The Illinois Supreme Court has ruled the Illinois Department of Agriculture was within its power to determine marijuana cultivation centers may be sited within 2,500 feet of residential areas, unless the areas are zoned "exclusively" residential, which could allow other state agencies to interpret state laws as they see fit.
The May 20 decision was penned by Justice David Overstreet, with concurrence from Chief Justice Anne Burke and Justices Rita Garman, P. Scott Neville Jr., Mary Jane Theis and Robert Carter. Justice Michael Burke did not take part.
The case involves the companies Medponics and Curative Health, both of which wanted to establish a medical marijuana cultivation center in State Police District 2. The state has earmarked one cultivation license for each of Illinois' 12 state police districts. District 2 covers DuPage, Kane, McHenry, Lake and DeKalb counties. Medponics planned its facility for a spot in Zion zoned for industrial use; Curative had a location at 2229 Diehl Road, Aurora. in a district zoned for manufacturing-general zoning.
Medponics is based in Lake County and Curative is affiliated with New York-based Columbia Care, one of the country's biggest players in marijuana cultivation and dispensaries.
Based on the state's scoring system, the Illinois Department of Agriculture awarded the District 2 license in 2015 to Curative, which came in first, with Medponics in fifth.
Medponics succeeded in having Lake County Judge Michael Fusz rescind the license, on grounds Curative's facility, although in a manufacturing zone, would be within 2,500 feet of another area zoned residential, which the state medical marijuana law forbade, according to Fusz.
Curative took the matter to Illinois Second District Appellate Court, which overturned Fusz' ruling, finding the law only barred marijuana centers within 2,500 feet of any property zoned "exclusively" residential. The appellate court noted Aurora allows special use permits in residential districts for such non-residential structures as schools and churches, so the residential area in question is not exclusively residential.
Medponics then sought out the state high court, but that panel agreed with the appellate court.
"The Department of Agriculture approved Curative’s proposed location after determining" Aurora's residential zoning "districts are not zoned exclusively residential due to the multitude of nonresidential uses authorized in those districts," Justice Overstreet wrote.
Overstreet also pointed out Aurora's zoning ordinance does not suggest the city's residential districts have ever been zoned exclusively residential
"Because of the numerous nonresidential uses in those districts as established by the Zoning Ordinance — some requiring special use permits and others not — we conclude" the "residential districts are not zoned exclusively for residential use," Overstreet found.
Overstreet observed the Department of Agriculture's interpretation that marijuana cultivation may be done within 2,500 feet of residential districts, unless the district is exclusively residential, applies to municipalities statewide.
During oral arguments, a justice asked Medponics attorney Melissa Murphy-Petros if any Illinois municipalities have "exclusive" residential zoning. Murphy-Petros replied there are some among the state's approximately 1,299 municipalities, one being suburban North Barrington.
The Department of Agriculture contended a state agency has authority to craft rules interpreting and applying the law, even if it means reading “area zoned for residential use," as spelled out in the state medical marijuana law, to mean “exclusively zoned for residential.”
If Medponics had won the case, it would have received the license assigned to Curative, because state law says any failed applicants who do not dispute the winner's license, lose their chance to acquire the license if the award of the license is overturned. Medponics was the only failed applicant to launch a challenge.
Medponics's attorney, Murphy-Petros, is with the Chicago firm of Wilson Elser Moskowitz Edelman & Dicker.
The Department of Agriculture was represented before the court by Assistant Illinois Attorney General Bridget DiBattista.
William F. Moran III, of Stratton, Moran, Townsend, Reichert, Sronce & Appleton, of Springfield, argued before the court on Curative's behalf.