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Friday, December 13, 2013

Local Governments & Medical Marijuana

On January 1, 2014, Illinois will join 18 other states and the District of Columbia in allowing the medical use and cultivation of cannabis.  We have received a number of questions from our municipal clients on this new law, including questions about local zoning control of cultivation centers and dispensaries within their community. The short answer is that municipalities can adopt local zoning controls on these land uses so long as the local regulations do not conflict with the state law or administrative rules.

The new state law will establish up to 22 cultivation centers (one for each Illinois State Police district), and up to 60 dispensaries "geographically dispersed throughout the State." The new law prohibits cultivation centers from locating within 2,500 feet of a pre-existing school, day care, or any residential district. The law also prohibits dispensaries from locating within 1,000 feet from schools or day cares. Dispensaries are also prohibited in residential units or within a residentially zoned area.

A municipality can enact local zoning regulations to identify the zoning district or districts in which cultivation centers and dispensaries are permitted. A municipality could also specify whether these uses are permitted by-right or require a special use permit in the allowable zoning districts. A municipality can also impose reasonable conditions on any special use permit to mitigate the impacts, just as it does for other special uses. A municipality might even prohibit dispensaries and cultivation centers in certain zoning districts, although a total ban on these uses in a municipality could be subject to challenge because the law states that municipalities cannot "unreasonably prohibit the cultivation, dispensing, and use of medical cannabis authorized by this Act." On the other hand, a short-term ban in the nature of a temporary moratorium while a municipality reviews and considers adopting regulations on these uses would be reasonable.

In addition to these local zoning issues, local governments have also raised questions about medical marijuana use in public places. The Act prohibits medical marijuana use in schools, school buses, motor vehicles, private residences used to provide licensed child care, and public places. A "public place" does not include hospitals, nursing homes, hospice care centers, long-term care facilities, and most private residences. A local government will have to establish a rational basis for prohibitions on medical marijuana use in locations other than those locations prohibited by the Act.

Finally, we know that local government employers have a number of questions about medical marijuana use by their employees.  We will provide an update on these issues in a future blog.
Post Authored by Julie Tappendorf and Daniel Bolin, Ancel Glink


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