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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