A state agency’s “secret” approval of a permit for an Aurora medical marijuana growing facility violated the state law that established the permitting process, an attorney for a rival cannabis producer told the Illinois Supreme Court.
Further, the rival marijuana grower said, the Illinois Department of Agriculture’s decision to sign off on the permit for Curative Health’s Aurora cultivation building threatens to essentially rewrite Illinois’ land zoning laws, undermining Illinois homeowners’ confidence in the legal regime that gives them a say over what is built near their homes.
But lawyers for the state and Curative Health told the state high court that judges should leave the agency’s decision undisturbed, because the rival marijuana grower, Medponics, merely offered an “alternative interpretation” of a state law that otherwise blocks growing centers from being located within a half mile of residential neighborhoods.
The arguments centered on the continuing legal fight over Illinois’ final cannabis cultivation center license.
Under the law known as the Compassionate Use of Medical Cannabis Pilot Program Act, the state agreed to issue one cultivation license for such growing centers to be located within each of Illinois’ 12 state police districts.
Rivals Medponics and the much larger Curative Health were among the companies seeking the license for District 2, which includes much of Chicago’s suburbs, including the counties of DuPage, Kane, McHenry and Lake, as well as DeKalb County.
The Department of Agriculture was tasked under the law with developing regulations to guide the licensing process.
Medponics sought to open a licensed cultivation center in north suburban Zion, in Lake County.
Curative Health desired the license for a growing center in west suburban Aurora.
In 2015, the Department selected Curative to receive the District 2 license.
Medponics then sued, alleging the Illinois Department of Agriculture issued the license despite the state law’s language requiring all such cultivation centers to be set back at least 2,500 feet from areas zoned residential. Medponics said the Aurora center was located in an industrial park within a half mile of a neighborhood zoned residential.
Medponics further noted the approval of the site came over the objections of many Aurora residents, including those living near the proposed growing center and the owners of nearby child care centers. Medponics noted the city of Aurora was also warned, as early as 2014, by Aurora city council members, a DuPage County Board member and a state’s attorney, that the Aurora center’s location may violate the half-mile setback requirement.
In Lake County Circuit Court, now retired Judge Michael J. Fusz sided with Medponics in 2017, stripping the license from Curative.
The order, though signed by Judge Fusz, was prepared by Curative’s lawyer, William F. Moran, of the Springfield firm of Stratton, Moran, Sronce & Appleton.
Included in that order was a provision which purports to stay “enforcement of the nonmoney judgment” in the order “pending determination of any appeal.”
The Department of Agriculture then interpreted that language to mean it was still free to award the license to Curative, which it did in 2018.
On appeal, the Illinois Second District Appellate Court then sided with Curative, overturning Fusz’s judgment and declaring the Department of Agriculture was correct in granting the license to Curative.
The justices backed the Department of Agriculture in its contention it was within its authority to interpret the medical marijuana law to mean lawmakers only prohibited the development of cultivation centers within a half mile of property zoned “exclusively” for residential uses.
The residential zoning designations covering the Aurora neighborhoods within 2,500 feet of Curative’s site also included churches, schools and other non-residential land uses, allowed by the city to be built there under so-called special use permits.
Since those non-residential uses were permitted there, the state and the appellate justices reasoned this meant the neighborhoods were not “exclusively” residential, and so, Curative should be allowed to grow cannabis within 2,500 feet of those neighborhoods.
Medponics appealed that decision to the Illinois Supreme Court, where it argued that reasoning undermines zoning law and stands in defiance of the setback requirement placed by lawmakers into the state law.
The state’s position would essentially mean anytime a city, village or county grants a special use permit within a residential zoning district, that decision somehow lessens the residential designation of that zoning district.
Special use permits for churches, schools or other permitted developments “don’t change the zoning district or the zoning designation, they don’t change the zoning map,” said Medponics attorney Melissa Murphy Petros, of the Wilson Elser firm, of Chicago, in oral arguments before the Illinois Supreme Court on March 10 in Springfield.
“And this is important because people are entitled to rely on their zoning district. If, for example, I purchase a house in Aurora’s R-1 district which the ordinance say is zoned exclusively residential, I’m entitled to rely on that zoning designation, and not wind up perhaps years later, living half a mile from a medical cannabis cultivation center because the (Department of Agriculture) says, under its rule, that where I live is not exclusively residential, after all.”
Moran, arguing on behalf of Curative, pointed out to justices that its cultivation center would be “as innocuous, as possible,” in a windowless warehouse-type structure, with “unbelievable security,” in a pre-existing industrial park. Further, Moran noted the city of Aurora’s plan commission and city council approved the Curative project, after “much public debate.”
“The statute worked exactly as designed,” Moran said.
Illinois Assistant Attorney General Bridget DiBattista urged the state Supreme Court justices to uphold the Department of Agriculture’s selection of Curative.
Justices questioned the lawyers on several legal points, mainly focusing on the legal doctrine of regulatory deference, under which courts defer to the decisions of regulatory agencies when those agencies interpret their own regulations and rules, unless the agency can be shown to have clearly violated its rules or to have conflicted with reasoning undergirding prior similar regulatory decisions.
In this case, there are no such prior decisions, DiBattista argued.
Further, she said, Medponics can’t demonstrate the Department of Agriculture’s decision was “clearly erroneous.” Rather, she said, Medponics has merely advanced an “alternative interpretation” of those rules and of state law.
DiBattista said the state agency’s interpretation – that areas zoned for residential use cease to be “exclusively residential” when special use permits are approved for non-residential uses – is a legally defensible position, and should be allowed to stand.
Murphey Petros, however, said that interpretation of the law by the state agency improperly “restricts the scope” of the law and of lawmakers’ intent.
The “only logical reading” of the state’s cannabis cultivation law is to conclude that lawmakers “didn’t want cultivation centers closer than 2,500 feet from where people live,” Murphy Petros said.
The state Supreme Court has not yet ruled on the case