Thursday, February 20th, 2014

Proposed Cannabis Rules Released by the DFPR

For months, we have awaited the release of various state department guidelines providing further details about medical cannabis facilities. The Department of Financial and Professional Regulation finally released its proposed rules (“Rules”) last week. Here are some highlights.

First, the Rules offer almost no additional clarity as to what may be “reasonable” vs. “unreasonable” zoning restrictions of cannabis facilities. Yet, some new details are contained in the Rules, such as where dispensaries will be located, as well as a new notice requirement for municipalities to contact the DFPR if it takes any action “relating to the operation” of a dispensary.

Geographically speaking, several counties in the Chicago metropolitan area are designated to have one of the 60 total available dispensary registration locations, including one registration in each of DeKalb, DuPage, Kane, Lake, McHenry, and Will counties. Chicago would have 15 locations and surrounding Cook County would have an additional 11 designated locations (the 11 are subdivided among townships, such as one dispensary location in the region comprising Barrington, Hanover and Palatine townships). The remaining 21 proposed locations are divided by police districts across the rest of the state.

As it pertains to municipal or county zoning, there is a brief section in the Rules about local government zoning that does not say anything distinctly new about zoning regulations. The section just restates that no requirements can be implemented by local governments that “conflict with the Act” or the DFPR’s jurisdiction, or that “place unreasonable restrictions on the location of dispensaries.” What is reasonable continues to be, in our view, an allowance for the municipality to designate cannabis facilities for special use permits and/or restrict facilities in certain zones, so long as the restrictions are for valid reasons and do not have the practical effect of prohibiting cannabis facilities entirely. Further definition will seemingly have to come from the courts.

The greater likelihood is that any individual municipality outside of Chicago will not have a cannabis cultivation center or dispensary because of the limited number of facilities that the Pilot Act allows. To put the numbers into perspective, Lake and McHenry counties will jointly have two cannabis dispensaries and possibly one cultivation center among their roughly 75 cities and villages (plus unincorporated areas). There is little rationale in spending great amounts of resources addressing cannabis zoning in light of (a) the remoteness of a facility being brought into any particular municipality, and (b) the reality that a municipality cannot unreasonably restrict facilities, even if it wanted to prohibit them entirely.

However, editorially speaking, zoning ordinances should still be considered carefully and implemented for another reason: the seemingly ineluctable trend across the nation is that legalized marijuana will continue to expand.

The Pilot Act is set to expire at the end of 2017, and while it is speculative, there is a distinct possibility that forthcoming state and/or federal law will broadly expand the number of Illinois residents who can legally obtain cannabis. If there is an increased demand, there would seemingly need to be an expansion of licensed cultivation centers and dispensaries which would make zoning ordinances much more relevant to all municipalities.


Brad Stewart

Author: Brad Stewart