Posted by: Patricia Salkin | May 20, 2021

IL Supreme Court Concluded the Department of Agriculture Properly Awarded a Medical Cannabis Cultivation Center Permit

This post was authored by Olena Botshteyn, Esq.

In 2014, the Compassionate Use of Medical Cannabis Pilot Program Act (“Act”) took effect. The Act recognizes the benefits of using cannabis for medical reasons and regulates medical cannabis cultivation centers (facilities). The Department of Agriculture (“DOA”) is the authority registering and overseeing such centers. On July 25, 2014, the DOA adopted the Administrative Rules for effective enforcement of the Act.

Apart from other, the Act provides that cultivation centers “may not be located within 2,500 feet of an area zoned for residential use.” DOA in the Administrative Rules further define area zoned for residential use as an “area zoned exclusively for residential use.” Only one cultivation center may be placed in each of the 22 Illinois State Police (ISP) districts and a company proposing such a project is defined based on the number of points.

In September 2014, Curative, alongside other companies submitted an application to DOA to operate a cultivation center in the City of Aurora. Concurrently, Curative began obtaining a special use permit for the center and in November the permit was granted. In April 2015, the city zoning administrator sent a letter to the DOA’s general counsel, explaining that the proposed facility was not within 2500 feet of any area zoned exclusively for residential use, because the residential districts allowed other than residential uses with special use permit.

In October 2015, DOA granted Curative the cultivation center permit. One of Curative’s competitors, Medponics, which finished fifth based on the points, challenged the DOA’s decision, asserting that Curative’s proposed cultivation center violated the Act because it was located within 2500 feet of the R-1 and R-5 districts in Aurora, both of which Medponics alleged were zoned exclusively for residential use. The circuit court set aside the DOA’s decision, concluding that the City of Aurora defined the R-1 and R-5 districts as “zoned exclusively for residential purposes,” and the court of appeals reversed. Medponics then appealed to the Supreme Court.

On appeal, the court affirmed the decision of the court of appeals and concluded that the DOA’s position was not clearly erroneous, arbitrary, or unreasonable, when it decided that R-1 and R-5 districts in Aurora were not exclusively residential, and therefore Curative could locate its project within 2500 of these districts. Medponics argued that residential area and district are synonymous, and while the City Zoning Ordinance does not define “residential district,” it defines “residential area” as “[a] zoning lot or portion of a zoning lot designed or used exclusively for residential purposes.” The court disagreed, stating that while a residential area may consist of only one parcel pursuant to its definition, a residential district may not, and thus these are distinct.

The court further referred to the Administrative Rules to conclude that it was not the DOA’s intention to prohibit placement of cultivation centers within 2500 feet of any residential district. The Rules define that “Area zoned for residential use means an area zoned exclusively for residential use”; provided that in municipalities with a population over 2 million people, ‘an area zoned for residential use’ means an area zoned as a residential district or a residential planned development.” The court concluded that if the DOA had intended the location requirement to be violated every time a proposed cultivation center was within 2500 feet of an area zoned as a residential district, it would not have included this clarification with regard to cities with population over 2 million people.

The court then turned to the City Zoning Ordinance. Section entitled “Use Categories” of the Ordinance provides that certain nonresidential uses are allowed in R-1 and R-5 districts subject to a special use permit and certain do not require permits at all. The court thus concluded that these districts are not exclusively residential, and the DOA properly awarded the cultivation center permit to Curative.

Medponics Illinois v Department of Agriculture, 2021 IL 125443 (IL 5/20/2021)


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