Medical Marijuana – Not in my backyard?

When Governor Wolf signed Pennsylvania’s Medical Marijuana bill into law on April 17, 2016, it opened the door to an industry that will greatly impact all levels of state and local regulation, including local zoning ordinances.  Pennsylvania’s Medical Marijuana Law allows a maximum of 25 growers/processors and a maximum of 150 dispensaries.  Local and municipal governments will be tasked with enacting laws and zoning ordinances to regulate medical marijuana businesses in their communities.

Pennsylvania’s Medical Marijuana Law generally sets forth requirements for the potential business to obtain permits. Section 603(D), requires the Department of Health to create three regions within the Commonwealth for the purpose of granting permits to grower/processors and dispensaries. Within these three regions, the Department of Health shall issue permits based on considerations such as: regional population; the number of patients suffering from serious medical conditions; the types of serious medical conditions; access to public transportation; and any other factor the department deems relevant.

Section 703(B) of the Medical Marijuana Law, requires all grower/processors to only grow, store, harvest or process medical marijuana in an indoor, enclosed, secure facility located within this commonwealth.

Section 802(A), generally requires for all dispensaries that: (1) a dispensary may only dispense medical marijuana in an indoor, enclosed, secure facility located within this commonwealth, as determined by the department; (2) a dispensary may not operate on the same site as a facility used for growing and processing medical marijuana; (3) a dispensary may not be located within 1,000 feet of the property line of a public, private or parochial school or a day-care center. Section 802(B) allows the Department of Health to amend the prohibition under subsection (a)(3) above if it is shown by clear and convincing evidence that the amendment is necessary to provide adequate access to patients. Any amendment may include additional security, physical plant of a facility or other conditions necessary to protect children. This amendment was introduced by the State Senate over concerns that it would be impossible to place a dispensary in larger cities under the prohibition stated in section 802(A)(3).

Assuming that all permit criteria are met, a medical marijuana business could set up in your community.  As of this moment, communities do not have zoning ordinances enacted specific to medical marijuana businesses and the Medical Marijuana Law provides very little guidance.

Under the Medical Marijuana Law, municipalities may control where the medical marijuana business will be located through its zoning authority. Section 2107(1)of the Medical Marijuana Law, states a grower/processor shall meet the same municipal zoning and land use requirements as other manufacturing, processing and production facilities that are located in the same zoning district. Section 2107(2), states a dispensary shall meet the same municipal zoning and land use requirements as other commercial facilities that are located in the same zoning district.

Under the Pennsylvania Municipalities Planning Code (“PMPC”), the municipal, multi-municipal or county comprehensive plan, shall include a plan for land use, which may include provisions for the amount, intensity, character and timing of land use proposed for residence, industry, business, agriculture, major traffic and transit facilities, utilities, community facilities, public grounds, parks and recreation, preservation of prime agricultural lands, flood plains and other areas of special hazards and other similar uses. The PMPC also states that zoning ordinances shall promote, protect and facilitate the public health, safety, morals, and the general welfare. The PMPC generally requires municipalities to accommodate every conceivable use, including new uses, within the municipality.

Being subject to local municipal zoning ordinances also means that potential medical marijuana business may be subject to local opinions and beliefs against medical marijuana. While some local municipalities may welcome the potential job growth and economic benefits of the medical marijuana business and enact marijuana friendly ordinances, other municipalities may not. Through their zoning ordinances and regulations, those municipalities may make it difficult to set up a medical marijuana business within that community. Growers/processors are less likely to be affected as there will be fewer permits issued and they will need to be located in more rural locations where more land is available. Dispensaries may face much more opposition as locals may have fears, reasonably and unreasonably, of a medical marijuana business being located within their community.

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