Posted by: Patricia Salkin | July 18, 2018

MD Court of Special Appeals Holds County Ordinance Was Not Pre-empted by Maryland Medical Cannabis Program’s Regulatory Framework

This post was authored by Matthew Loeser, Esq.

In anticipation of receiving a license to dispense medical cannabis, Hippocratic Growth, LLC entered into agreements to open a dispensary in Grasonville, Maryland. Hippocratic was given preliminary licensing approval in December 2016, and submitted a building permit application for the property in February 2017. In this time, the Queen Anne’s County Commissioners enacted Resolution 17-06, which put a hold on the approval of medical cannabis zoning applications, and Ordinance 17-06, which created regulations that required conditional use approval and established set-back requirements for growing operations. While Resolution 17-06 was ultimately rescinded, the Planning and Zoning Department denied the building permit application pursuant to that Ordinance. The circuit court then granted appellees’ motion to dismiss Hippocratic’s claims arising from that denial.

In this case, Appellants argued that they had a protected constitutional interest arising from the Commission’s announcement of Hippocratic’s preliminary approval on December 9, 2016, and “possessed a vested property interest in a medical cannabis dispensary license that is cognizable under Article 24 of the Maryland Declaration of Rights.” Here, however, there was no dispute that appellants failed to obtain a permit at the subject property, nor did they make a substantial beginning to reconstruct the building at the property such that “the neighborhood may be advised that the land is being devoted to that use.” Accordingly, the court found the appellants never acquired a vested property interest.

Appellants next contended that they had a claim of entitlement in a medical cannabis dispensary interest. The record reflected that medical cannabis dispensaries were not delineated in the Queen Anne’s County Code. Additionally, the Planning and Zoning Department had not yet made a determination as to what, if anything, a dispensary would be compatible to, and whether or not it would meet the zoning requirements. As such, the court held that appellants did not acquire a vested property interest, and did not have a legitimate claim of entitlement to any other cognizable constitutional interest. Accordingly, the court affirmed the dismissal of appellants’ claims as to Resolution 17-06 and Ordinance 17-06.

Lastly, appellants argued that Ordinance 17-06 was preempted by state legislation. Specifically, they alleged that the Maryland Medical Cannabis Program’s regulatory framework preempted the Ordinance by conflict and implication. The court found the General Assembly did not intend to preempt the entire field of zoning law, or that Ordinance 17-06 prohibited an activity that was intended to be permitted by state law, where the plain language of the regulations required dispensaries, growers, and processors to “conform to all local zoning and planning requirements.” Accordingly, the court found that there was no preemption.

Hippocratic Growth, LLC v Board of County Commissioners of Queen Anne’s County, 2018 WL 3343588 (unrep. MD 7/9/3018)

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