By Brian J. Skinner, Esq.
This article provides an overview of the land use related statutes regulating medical cannabis businesses.
Counties in West Virginia may prohibit medical cannabis businesses by passing an ordinance by vote of the residents of the county to prohibit the operation or location of a medical cannabis organization within the county. A prohibition on the operation or location of a medical cannabis organization remains in effect unless and until changed by a subsequent vote.
Cities and towns in West Virginia can designate appropriate zones for state-permitted medical cannabis businesses because West Virginia local governments have authority to enact ordinances regulating land uses within their jurisdictions. However, growers and processor must meet the same municipal zoning and land use requirements as other manufacturing, processing and production facilities that are located in the same zoning district. Dispensary must meet the same municipal zoning and land use requirements as other commercial facilities that are located in the same zoning district.
A municipality may enact an ordinance prohibiting or limiting the number and type of medical cannabis organizations permitted to operate in the municipality, including the time, place, and manner of operation. However, it is the West Virginia Office of Medical Cannabis (OMC) that has final authority over whether to grant or deny the permit to operate in the state.
Additionally, local boards of health must approve the location of a medical cannabis organization before it may receive a permit by the OMC.
Minimum Buffer Distance and Site Restrictions
West Virginia law requires that a permitted dispensary may only dispense medical cannabis to a patient or caregiver in an indoor, enclosed, secure facility as approved by the OMC. Permitted dispensaries must be located at least 1,000 feet from a public, private or parochial school, or a day-care center. Additionally, a permitted dispensary may not be located at the same site used for growing and processing medical cannabis or in the same office space as a medical practitioner.
The 1,000 feet buffer distance must be measured from the front door of the dispensary to the property line of the school or day-care center along the edge of a street or the center of a sidewalk in a path that a pedestrian may legally traverse. Examples include:
• The use of a cross walk at a stop light;
• The use of an established walkway;
• If there is no cross walk in a rural area, the measurement must be taken along the highway at 90% angles; and
• Only horizontal planes will be measured.
The OMC may waive or amend the 1000-foot prohibition if it is shown by clear and convincing evidence that the waiver or amendment is necessary to provide patients with adequate access to medical cannabis. A waiver or amendment by the OMC may require additional security measures, changes to the physical plant of a facility or other conditions necessary to protect individuals under 18 years of age and to prevent unauthorized access to medical cannabis.
Brian J. Skinner is the former General Counsel to the West Virginia Bureau for Public Health. He assisted the bureau in establishing the Office of Medical Cannabis upon enactment of the West Virginia Medical Cannabis Act by drafting procedures and legislative rules.
This article contains general legal information and does not contain legal advice. H2C Public Policy Strategists, LLC is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.