With medical marijuana now the law in Pennsylvania, is your township or borough ready? If not, it’s high time that you sharpen your pencils and crack open your Zoning Ordinance.
The Medical Marijuana Act was approved by the Legislature in April of 2016, and the Commonwealth’s issuance of the first round of licenses is just around the corner. If your zoning officer hasn’t already received probes from potential medical marijuana businesses, they may soon. You will then be faced with the sticky questions of:
- Whether it is allowed under the current zoning;
- If so, is conditional use or special exception approval required?
- Should conditions be imposed on its use, and should it be limited to certain areas of the municipality?
All of these questions lead back to your Zoning Ordinance – and it’s relevance to regulating these uses.
Now is the time to review your Zoning Ordinance, so that you can start the community conversation and decide for yourselves how to treat these (newly legal) uses.
First, what is “medical marijuana” anyway?
While visions of head shops and black light posters might be swirling in your head when someone mentions medical marijuana, the key word is “medical.” Medical marijuana is limited by the Act to smokeless, non-edible forms of the extract from the marijuana plant. It will only be available by prescription to patients with a “serious medical condition.” And no, headaches and “back pain” do not qualify as “serious medical conditions.” Instead, the term covers conditions such as ALS, autism, cancer, Crohn’s Disease, epilepsy and many more. As a measure of some independence, medical marijuana cannot be prescribed from the facility dispensing it.
What is coming?
Generally, medical marijuana facilities will take one of two forms: a growing operation; and a dispensary. Each has its own peculiar requirements under state law. A growing operation, for example, will not be an open field of marijuana plants. Instead, it will be more akin to an industrial facility. The materials must be grown and processed in an indoor, enclosed facility. The facility must incorporate certain security features, and has regular reporting obligations to the state.
Next, a dispensary is where the prescribed medical marijuana is to be distributed to patients. Think CVS or Rite Aid, not Ted’s Hemp Shop. They also have strict reporting requirements, must be indoor, must have a pharmacist or physician on-site at all hours of operation, and must incorporate certain security features. In addition, the Act prohibits dispensaries within 1,000 feet of a school or daycare center. And the Act prohibits a growing operation and a dispensary on the same property.
What can we do?
The Medical Marijuana Act makes it seem so simple. Buried deep in the Act, it provides that a grower/growing operation must meet the same zoning and land use requirements as other manufacturing, processing and production facilities located in the same zoning district; and a dispensary must meet the same requirements as other commercial facilities in the same zoning district. However, this presumes that a previously illegal use will neatly fit into the existing zoning regulations. Many have interpreted this language (and related caselaw) to support that townships and boroughs retain the right to incorporate appropriate zoning regulations of growing and dispensary operations.
Consideration should include:
- Which zoning districts should allow the uses;
- Whether the use is permitted by right, conditional use or special exception;
- Limits on the hours of operation;
- A recitation of the regulatory requirements within the Act;
- Zoning considerations of storage and loading zones;
- Confirmation of an applicant obtaining all state approvals;
- Exterior lighting (at least during hours of operation);
- Building size and parking requirements; and
- Prohibitions on certain perceived nuisance uses (such as prohibition of drive-thrus, outdoor seating, outdoor vending machines, ATMs and other features that might play into the stereotype of a marijuana user).
Each of these features calls for an in-depth review by your planning commission and legal counsel. They may seem appropriate; they may seem reactionary. Either way, now is the time to start the community conversation and decide for yourselves how to treat these (newly legal) uses.
This post was co-authored by Siana Law Partners, Andrew J. Bellwoar and Michael G. Crotty. Click the links below to learn more.
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