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    Land Use Regulation of Marijuana Cultivation: What Authority Is Left to Local Government

    by Martha Harrell Chumbler

    Martha Harrell Chumbler, Attorney, Carlton Fields, Tallahassee, Florida ( J.D., Florida State University; B.A., Vanderbilt University).

    AS OF MARCH 2017, TWENTY-EIGHT STATES HAVE ADOPTED STATUTES — and, in some instances, constitutional provisions—allowing the cultivation of marijuana for medical use,1 while eight states permit at least limited cultivation of marijuana for adult, nonmedical uses (hereinafter referred to as “recreational use”).2 Three additional states, Missouri, South Carolina, and Texas, allow in- state cultivation of some form of cannabis for medical use.3 While all local governments in the United States have constitutional or statutory authority to regulate land uses within their jurisdictions, most of the existing state marijuana statutes include limits on that authority. This tension between state regulation and local land use regulatory authority differs from state to state. Some state statutes explicitly provide for either broad local authority to regulate marijuana land uses or impose significant constraints on that authority, while others restrict certain local regulatory options while otherwise preserving local authority to regulate land uses. Yet other state statutes are silent on the subject, but implicitly preempt local authority to some extent by imposing statewide land use restrictions.

    This article provides an overview of the various approaches taken under current state statutory schemes, as well as the view taken by courts that have been called upon to determine the extent to which local authority is retained.

    I. Express Authorization of Local Government to Ban Marijuana Cultivation

    Some statutes — despite establishing a state regulatory program allowing marijuana cultivation and other marijuana operations—expressly delegate to local governments the power to prohibit all such operations within the local jurisdiction. For example, Colorado’s constitutional provision authorizing recreational use of marijuana provides that “[a] locality may prohibit the operation of marijuana cultivation facilities [and other marijuana operations].…4 Similar provisions are included in Alaska’s recreational marijuana statute and Vermont’s medical marijuana statutes, both of which allow local governments to prohibit marijuana operation, including cultivation, within their jurisdictions.5 As of 2016, Michigan has allowed municipalities to control whether any medical marijuana operations occur within municipal boundaries and, if so, what kind and how many.6 California authorizes local governments “to completely prohibit one or more types of [marijuana] businesses … within the local jurisdiction,”7 but expressly prohibits local governments from banning personal cultivation as long as it is undertaken inside a residence or accessory structure.8

    Oregon has taken a somewhat different approach, by providing specific “opt-out” provisions for local government. Amendments to Oregon’s statute enacted in 2015 specifically preempt all preexisting local land use regulations relating to recreational marijuana, but allow subsequent enactment of local bans through a voter petition initiative process.9

    Preemption of municipal charter amendments and local ordinances. The provisions of … [the recreational marijuana statutes] are designed to operate uniformly throughout the state and are paramount and superior to and fully replace and supersede any municipal charter amendment or local ordinance inconsistent with the provisions of… [the recreational marijuana statutes]. Amendments and ordinances that are inconsistent with the provisions of … [those statutes] are repealed.

    Prohibition against operation of licensed premises; petition; election. (1) The governing body of a city or a county, when a petition is filed as provided in this section, shall order an election on the question whether the operation of licensed premises should be prohibited in the city or county.10

    A petition seeking one or more types of marijuana facilities banned must be signed by not less than ten percent (10%) of the registered voters in the local jurisdiction. If a majority votes for the prohibition, the ban becomes effective on January 1st following the election date.11

    The same 2015 legislation that included the voter petition requirement, however, also provided a significant grandfather exception for those local governments located in the 15 counties where 55% or more of voters opposed Ballot Measure 91, the 2014 voter initiative measure that decriminalized recreational marijuana in Oregon.12 Those local jurisdictions were provided a time-limited opportunity to adopt ordinances banning any or all future marijuana processing operations without the need for a voter initiative.13 Those ordinances had to be adopted before January 1, 2016. As of February 2017, prohibition of recreational marijuana facilities by petition initiative had been pursued in only one Oregon city, while 89 cities and counties had enacted bans under the grandfather clause.14

    II. Express Limitation of Local Authority to Ban Marijuana Cultivation

    Some state statutes authorizing medical and/or recreational uses of marijuana are explicit regarding the remaining authority of local jurisdictions to completely ban marijuana facilities. For example, Delaware’s Medical Marijuana Act15 expressly preserves local authority to enact zoning and other land use regulations relating to medical marijuana operations — if they are not in conflict with the state statute — but provides further:

    [N]o local government may prohibit registered compassion center operations altogether, either expressly or through enactment of ordinances or regulations which make registered compassion center… operations unreasonably impracticable in the jurisdiction.16

    Similarly, Texas law prohibits any local “rule, ordinance, order, resolution, or other regulation that prohibits the cultivation … of low THC-cannabis,”17 while Hawaii’s statute provides that “medical marijuana production center(s) shall be permitted in any area in which agricultural production is permitted …”18 Illinois’ Compassionate Use of Marijuana Pilot Project Act does not completely preempt local authority to ban medical marijuana operations, but imposes the restriction that local ordinances may not “unreasonably prohibit the cultivation, dispensing, or use of medical cannabis …”19

    Pennsylvania’s law is somewhat less clear, but does provide that medical marijuana cultivation facilities “shall meet the same municipal zoning and land use requirements as other manufacturing, processing and production facilities that are located in the same zoning district.”20 The statute thus creates a strong inference that local governments may not completely prohibit medical marijuana cultivation in zones where other types of manufacturing, processing, or production facilities are permitted.

    Florida is the most proscriptive, at least with respect to medical marijuana cultivation and processing, stating that “[a]ll matters regarding the regulation of the cultivation and processing of medical cannabis or low-THC cannabis … are preempted to the state.”21 Not only are local governments barred from banning the cultivation of medical marijuana, they may not impose any restrictions beyond those included in the state statute or state agency regulations implementing the statute. In contrast, the Florida law specifically preserves to local governments the authority to adopt land use ordinances relating to marijuana dispensing facilities, as long as those ordinances do not conflict with state law.

    Thus, for example, Osceola County, Florida has amended its zoning code to impose land use restrictions on “medical marijuana treatment centers,”22 but specifically excludes “growing, cultivating, or processing cannabis” from those restrictions.23 Notwithstanding the broadly stated statutory preemption, however, at least one Florida county has adopted land use restrictions on “cannabis farms,” including specifying the zones within which such operations may be located, but only by special exception, and imposing various other land use restrictions.24

    III. Case Law Regarding Local Authority to Ban Marijuana Operations

    A. Cases Upholding Local Authority

    Most marijuana statutes do not clearly state whether local governments retain the authority to ban marijuana cultivation. Indeed, a number make no mention of local authority to regulate marijuana land uses at all. In the absence of a clear indication of preemptive intent, local land use authority is not generally found to be preempted by state law, unless in direct conflict with state law. Such a conflict occurs when local law permits something that is forbidden by state law or prohibits activity or operations that state law requires.25 Some states’ jurisprudence also consider a local law to be preempted if it prohibits something that state law expressly allows.26 Moreover, when state law on a subject is so comprehensive as to “fully occupy” the field, there is no regulatory authority left to be exercised by local governments.27 While these principles can be simply stated, uncertainty regarding their application has led to significant litigation relating to local authority to ban marijuana land uses.

    Most of the case law to date reflects courts’ reluctance to conclude that traditional local authority to regulate land uses has been preempted by state marijuana statutes. For example, in City of Riverside v. Inland Empire Patients Health & Wellness Center, the California Supreme Court considered whether a local ban on medical marijuana facilities was invalid, given the statewide medical marijuana statutes in effect at that time. One of those statutes, the Medical Marijuana Program (“MMP),28 provided that patients and caregivers who cultivated, processed, transported, or sold marijuana for medical purposes “would not be subject to state criminal sanctions [under certain identified state statutes] …”29 Notwithstanding the state law, Riverside adopted an ordinance banning medical marijuana facilities in every zoning district and declaring any such use to be a public nuisance.30

    The Inland Empire court determined that the MMP was limited in scope, providing immunity only from certain enumerated state criminal and nuisance statutes.31 Moreover, because nothing in the MMP

    explicitly guarantees the availability of locations where such activities may occur, restricts the broad authority traditionally possessed by local jurisdictions to regulate zoning and land use planning within their borders, or requires local zoning and licensing laws to accommodate the … cultivation and distribution of medical marijuana. Hence, there is no ground to conclude that Riverside’s ordinance is expressly preempted by the MMP.32

    The court also found no implied preemptive intent since it remained possible to comply with both the state and local laws by refraining to engage in medical marijuana operations altogether. The MMP did not require cultivation or other medical marijuana activities; the city ordinance did not require conduct banned by the MMP.33

    Finally, the court construed the MMP as only a limited foray into the regulation of marijuana operations, rather than a statutory scheme that either “fully occup[ied] the field of medical marijuana regulation” or regulated the field to such an extent “that further local regulation would not be tolerated.”34 Given this view of the MMP’s limited scope and the presumption against preemption in home-rule states like California,35 the court concluded that variations in local circumstances outweighed any implication that the state statute was intended to preempt local authority to prohibit marijuana cultivation.

    Inland Empire was limited somewhat by the subsequent decision in Kirby v. County of Fresno.36 The Kirby court agreed with Inland Empire that ambiguities in the MMP regarding retained local land use authority were insufficient to establish preemption.

    We conclude the ban on cultivation adopted under the County’s authority to regulate land use does not conflict with the CUA [the California Compassionate Use Act] or the MMP, which do not expressly restrict local government’s authority over land use. As to implicit restrictions, we recognize the statutory provisions contain some ambiguities, but applicable legal principles require a clear indication of the Legislature’s intent to restrict local government’s inherent power to regulate land use. The ambiguous provisions fail to provide that clear indication. We therefore uphold the County’s ban on marijuana dispensaries, cultivation and storage of medical marijuana.37

    Notwithstanding this conclusion, however, the Kirby court did invalidate that provision in the county ordinance that criminalized all cultivation of medical marijuana, regardless of whether by a business or a qualified patient. Citing to a provision in the MMP providing immunity from prosecution for qualified patients who possess, cultivate, or store medical marijuana for personal use in amounts allowed under the MMP, the Kirby court held that, while not fully occupying all aspects of medical marijuana regulation, the MMP and its precursor CUA did “fully occupy the area of criminalization and decriminalization of activity directly related to marijuana,” as applied to personal use by patients.38

    That limited preemptive effect was emphasized in People v. Onesra Enterprises, Inc.39 Onesra Enterprises was a marijuana business that challenged Los Angeles’ Proposition D (“Prop D”),40 a provision approved by the city’s voters in 2013 prohibiting all medical marijuana businesses and allowing only those medical marijuana collectives that satisfied certain very restrictive conditions. Since the MMP provision relied upon in Kirby applied only to immunity for personal use and cultivation of medical marijuana, the Onesra Enterprises court concluded that the more general provisions discussed in Inland Empire left the local government with clear authority to ban businesses that engaged in medical marijuana operations, even those businesses operating as collectives for the benefit of qualified patients.41

    After the adoption of the MMP, California supplemented its regulation of medical marijuana through the adoption of the Medical Marijuana Regulation and Safety Act (“MMRSA”),42 which provides a system of state licensing for medical marijuana operations. In a challenge to Prop D brought by medical marijuana collectives and patients, Safe Life Caregivers v. City of Los Angeles, the California Second District Court of Appeal quickly dispensed with arguments that either MMRSA or the pre-existing statutes created a right to use or cultivate marijuana for medical uses.43 The court then pointed to provisions in the MMRSA that not only confirmed the continued authority of local jurisdictions in general to adopt zoning ordinances or other land use regulations relating to medical marijuana,44 but also expressly recognized the right of the City of Los Angeles to enforce Prop D.45

    Washington’s Supreme Court dealt with somewhat similar issues in Cannabis Action Coalition v. City of Kent.46 Washington’s medical marijuana statutes, the Medical Use of Cannabis Act (“MUCA”),47 includes a specific provision confirming local governments’ retained authority to regulate medical marijuana activities through zoning and other regulations.48 The City of Kent responded to MUCA by adopting an ordinance that banned cultivation sites operated by a collective of qualified patients (“collective gardens”) in all zoning districts. Participants in a collective garden challenged the ordinance, arguing that MUCA preempted the local ban, at least as applied to qualified patients.49

    The Washington court disagreed, pointing to the absence of any distinction in the MUCA between a local government’s authority to regulate commercial medical marijuana operations and its authority to regulate noncommercial operations. Citing to the statute’s use of the terms “ ‘production, processing, or dispensing’ of medical marijuana,” the court found that

    [b]ecause the legislature chose [sic] to use these capacious words without providing textual limitations to them, such as “commercial production” or “licensed production,” we give effect to the broad meaning of the words chosen. Someone growing medical marijuana in a collective garden “produc[es],” “process[es],” and “dispens[es]” … medical marijuana just the same as someone in a commercial operation does, albeit not to seek a profit but rather to grow, share, and use the marijuana within the small community of collective garden participants.50

    The court also pointed to a provision in MUCA that expressly prohibited local jurisdictions from banning licensed dispensaries within their jurisdictions, noting that the difference in the language used was presumably intentional and connoted a specific legislative intent to limit local regulatory authority for one type of medical marijuana operation while leaving such authority unfettered for others.51 Thus, the city’s ordinance was determined to be valid.

    B. Cases Holding That Local Authority to Ban Is Preempted

    The case law is not uniform, however. In Ter Beek v. City of Wyoming,52 one of the earliest reported cases dealing with the tension between state and local authority to regulate marijuana-related operations, a Michigan appellate court concluded that state’s medical marijuana statute preempted local jurisdictions from completely banning medical marijuana operations within their jurisdictions. First adopted in 2012, the Michigan Medical Marihuana Act (“MMMA”),53 permits the cultivation, possession, delivery, and use of marijuana by qualifying patients and expressly provides that persons who comply with the provisions in the MMMA regarding such activities are immune from “arrest, prosecution, or penalty in any manner …”54 The City of Wyoming responded by adopting a zoning ordinance banning all uses that were prohibited by federal law.55 Given the still-existing criminalization of marijuana under the federal Controlled Substances Act,56 the ordinance effectively banned all marijuana operations and use within the city’s boundaries.57 The Ter Beek court held the ordinance invalid, stating:

    The [state and local] provisions directly conflict because the ordinance … provides for punishment of qualified and registered medical-marijuana users in the form of fines and injunctive relief, which constitute penalties that the MMMA expressly prohibits.58

    Thus, the Michigan court rejected the test for conflict espoused by the California in Inland Empire — that the ability to refrain from the regulated conduct altogether was sufficient to avoid a direct conflict between a state statute and local ordinance. Instead, because the city’s ordinance prohibited conduct allowed by state statute, by imposing a penalty for a land use the MMMA made immune from punishment, the local ordinance was preempted.

    A similar result — albeit on a somewhat different theory — was reached by an Arizona appellate court in White Mountain Health Center, Inc. v. Maricopa County.59 The Arizona Medical Marijuana Act (“AMMA”)60 expressly authorized local governments to adopt “reasonable” zoning ordinances that limited medical marijuana businesses to certain areas.61 The Maricopa County ordinance purported to allow medical marijuana cultivation and other medical marijuana operations62 in a single industrial zone but imposed the further restriction — referred to by the court as a “poison pill provision”63 — that no use within that zone could be in conflict with federal, state, or local law. Since marijuana cultivation and possession remains a violation of federal law, the ordinance effectively banned all marijuana-related uses in the county, just as the City of Wyoming ordinance had in Ter Beek.

    The Arizona court characterized the issue as “whether the local jurisdiction can ban [medical marijuana operations] under the guise of ‘reasonable zoning.’ ”64 While the AMMA expressly permitted local government regulation of medical marijuana operations through zoning ordinances, the effective ban imposed by Maricopa County’s ordinance was found by the court to “nullify the basis for AMMA, [which was] to permit use of marijuana for medical purposes consistent with the AMMA[ ] …”65 The White Mountain court expressly declined to rely upon the California Supreme Court decision in Inland Empire, noting the Inland Empire court’s emphasis on the limited scope of the California MMP, as contrasted to the more “complex regulatory scheme” in place in Arizona.66 The Arizona court thus concluded that the poison pill provision in the county’s ordinance violated state law and was invalid.67

    While concluding that a challenged local ordinance was not in fact a ban on marijuana cultivation, the court in Diesel v. Jackson County68 suggested that Oregon local governments that do not follow the “optout” methods discussed above have no authority to adopt ordinances that have the practical effect of prohibiting marijuana land uses.69 Like the statute in place in Washington, the Oregon Medical Marijuana Act (“OMMA”)70 expressly preserves the authority of local governments to enact reasonable “time, place, and manner regulations” relating to medical marijuana, including “[r]easonable limitations on where a premises for which a license may be issued [for operations including marijuana cultivation] … may be located.”71 Jackson County adopted ordinances establishing where various medical marijuana operations could occur, including a provision prohibiting cultivation in areas zoned rural residential and rural, but allowing cultivation in areas zoned exclusive farm use, forest, and general or light industrial.72

    A county resident argued — among other things — that the ordinance was not a reasonable regulation because it effectively eliminated available growing sites in the county. While ruling against the petitioner due to a lack of factual predicate, the court cited to statements made during the legislatures deliberations on OMMA, indicating local governments

    “may not use their local zoning code to effectively eliminate marijuana businesses or growth sites in their communities by, for example, finding zones in which it is very difficult to site these businesses, or putting them on the edge of town where nobody wants to go, or in some other way making it so difficult for these businesses to be sited that the businesses won’t site in their communities.”73

    Based upon the facts presented, the Oregon court concluded that Jackson County’s zoning restrictions were not unreasonable, given both the petitioner’s concession that the land within the zones where marijuana cultivation was allowed was suitable for such use and the lack of evidence that inadequate land was available within those zones. However, the decision leaves open the prospect of a different result if sufficient evidence were presented that zoning limitations make marijuana cultivation so difficult that the activity becomes impractical and, therefore, effectively operate as a ban.

    IV. Statutorily-Imposed Land Use Restrictions

    While the adoption of land use restrictions on marijuana operations is largely left either to the state agency charged with implementing the state statute or to local government, many of state marijuana statutes do include some land use restrictions.74 Except in limited instances where the state statute specifically states otherwise, those restrictions establish minimum criteria that cannot be relaxed by local law. Depending upon how the statutory restriction is stated, it may also establish a regulatory ceiling, setting a standard that cannot be made more restrictive by local law. The Maine statute, in fact, specifically states that “[a] local government may not adopt an ordinance that is … more restrictive than the provisions of this Act.”75

    The most common statutorily-imposed restriction is a requirement that the facility within which marijuana cultivation occurs either be completely enclosed within a building or — if allowed to occur outside — be surrounded by a perimeter security fence. In some instances, these restrictions are coupled with the requirement that the cultivation operations not be visible to the public.76 Several state statutes also restrict the proximity of marijuana operations to schools, although the separation required varies significantly from state to state. For example, Illinois requires a 2,500-foot buffer between marijuana operations and schools already in existence when the marijuana operation seeks licensure,77 while Arizona requires only a 500-foot buffer.78 The state statutes also impose minimum buffers from several other types of facilities, including daycares and youth centers, public playgrounds or parks, public libraries, places of worship, public housing, public transit centers, and gaming arcades where youth gather.79

    Two states, California and Massachusetts, expressly allow local governments to adopt buffer restrictions that differ from those established by state law. California’s recreational marijuana statute requires that marijuana facilities be located farther than 600 feet from any K-12 school, daycare or youth center “unless a licensing authority or local jurisdiction specifies a different radius.”80 It is unclear whether this provision was intended to allow local jurisdictions to adopt less onerous buffer restrictions or simply to make explicit local authority to adopt ordinances increasing the minimum buffer.

    No such ambiguity appears in the Massachusetts referendum approving recreational marijuana operations. As adopted by the voters, the 500-foot minimum buffer between recreational marijuana facilities and a school applies “unless a city or town adopts an ordinance or bylaw that reduces the distance requirement …”81

    Four states limit the zoning districts in which marijuana facilities may be located. Illinois and New Hampshire prohibit marijuana facilities in residential zones,82 while leaving it to local governments to determine which other zoning districts are appropriate for such land uses. Michigan and Nevada enumerate the zoning districts where marijuana cultivation is allowable, with the former restricting that land use to areas either zoned industrial or agricultural or not zoned at all83 and the latter limiting medical marijuana cultivation facilities to commercial and industrial zones or overlays.84 Other statutorily-imposed land use restrictions include limitations on signage85 and the maximum size of the plant canopy.86

    V. Conclusion

    While only Florida expressly preempts all local regulation of marijuana cultivation, local authority to regulate marijuana cultivation differs significantly from state to state. Local governments faced with the prospect of marijuana cultivation operations within their boundaries must carefully consider both the express terms of their state’s marijuana laws, as wells as the degree to which those laws either fully occupy the regulatory field or limit local authority by establishing certain state-mandated land use restrictions.

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    1. ALASKA STAT. § 17.37.040(A)(4)(B) (2017); ARIZ. REV. STAT. ANN. § 36-2804 (2017); H.B. 1026, 91st Gen. Assemb., Reg. Sess. (Ark. 2017), http://www.arkleg.state.ar.us/assembly/2017/2017R/Bills/HB1026.pdf; CAL. BUS. & PROF. CODE §§ 19300-19355 (2017); COLO. REV. STAT. § 12-43.3-404 (2017); CONN. GEN. STAT. § 21A-408I (2017); DEL. CODE ANN. tit. 16, § 4919A(F) (2017); FLA. STAT. § 381. 986 (2017); HAW. REV. STAT. § 329D (2017); 410 ILL. COM. STAT. 130/1 (2017); ME. STATE. tit. 22, § 558-C (2017); MD. CODE ANN. HEALTH-GEN. § 13-33 (2017); MASS. GEN. LAWS ch. 94C, § 1-1 (2017); MICH. COMP. LAWS § 333.26424 (2017); MINN. STAT. §§ 152.22-152.37(2017); MONT. CODE ANN. § 50-46-308 (2017); NEV. REV. STATE. § 453A (2017); N.H. REV. STAT. ANN. § 126-X (2017); N.J. STAT. ANN. § 24-6I-7 (2017); N.M. STAT. ANN. § 7-34-4 (2017); N.Y. PUB. HEALTH LAW § 3360 (McKinney 2017); N.D. CENT. CODE § 19-24-08 (2017); OHIO REV. CODE ANN. § 3796.09 (West 2017); OR. REV. STAT. § 475b.065 (2017); 16 PA. CONS. STAT. § 702 (2017); 21 R.I. GEN. LAWS § 21-28.6-4 (2017); VT. STAT. ANN. tit. 18, § 86 (2017); WASH. REV. CODE. § 69.51A.005-.900 (2017).
    2. ALASKA STAT. § 17.38.030; CAL. BUS. & PROF. CODE §§ 26000-26202; COLO. CONST. art. XVIII, § 16; ME. STATE. tit. 7, § 2452; MASS. GEN. LAWS ch. 334, § 19; OR. REV. STAT. § 475B.335; WASH. REV. CODE. § 69.50; SECRETARY OF STATE, STATE OF NEVADA, STATEWIDE BALLOT QUESTIONS 2016 14, http://nvsos.gov/sos/home/showdocument?id=4434.
    3. MO. REV. STAT. § 261.265 (2017); S.C. CODE ANN. §§ 44-53-2010-44-53-2330 (2017); TEX. HEALTH & SAFETY CODE § 487 (West 2017). While some other states allow limited medical use of low THC cannabis, cultivation is either prohibited within the state or restricted to research programs being conducted in a university. E.g., OKLA. STAT. tit. 63, § 2-101 (2017) (prohibiting cultivation of cannabis in the state); ALA. CODE § 13A-12-214.2 (repealed effective July 1, 2019) (permitting cultivation only by the University of Birmingham Department of Neurology).
    4. COLO. CONST. art. XVIII, § 16(5).
    5. ALASKA STAT. § 17.38.210; VT. STAT. tit. 18, § 44741l. See also Ohio’s Right to Farm Act, OHIO REV. STAT. § 519.2, which expressly preserves the right of townships to prohibit medical marijuana cultivation in the unincorporated areas of the township.
    6. MICH. COMP. LAWS § 333.27205. As discussed below, under pre-existing law, a Michigan appellate court had held that local governments were preempted from banning medical marijuana facilities. See Ter Beek v. City of Wyoming, 823 N.W.2d 864 (Mich. Ct. App. 2012).
    7. CAL. BUS. & PROF. CODE § 26200(a).
    8. CAL. HEALTH & SAFETY CODE § 11362.2(b). Local governments have the option of prohibiting personal cultivation of marijuana outdoors unless and until such time as the California Attorney General determines that recreational marijuana use is lawful under federal law. Id.
    9. 2015 Or. Laws ch. 64.
    10. OR. REV. STAT. §§ 475b.320, 475B.325(1).
    11. OR. REV. STAT. §§ 475b.325, 475B.330.
    12. See LEAGUE OF OR. CITIES, LOCAL GOVERNMENT REGULATION OF MARIJUANA IN OREGON 5, 19 (4th ed. 2015), https://www.orcities.org/Portals/17/Library/2016LocalRegulationofMarijuanAinOregon12-09-16.pdf (describing Ballot Measure 91).
    13. 2015 Or. Laws ch. 64, § 133 (providing a similar exception for medical marijuana dispensaries).
    14. OR. LIQUOR CONTROL COMM’N, RECORD OF CITIES/COUNTIES PROHIBITING LICENSED RECREATIONAL MARIJUANA FACILITIES 1-3 (2017), https://www.oregon.gov/olcc/marijuana/Documents/Cities_Counties_RMJOptOut.pdf.
    15. DEL. CODE ANN. tit. 16, § 49A (2017).
    16. Id. § 4917A. See also 2016 Mass. Acts 334, § 5 (to be codified at MASS. GEN. LAWS ch. 94G, § 3(a)).
    17. TEX. HEALTH & SAFETY CODE ANN. § 487.201 (West 2017).
    18. HAW. REV. STAT. § 329D-22(a)(1) (2017) (emphasis added).
    19. 410 ILL. COMP. STAT. 130/140 (2017) (emphasis added).
    20. 35 PA. CONS. STAT. § 10231.2107 (2017).
    21. FLA. STAT. § 381.986(8)(a) (2017).
    22. “Medical marijuana treatment center” is the term used in the constitutional amendment adopted by Florida’s voters in November 2016 to define “an entity that acquires, cultivates, possesses, processes …, transfers, transports, sells, distributes, dispenses, or administers marijuana products …” See generally FLA. CONST. art. X, § 29(a)(5).
    23. OSCEOLA COUNTY, FLA., CODE OF ORDINANCES § 14-165 (2017); see also ALACHUA COUNTY, FLA., CODE OF ORDINANCES § 404.45 (2017) (limiting the facilities regulated to those that “dispense low-THC and medical cannabis”) (emphasis supplied).
    24. SARASOTA COUNTY, FLA., CODE OF ORDINANCES §§ 5.1.2, 5.3.1.7, 7.1.7(b) (2017).
    25. See City of Riverside v. Inland Empire Patients Health & Wellness Ctr., 300 P.3d 494, 499-500 (Cal. 2013).
    26. See Ter Beek v. City of Wyoming, 823 N.W.2d 864, 868 (Mich. Ct. App. 2012).
    27. Inland Empire, 300 P.3d at 500; see also Cannabis Action Coalition v. City of Kent, 351 P.3d 151, 154 (Wash. 2015) (preemption occurs “if the statute occupies the field, leaving no room for concurrent jurisdiction”); Ter Beek, 823 N.W.2d at 868 (preemption occurs “when the statute completely occupies the regulatory field”).
    28. See generally CAL. HEALTH & SAFETY CODE §§ 11362.7-11362.85 (West 2017). The California Compassionate Use Act (“CUA”), adopted in 1996 through voter referendum, only provided for the cultivation, possession, and use for personal medical use.
    29. Inland Empire, 300 P.3d at 497 (quoting CAL. HEALTH & SAFETY CODE § 11362.775).
    30. Id.
    31. See id. at 506.
    32. Id. at 506-07.
    33. See id. at 507.
    34. Id.
    35. In California, preemption of local regulations by a state statute is not presumed. Id. at 496 (with regard to local exercise of police powers “preemption by state law is not lightly presumed”). This same presumption exists in other states where local governments enjoy home rule powers. See, e.g., Rogue Valley Sewer Servs. v. City of Phoenix, 353 P.3d 581, 590 (Or. 2015) (“[a] party that challenges home-rule city’s authority as preempted by state law is required to show that the legislature ‘unambiguously’ expressed its intent”); Dubois Livestock v. Town of Arundel, 103 A.3d 556, 561 (Me. 2014) (“[l]ocal ordinances are presumptively valid”); Wallach v. Town of Dryden, 16 N.E.3d 1188, 1195 (N.Y. 2014) (“we do not lightly presume preemption where the preeminent power of a locality to regulate land use is at stake”); Hoffman Mining Co. v. Zoning Hearing Bd. of Adams Twp., 32 A.3d 587, 593 (Pa. 2011) (‘‘[t]he General Assembly must clearly evidence its intent to preempt’ ”);
    36. See generally, Kirby v. City of Fresno, 195 Cal. Rptr. 3d 815 (Cal. Ct. App. 2015).
    37. Id. at 820 (italics in original).
    38. Id. at 830.
    39. People v. Onesra Enters., Inc., 212 Cal. Rptr. 3d 860 (Cal. App. Dep’t Super. Ct. 2016).
    40. See generally, Safe Life Caregivers v. City of Los Angeles, 197 Cal. Rptr. 3d 524, 527-29 (Cal. Ct. App. 2016) (describing the series of city enactments that culminated in voter approval of Prop D).
    41. Onesra Enters., Inc., 212 Cal. Rptr. at 868.
    42. See generally, CAL. BUS. & PROF. CODE §§ 19300-19360 (West 2017).
    43. See Safe Life Caregivers, 197 Cal. Rptr. 3d at 538.
    44. CAL. BUS. & PROF. CODE § 19315(a).
    45. Id. § 19325(d); Safe Live Caregivers, 197 Cal. Rptr. 3d at 539.
    46. Cannabis Action Coalition v. City of Kent, 351 P.3d 151 (Wash. 2015).
    47. Medical Use of Cannabis Act, WASH. REV. CODE §§ 69.51A.005-69.51A.903 (2017).
    48. Id. § 69.51A.140.
    49. Cannabis Action Coalition, 351 P.3d at 154-55.
    50. Id. at 155-56 (citing to WASH. REV. CODE § 69.51A.140(1)) (emphasis added) (internal citations omitted).
    51. Id. at 156 (citing WASH. REV. STAT. § 69.51A.140(1)).
    52. Ter Beek v. City of Wyoming, 823 N.W.2d 864 (Mich. Ct. App. 2012).
    53. MICH. COMP. LAWS §§ 333.26421-333.26430 (2017). Michigan is the only state using the spelling “marihuana,” rather than “marijuana.” Id. § 333.26424. Michigan’s law was amended following the Ter Beek decision and now expressly preserves local government’s authority to determine whether marijuana facilities should be located to its jurisdiction. See supra note 14 and accompanying text.
    54. Ter Beek, 823 N.W.2d at 869 (quoting MICH. COMP. LAWS § 333.25424(a)).
    55. CITY OF WYOMING, MICH., CODE OF ORDINANCES § 90-66 (2017).
    56. 21 U.S.C. § 841(a)(1).
    57. Ter Beek, 823 N.W.2d at 865.
    58. Id. at 869. The court also found that the MMMA was not itself preempted by federal law, concluding that the state statute was not intended to grant immunity from federal prosecution and the federal law did not require that states criminalize marijuana. Id. at 873-74.
    59. White Mountain Health Ctr. v. Maricopa County, 386 P.3d 416, 435 (Ariz. Ct. App. 2016).
    60. Arizona Medical Marijuana Act, ARIZ. REV. STAT. ANN. §§ 36-2802 to 36-2819 (2017).
    61. Id. § 36-2804(B)(1)(d).
    62. “Medical marijuana dispensary” is defined in the AMMA to include operations involved in the full range of providing marijuana for medical use, including cultivation. Id. § 36-2801.11.
    63. White Mountain, 386 P.3d at 420.
    64. Id. at 435.
    65. Id.
    66. Id. at 436-37.
    67. Id. at 437.
    68. Diesel v. Jackson County, 391 P.3d 973, 978 (Or. Ct. App. 2017).
    69. See supra notes 10-14 and accompanying text.
    70. Control and Regulation of Marijuana Act, OR. REV. STAT. § 475B.005 (2017).
    71. Id. § 475B.340(g).
    72. Diesel, 391 P.3d at 980.
    73. Id. at 979 (quoting from legislative deliberations on the bill enacting the OMMA).
    74. The information provided here reflects only those land use restrictions imposed by state statutes. In some states, statewide administrative rules or regulations that include land use restrictions have been adopted—or are currently under consideration. E.g., ALASKA ADMIN. CODE tit. 3, § 306.010 (2017) (regulation establishing proximity restrictions); N.J. ADMIN. CODE § 64:8-10.4(a) (2017) (requiring that cultivation occur only in enclosed facilities); N.M. CODE R. § 7.34.4.8(E) (LexisNexis 2017) (prohibiting cultivation within 300 feet of schools, churches, and day cares).
    75. ME. STAT. tit. 22, § 2428(10) (2017).
    76. See ARIZ. REV. STAT. ANN. § 36-2804(B)(1)(b)(ii) (2017); FLA. STAT. § 381.986 (6)(a) (2017); HAW. REV. STAT.§ 329D-6(f ) (2017); 410 ILL. COMP. STAT. 130/105(f ) (2017); ME. STAT. tit. 22, § 2428.6 (2017); MINN. STAT. § 152.29(1) (2017); MONT. CODE ANN § 50-46-320(2) (2017); NEV. REV. STAT. § 453A.322 (2017); N.H. REV. STAT. ANN. § 126-X:8(XV) (2017); N.Y. PUB. HEALTH LAW § 3364(8) (McKinney 2017); N.D. CENT. CODE § 19-24-07(6)(c) (repealed 2017); 35 PA. CONS. STAT. § 10231.702 (2017); VT. STAT. ANN. tit. 18, § 4474d(c) (2017).
    77. 410 ILL. COMP. STAT. 130/105(c) (2017).
    78. ARIZ. REV. STAT. ANN. § 36-2804(B)(1)(b)(ii).
    79. See, e.g., CAL. BUS. & PROF. CODE § 26054(b) (West 2017) (schools, daycares & youth centers); HAW. REV. STAT. § 329D-22(a)(2) (schools, playgrounds, & public housing projects); 410 ILL. COMP. STAT. § 130/105(c) (schools & daycares); ME. STAT. tit. 22, § 2428.6 (schools); MASS. GEN. LAWS ch. 94G, § 5(b)(3) (West 2017) (schools); MINN. STAT. § 152.29(1)( j) (2017) (schools); NEV. REV. STAT. § 453A.322 (schools, public parks, daycares, playgrounds, public swimming pools, recreational facilities, & places of worship); N.D. CENT. CODE § 19-24-07(6)(c) (repealed 2017) (schools); OHIO REV. CODE ANN. §§ 3796.09(B)(4), 3796.30 (West 2017) (schools, churches, libraries, playgrounds, & parks); VT. STAT. ANN. tit. 18, § 4474e(c) (schools and daycares); WASH. REV. CODE § 69.51A.250 (2017) (schools, playgrounds, recreation facilities, daycares, gaming arcades, public parks, & libraries).
    80. CAL. BUS. & PROF. CODE § 26054(b).
    81. MASS. GEN. LAWS ch. 94G, § 5(b)(3) (emphasis added).
    82. 410 ILL. COMP. STAT. 130/105(c) (2017); N.H. REV. STAT. ANN. § 126-X:8(II).
    83. MICH. COMP. LAWS § 333.27501(7) (2017).
    84. NEV. REV. STAT. § 453A.350(1)(a).
    85. HAW. REV. STAT. § 329D-6(o)(2) (no larger than 1600 square inches); MINN. STAT. § 152.29(1)(k) (signs must comply with state-enacted regulations); NEV. REV. STAT. § 453A.350(1)(d) (consistent with pharmacy and medical office signage).
    86. ME. STAT. tit. 7, § 2447(6).