Medical Marijuana Update: Municipal Zoning and Land Use

May 15, 2018
By Matthew Korenoski
Posted in Medical Marijuana, Public and Non-Profit

NOTHING IN THIS DOCUMENT IS INTENDED OR SHALL BE CONSTRUED AS ADVICE TO PARTICIPATE IN, OR COUNSEL WITH RESPECT TO, CRIMINAL OR FRAUDULENT ACTIVITIES. POSSESSION, DISTRIBUTION, AND SALE OF MARIJUANA IS A SERIOUS CRIME UNDER FEDERAL LAW, AND ENGAGING IN THOSE ACTIVITIES WITHOUT REGISTRATION UNDER THE PENNSYLVANIA MEDICAL MARIJUANA ACT, 35 P.S. §§ 10231.106 ET SEQ., IS A SERIOUS CRIME UNDER PENNSYLVANIA LAW. NOTHING HEREIN SHALL BE CONSTRUED AS ADVICE TO VIOLATE ANY SUCH LAW.

In the two years since the passage of Pennsylvania’s Medical Marijuana Act (the “Act”), municipalities have had a number of concerns. Given the stigma attached to marijuana in general, as well as illegality under federal law, some communities still hesitate to embrace even medical use of the drug, citing safety concerns. Conversely, other communities have welcomed medical marijuana legalization because of the positive economic impact. In any event, municipalities and their solicitors should continue to stay abreast of developing law under the Act as well as how Phase II of the Act’s permit application process will impact municipal zoning and land use.[1]

Phase I of the permit application process for Dispensaries and Growers/Processors went live on January 17, 2017, and the Department of Health (“Department”) accepted applications until March 20, 2017. Over 900 applicants competed for these permits, but the Department only granted 12 Grower/Processor permits and 27 Dispensary permits.[2] The initial impact of these permit grants is evident as, to date, 25,573 patients have registered for Pennsylvania’s Medical Marijuana Program; 7,000 people have purchased a medical marijuana card after being certified as having one of the 17 qualifying medical conditions; and 6,683 people have made purchases, with these numbers only expected to increase.

On April 5, 2018, Phase II applications became available on Pennsylvania’s medical marijuana website, with May 17, 2018 noted as the application deadline.[3] For Phase II, the Department intends to issue up to 13 Grower/Processor permits and up to 23 Dispensary permits.[4] Applicants and municipalities alike should understand the Act and accompanying temporary regulations.[5] Importantly, permit applications that were previously submitted in Phase I will not be considered for a permit in Phase II. Rather, an applicant must submit a new, timely application package with the required fees to be considered for a permit in Phase II.

Specifically, for Growers/Processors, the Department intends to issue one Grower/Processor permit to the highest scoring, most qualified, and eligible applicant without regard to location. Like Phase I, for the remaining 12 Grower/Processor permits, the Department intends to issue up to two Grower/Processor permits in each of the six (6) existing Medical Marijuana Regions.

For Dispensaries, the primary Dispensary location may be in any county within the Medical Marijuana Region, and an applicant has the option of listing two additional Dispensary locations on the permit application for approval. However, while the second and third locations must be within the same Region as the primary location, the second and third locations are not permitted to be in the same county as the primary location, nor are the second and third locations themselves permitted to be in the same county.

Following Phase I applications and permit grants, more Pennsylvania municipalities have amended their zoning ordinances to allow for Growers/Processors and Dispensaries. While municipalities have taken a variety of approaches as to zoning, Growers/Processors are generally zoned as some variety of light industrial and/or commercial, and Dispensaries are usually permitted in commercial-type districts and even certain light industrial districts.

Obviously, municipalities and their solicitors must stay keenly aware that medical marijuana facilities are quite unlike other businesses. The customer in this scenario is purchasing a highly regulated substance that is still illegal under federal law. As such, these facilities each have specific security and safety requirements that are more heightened than those of more common businesses, such as comprehensive background checks and commercial-grade security and surveillance systems.

Overall, counsel representing municipal entities should continue to take care in not only adhering to the Act’s requirements and temporary regulations, but also in using some creativity to add additional zoning and land use restrictions where the Act is silent. Pennsylvania’s passage of the Act will only continue to impact local municipalities in the way they tailor their zoning ordinances, and municipal lawyers must stay aware of this new and constantly developing body of law.

For more information about zoning and permitting for medical marijuana, please contact Matt N. Korenoski of Strassburger McKenna Gutnick & Gefsky at (412) 281-5423 or mkorenoski@smgglaw.com.

[1] For a more in-depth discussion on background of the Act as applied to municipal zoning, please see: The Pennsylvania Medical Marijuana Act’s Impact on Municipal Zoning.

[2] For a map and table of the location of Phase I Dispensary and Grower/Processor Permittees, please see: http://www.health.pa.gov/My%20Health/Diseases%20and%20Conditions/M-P/MedicalMarijuana/Pages/Phase1.aspx#.WuCdwqJWW3j

[3] https://www.pa.gov/guides/pennsylvania-medical-marijuana-program/

[4] For more information about Phase II applications, please see: http://www.health.pa.gov/My%20Health/Diseases%20and%20Conditions/M-P/MedicalMarijuana/Documents/DOH%20-%20Instructions%20Phase%20II.pdf

[5] 28 Pa. Code Chapters 1141, 1151, 1161, 1171, 1181, 1191 and 1210.