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Medical Marijuana Meets Zoning: Can You Grow, Smoke and Sell that Here?

Planning and Environmental Law, Vol. 62, No. 8, August 2010

Albany Law School Research Paper No. 33

6 Pages Posted: 9 Jul 2010 Last revised: 31 Jan 2014

Patricia Salkin

Touro College - Jacob D. Fuchsberg Law Center

Zachary Kansler

Albany Law School

Date Written: 2010

Abstract

Fourteen states currently permit the medical use of marijuana, yet state statutes fail to account for the challenges that confront municipal planners and officials whose agenda includes public health, safety and welfare of residents, including minor children. The intensity of the problem is perhaps most evident in Los Angeles, where there are approximately 800 dispensaries. Varying statutory approaches are provided for individuals to legitimately acquire the drug - they may grow it themselves, they may obtain it from their primary caregiver, or they may obtain it from a licensed dispensary. This raises a number of land use regulatory questions including: whether state law preempts local zoning when it comes to growing, buying and using marijuana for medicinal purposes; whether distance requirements, similar to those used in the regulation of adult business uses, can be utilized to regulate the use of medical marijuana; and, what types of special use permit considerations may be appropriate for considering activities related to the use of medical marijuana. In addition, questions as to whether growing and sale of the drug may constitute a valid home occupation, and whether marijuana is or should be considered an agricultural crop, and if so, what impact this would have on the relationship between agricultural regulation/policy and zoning, suggest a growing number of legal unanswered land use law related questions in this emerging area. This article pulls together information about how the municipalities in the fourteen states with legalized medical marijuana are beginning to sort through and address the challenging land use issues that confront communities faced with the growing, sale and use of the drug.

Keywords: marijuana, medical marijuana, cannibus, pot, zoning, moratoria, nuisance, land use, home occupation, home based business

JEL Classification: K11, K20, K32

Suggested Citation

Salkin, Patricia and Kansler, Zachary, Medical Marijuana Meets Zoning: Can You Grow, Smoke and Sell that Here? (2010). Planning and Environmental Law, Vol. 62, No. 8, August 2010; Albany Law School Research Paper No. 33. Available at SSRN: https://ssrn.com/abstract=1635438

Patricia E. Salkin (Contact Author)

Touro College - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

Zachary Kansler

Albany Law School

80 New Scotland Avenue
Albany, NY 12208
United States

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