The City of Montesano hearing examiner heard only opposition to a proposed variance for a proposed retail marijuana operation during a public hearing late last week.

The variance would allow for a retail marijuana operation to open within 1,000 feet of certain public structures and facilities (schools, playgrounds, recreation centers, child care centers, parks, public transit center, libraries or arcades). With a variance, it still would have to be no less than 100 feet from any of those locations.

Some 35 people packed the city council chambers at City Hall on Friday, Aug. 26. The audience included city councilmen Dan Wood and Dave Skaramuca, Mayor Vini Samuel, and former mayor Ken Estes.

The hearing examiner is Neil Aaland.

While some commenters were outright opposed to retail marijuana coming to the City of Montesano, many of the comments focused on the process of the public hearing itself — mostly, questioning if the hearing examiner has the authority to issue the requested variance.

Currently, the city does not have an ordinance allowing for a variance for retail marijuana.

Estes questioned the hearing examiner’s jurisdiction.

“I’m speaking today in opposition in allowing a variance of a nonexisting local law that prohibits marijuana retail sales,” Estes said. “The first question to be answered is does the hearing examiner have the jurisdiction to rule on a request for a variance on a state initiative, a Washington State RCW or a Liquor Control Board and WAC rule when there is no local law? I believe the answer is no.”

The former mayor noted that previous councils had not taken action to create city laws for marijuana operations. (According to a March 7, 2013, article in The Vidette, “Montesano mayor orders staff not to issue licenses for pot stores,” Estes told city employees they were not to issue licenses or permits for anyone wanting to bring any kind of marijuana distribution facility into city limits — that was after the council resisted establishing a moratorium to give the city time to plan for potential locations and zoning.)

Estes also said he was concerned that marijuana remains illegal according to federal law and that could have a financial impact on the city.

“The council’s intention not to pass a local zoning law was because of federal law, which at the time stated marijuana was a schedule-1 drug, and that same council may have understood what legal ramifications could occur — for example, the loss of federal grants, which are much more significant than trying to carve out a niche for marijuana business,” Estes said.

“Legal marijuana is a political decision and the local government should be the one to create an ordinance or not create an ordinance to make any changes in the 1,000-foot initiative and RCW. The hearing examiner should not be the scape goat for a political decision.”

Councilman Wood also addressed the hearing examiner with similar comments. Wood’s comments also echoed concerns he had expressed the Montesano City Council during its Aug. 23 meeting. Wood mentioned the 2013 council, and also a conversation with the current council earlier this year.

“The council declined to take action — it is not necessary for the council to act to not change something,” Wood said. “The issue of how it got here (before the hearing examiner) is something we’ll have to deal with internally at the city on our processes, and there have been some discussions on that.”

Those discussions were during the Aug. 23 city council meeting.

“There are ways the city has done some things for 16 years plus that maybe are not quite clear,” Wood said during the council meeting. “The municipal code turns on itself in a couple of places.”

In a letter to City Attorney Christopher Coker, Wood had said he believes the municiple code has conflicting language regarding the authority of the hearing examiner in relation to the authority of the city council.

During the council meeting, Coker explained the process for the hearing and the role of the hearing examiner.

“Somebody could walk in tomorrow and say they want to put in a gambling hall, but I think due process would allow them a hearing,” Coker said. “If somebody came to me and said they want to sumarily deny this, I would advise against that just because of due process. It may be a stupid hearing, and it might be a hearing that some people would consider a waste of time, but I still consider it an exercise of due process under our ordinances.

“I think it’s safe to allow the hearing whether we think it’s a good idea or not.”

In regard to concerns about conflicting municiple codes, Coker said it was a matter of some codes referring to “recommendations” from the hearing examiner (in which the council would approve or disapprove) and some codes referencing a “decision” from the hearing examiner (which is appealed to Superior Court).

At the public hearing three days later, Wood also said he had additional concerns.

The variance applicant was not present for the hearing, and the hearing examiner noted that not all applicable fees had been paid.

“It’s problematic to me that the hearing is going forward — as I understand the fees have to be paid for by the applicant, and that hasn’t happened. Can you render a decision absent of these fees being paid?” Wood asked. “And it seems to me that if the applicant doesn’t show, that ought to cause an automatic declining of the application.”

Mayor Samuel presented Montesano Police Chief Brett Vance’s concerns, as Vance could not be present for the hearing. The city and police chief noted possible increased costs for law enforcement.

The public works department noted concerns for potential parking issues.

Samuel also briefly stated her position on why the public hearing was being held.

“It is not the city administration’s position to refuse to allow anyone to make an application for a variance,” Samuel explained. “There is a difference between and application and an acceptance.”

In all, more than a dozen people spoke against the variance.

The hearing examiner has 10 business days before he must issue a written decision. If the council objects to whatever decision the hearing examiner issues, the matter must go before Grays Harbor County Superior Court.