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Senate Bill 3: There Will be Pot but Not in Every Pot in Pennsylvania!

February 11, 2015

If all the pundits are correct, 2015 is the year there will be pot but not in every pot in Pennsylvania.  No matter when the General Assembly ultimately decides Medical Cannabis is good for the entire Commonwealth, local governments will have a say in determining where it will be grown, processed and dispensed.  Will Medical Cannabis be subjected to the NIMBY Reaction or inhaled by many with the PIMBY Greeting? (Please in my backyard!)
          
This article will explore how local zoning power can be used to either promote or burn the seeds of humanitarian relief to those in medical need of Medical Cannabis.
 
In an overwhelmingly bi-partisan vote of 43 to 7, the Pennsylvania Senate, at Senate Bill 1182 passed the Medical Cannabis Act in 2014.  However, after achieving this legislative high the effort to legalize the use of Medical Cannabis in Pennsylvania crashed and burned in the Pennsylvania House of Representatives.
           
With the seeding of the 2015 General Assembly the two major sponsors of the Medical Cannabis Act,  Senator Michael Folmer, (R., 48th Sen. Dist.)  and Senator Daylin  Leach, ( D., 19th Sen. Dist.)  have introduced  Senate Bill 3 (“SB 3”), a clone of Senate Bill 1182.  The fire still rages within these legislative advocates to see the legalization of Medical Cannabis.  Their effort to achieve a legislative victory has been re-ignited by  the public statement of Governor Tom Wolf, expressing a willingness to sign a humanitarian Medical Cannabis Bill if and when it reaches his desk.
          
For purposes of this article we will discuss the provisions of SB 3.  SB 3 directs that each grower, processer and dispenser license shall be valid for a specific, physical location within the municipality and county for which it was originally granted.  [(§ 508) See Section 508]

The bill further prohibits the distribution of Medical Cannabis from a location other than a licensed facility. § 508 (a).

Without usurping local municipal zoning power, SB 3 provides specific legislative zoning standards for the treatment of Medical Cannabis, growers, processors and dispensers. 

§508(B), provides:
Zoning –-The following shall apply:
(1) the growing of medical cannabis shall be classified as a normal agricultural operation as defined under Section 2 of the Act of June 10, 1982.  (P.L.454, No. 133) referred to as the Right –to- Farm Law.
(2) Facilities for the manufacturing, preparation and production of medical cannabis shall meet the same municipal zoning and land use requirements as other manufacturing, preparation and production facilities.
(3) Facilities for the dispensing of medical cannabis shall meet the same municipal zoning and land use requirements as other commercial facilities.
          
These provisions, on the surface, appear to put on notice municipal governments that they cannot exclude growers, processors and dispensers of Medical Cannabis from their geographic boundaries.  Municipalities will have to pass ordinances to allow growers, processors, and dispensers somewhere within their physical boundaries.  If not, the municipality will surely face an exclusionary zoning challenge.
          
Somewhere between exclusion and permission by right will lie the zoning treatment accorded growers, processors and dispensers in the various two thousand five hundred and sixty two (2,562) municipalities in the Commonwealth of Pennsylvania.
           
If the General Assembly, in its infinite wisdom, believes the way has been paved for an easy “zoning trip” it may itself be in need of some Medical Cannabis before a licensed facility actually opens for business.
          
After all, there will only be 65 Medical Cannabis growers’ licenses and only 65 Medical Cannabis processors licenses granted.  There will not even be enough for one of either license in each of the sixty seven (67) counties of Pennsylvania. Further, the processor licenses are to be geographically dispersed throughout the Commonwealth to allow access to  processed Medical Cannabis by Medical Cannabis dispensers.

On the other hand, there will be not more than one hundred and thirty (130) Medical Cannabis dispensers licenses dispersed throughout the Commonwealth.  By sheer number, there will be many municipalities whom will escape the upcoming Medical Cannabis zoning madness. 

The question for all is : What zoning approval processes  are in store for these future growers, processors and dispensers of Medical Cannabis  fortunate  enough to be awarded these precious two hundred  sixty (260) licenses?  For a point of reference as to the dearness of these Medical Cannabis Licenses, one need look no farther than to the Pennsylvania Liquor Control Board which issues, renews or validates approximately twenty one thousand (21,000) licenses on an annual basis.

Senate Bill 3 breaks down the food chain of bringing Medical Cannabis from the farm to the patient into three distinct links: growers, processors and dispensers.
 
Before the “grass rush” begins for actual physical locations within Pennsylvania, entrepreneurs, land owners and landlords will need to be aware of some physical and spatial restrictions.

Like mushrooms, Senate Bill 3 provides Medical Cannabis can only be grown indoors and in an enclosed, secured facility. (§ 501(G) (3) The processor must also conduct its activities indoors in an enclosed secure space with an electronic loading system, unlimited access area and with contiguous electronic surveillance. (§ 502(F) (5)  On the other hand, Medical Cannabis dispensers must maintain an enclosed, secure physical premises, where the Medical Cannabis may not be visible from the entryway to an individual who is not an occupation-permitted employee, or owner or operator of the licensed premises . See § 503 (f) (5). These dispensaries are to be dispersed throughout the Commonwealth to allow all registered patients reasonable proximity and access to Medical Cannabis. See§503(A)
(Query: If you would walk a mile for a Camel is driving 50 miles too far for Medical Cannabis?).

Two major prohibitions are applicable to all growers, processors and dispensers.  None of these uses can be located in a residential dwelling or an area zoned for residential use. Secondly, these uses cannot be located within one thousand (1,000) feet of the property line of a public, private or parochial school or a day care center. See §501 (h) (1) & (2), §502 (g) (1) & (2) and § 503(g)(1) & (2).
      
An interesting issue that will remain unanswered for now is whether a local zoning hearing board or a zoning board of adjustment can grant a variance from these statutorily prescribed spatial prohibitions.  Theoretically, the State Board of Medical Cannabis Licensing will approve only a facility that meets these spatial requirements.
 
A licensed facility, by statutory definition must not be in violation of these spatial prohibitions.  Although there is no specific language of “zoning preemption” within the four corners of SB 3, we suggest any variance from these spatial requirements granted by a local zoning hearing board will not survive appellate review.
 
Somewhere there may be a municipality which lies within the geographically dispersed zone needed to allow registered patients access to Medical Cannabis that may have enough public, private, parochial schools or day care centers placed throughout its jurisdiction so that any licensed Medical Cannabis facility will run afoul of these spatial requirements. (Query: Does the day care prohibition apply to child day care only? What about adult day care? Or does it apply to all day care regardless of age?).  In fact, a municipality could remap to allow these educational uses as an Educational Use Overlay District in Commercial and Industrial Districts throughout its borders as a strategy to frustrate the right of access to Medical Cannabis being created by SB 3. What happens when the right of access to education collides with the right to Medical Cannabis in the realm of municipal land use?

It is our opinion  the legislative directives of §508(B)(1),(2) &(3) do not go far enough to ensure there will be enough processors and dispensers geographically dispersed throughout the Commonwealth to allow registered patients reasonable proximity and access to Medical Cannabis from a Medical Cannabis dispenser.

These zoning provisions of SB 3, which require processors and dispensers to meet the same municipal zoning and land use  requirements as any other manufacturing, preparation and production facility or any other commercial facility leave far too much wiggle room to local ordinances.  Specific manufacturing, preparation and production facilities are dealt with in many different rather than similar ways within the same municipal zoning ordinance.  Some manufacturing, preparation and production activities are considered more hazardous than others.  These uses are often limited to areas farther removed from commercial and residential areas.  Consequently, the location of an approved Medical Cannabis processor may be treated more like the manufacturer of chemical products (destined for a least restrictive industrial zoning) than as a manufacturer of apparel and garments which is considered a light manufacturing production process.

The same can be said for a Medical Cannabis dispenser being considered a commercial use.  Are they to be treated like a major drug store chain or will they be treated as akin to drug paraphernalia store and classified as a restricted regulated use?

The truth of the matter is, there does not exist a universally same treatment of commercial and manufacturing facilities  in accordance with the same municipal zoning and land use requirements.  There has been desperate treatment of different commercial and manufacturing uses since the Village of  Euclid v. Ambler Realty CO, 272. U.S. 365 (1926) recognized zoning as a permissible local governmental activity. 
 
Even with §508(B)(1),(2)&(3), whether a medical dispenser becomes a use permitted by right or one that requires a Special Exception or a Conditional Use approval will be left up to the wisdom of the local municipality.  Being consigned to needing a Special Exception or a Conditional Use will expose a licensed facility to a public hearing.  A licensed Medical Cannabis facility will be exposed to the ordinary path of appellate review.

We suggest the General Assembly to consider borrowing a page from the Casino Gaming Licensing Act and make any appeal from a final order, determination  or decision of  a political subdivision or local instrumentality  involving zoning, usage layout, construction or occupancy including location, size, bulk and use of a licensed facility under the Medical Cannabis Act vested exclusively in the Supreme of Pennsylvania. See 4 Pa. C. S. § 1506. The General Assembly should also provide for the Supreme Court to appoint a master to hear an appeal under any exclusive appellate review provision.

We urge the General Assembly to provide that no local zoning ordinance can limit the authority of the State Board of Medical Cannabis Licensing under the Medical Cannabis Act  to identify the property on which it will permit a licensed grower,  processor or dispenser facility.  Further language should be added expressly providing that local ordinances shall be written so as not to be construed to prohibit any use that is exclusively regulated and permitted by the Commonwealth of Pennsylvania under the Medical Cannabis Act.

We recommend the General Assembly go one step further by establishing more direct legislative guidelines as to the exercise of local zoning power over licensed sites authorized by the State Board of Medical Cannabis Licensing. There will be a limited number of dispensing licenses state wide (130). The legislative directive is to disperse this limited number of dispensing licenses throughout the Commonwealth to allow all registered patients reasonable proximity and access to Medical Cannabis by a Medical Cannabis dispenser.  A similar legislative directive applies to Medical Cannabis processors (only 65 licenses) to have them  geographically dispersed to allow access to processed  Medical Cannabis.

We urge the General Assembly to consider the addition of the following bold language to the provisions of §508(B)(1)(2)& (3):

§508(B)(1) The growing of Medical Cannabis shall be classified as a normal agricultural operation as defined under Section 2 of the Act June 1982 (P.L. 454, No.133) referred to as the Right to Farm Law and shall be a permitted use where any normal agricultural, plant nursery, or greenhouse use is allowed by right under the applicable municipal zoning and land use and subdivision and land development ordinances  provided the location complies with the spacing prohibitions in §501(h)(1) and (2).

(2) Facilities for  the manufacturing, preparation and production of Medical Cannabis shall meet the same municipal zoning and land use and subdivision and land development requirements as other manufacturing preparation and production facilities and shall be provided for by right as a permitted use within any commercial or industrial district under the applicable municipal zoning and land use and subdivision and land development  ordinances which allows any other manufacturing, preparation or production activity where a location  meets the spacing prohibitions in § 502(g)(1)&(2).

(3) Facilities for the dispensing of medical cannabis shall meet the same municipal zoning and land use and subdivision and land development requirements as other commercial facilities and shall be provided for by right as a permitted use within any commercial or industrial district under the applicable municipal zoning and land use and subdivision and land development ordinances which allows commercial retail facilities where a location meets the spacing prohibitions in §503(g)(1)&(2). 

These suggested amendments are offered to provide more direction to local municipalities to enable the will of the General Assembly in declaring Medical Cannabis to be beneficial in easing the pain of Pennsylvanians suffering from a qualified medical condition.  Local zoning and land use ordinances can easily be used to frustrate the humane use of Medical Cannabis.  The General Assembly should be as explicit as possible in establishing legislative  zoning guidelines, without  going overboard, as in  Robinson Township v. Commonwealth of Pennsylvania, 83 A. 3d  901 ( Pa. 2013) if there will be Medical Cannabis in some pots in Pennsylvania.

We take the position that this discussion of the zoning provisions of SB 3 is not violative of the American Bar Association’s Model Rules of Professional Conduct which “prohibits lawyers from knowingly facilitating criminal conduct.”

For a fuller discussion of the major provisions of SB 3 along with selected existing municipal zoning ordinances and suggested local ordinance forms please view:  “A Closer Look at Pennsylvania Senate Bill 3”

Authored By: Stephen G. Pollock, Esquire in conjunction with Darwin Beauvais , Esquire, Meredith Ferleger, Esquire  and Rachael Pritzker, Esquire of the Zoning and Land Use Department of Zarwin Baum DeVito Kaplan Schaer & Toddy, P.C. 


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