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Thursday, August 1, 2013

Governor's Signature Brings Medical Marijuana to Illinois

On August 1, 2013, Governor Quinn signed Ill. H.B. 1 and, effective January 1, 2014, Illinois will join 18 other states and the District of Columbia in allowing for the medical use and cultivation of cannabis.  As we previously reported, this legislation 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 law imposes distance requirements for cultivation centers (2,500 feet) and dispensing organizations (1,000 feet) from the property line of any pre-existing public or private preschool, elementary, or secondary school, day care home or center, or part day child care facility. Cultivation centers must also be located 2,500 feet from any area zoned for residential use, and dispensaries are prohibited in houses, apartments, condominiums, or any residentially zoned area.

Some home rule and non-home rule local government regulations are preempted by this legislation, but local governments may still enact reasonable zoning ordinances regulating cultivation centers and dispensaries that do not conflict with the Act or its administrative rules. Therefore, 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.
The Act also provides that communities may not “unreasonably prohibit the cultivation, dispensing, and use of medical cannabis authorized by this Act.” Therefore, an outright ban on all cultivation centers and dispensaries, 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). For example, a local zoning ordinance prohibiting cultivation centers or dispensaries simply because the use may violate federal law (e.g., the federal Controlled Substances Act) would likely be invalid under the new Illinois law. Ter Beek v. City of Wyoming, 297 Mich. App. 446, 450, 823 N.W.2d 864, 866 (2012)(finding preemption under Michigan Medical Marijuana Act). Finally, 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. Those locations include 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.

Post Authored by Daniel J. Bolin


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