Henery were pleased with Stolz’s decision Tuesday.

“Clearly Judge Stolz saw … the county has not demonstrated this is a rational action,” Wetherbee said.

Brynn Grimley: 253-597-8467, @bgrimley

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