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Monday, April 22, 2013

Medical Marijuana Bill Passes Illinois House

On April 17, 2013, the Illinois House passed HB 1, legalizing the cultivation and use of medical marijuana.  The bill now goes to the Senate for consideration.  If approved, Illinois will join 18 other states and Washington, D.C. in decriminalizing medical marijuana use.  
The bill is lengthy, and contains provisions relating to licensure, taxes, criminal penalties, and vehicle amendments. Local governments will be most interested in Section 140 that addresses local zoning and control of cannabis cultivation centers and dispensaries.   Section 140 provides as follows:
Section 140. Local ordinances. A unit of local government may enact reasonable zoning ordinances or resolutions, not in conflict with this Act or with Department of Agriculture or Department of Public Health rules, regulating registered medical cannabis cultivation center or medical cannabis dispensing organizations. No unit of local government, including a home rule unit, or school district may regulate registered medical cannabis organizations other than as provided in this Act and may not unreasonably prohibit the cultivation, dispensing, and use of medical cannabis authorized by this Act. This Section is a denial and limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.
The proposed legislation does not entirely preempt local control or zoning, but it would appear to limit a local government's authority over medical marijuana dispensaries and cultivation centers to the enactment of "reasonable zoning" regulations, so long as those regulations do not unreasonably prohibiting the cultivation, dispensing, and use of medical cannabis.  The bill contains an express preemption of home rule authority.
In addition to the local zoning language, the bill also restricts dispensing organizations from being located within 1,000 feet of a pre-existing public or private preschool, elementary, or secondary school, day care home or center, or part day child care facility. Dispensaries are also prohibited in houses, apartments, condominiums, or any residentially zoned area. No more than 22 cultivation centers will be permitted in Illinois, with one center for each Illinois State Police district boundary.  No more than 60 dispensaries will be permitted in Illinois, and the law would require them to be "geographically dispersed throughout the State," although the bill does not further define what that means.
So, what does this mean for Illinois municipalities? Under the proposed language, a municipality should be able to zone cultivation centers and dispensaries, both by identifying the appropriate (or inappropriate) zoning districts for such uses, as well as determining whether these uses should be permitted by-right or require a special use permit in the defined zoning districts. A municipality should also be permitted to impose reasonable conditions on any special use permit to mitigate the impacts, just as it does for other special uses.  Likewise, it would seem reasonable to prohibit dispensaries and cultivation centers in certain zoning districts. An outright ban on all cultivation centers and dispensaries, however, would probably have to be supported by findings of fact that there is a rational basis for banning these uses from a particular community (e.g., unique character). 
Given that the House went through five separate amendments to HB 1, we may see one or more additional amendments to this bill before it would make its way to the Governor for signature.
Post Authored by Julie Tappendorf, Ancel Glink


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