How a St. Charles zoning code technicality contradicts marijuana sales

With St. Charles on the cusp of allowing recreational marijuana sales, city officials are aiming to fix a discrepancy in the zoning code that would block their approval of specific dispensing operations.

To be granted a special use in the city, applicants are required to meet six findings of fact, one of which states the business or operation must conform to all local, state and federal legislation, said Rita Tungare, community and economic development director.

Recreational cannabis shops would not adhere to that stipulation.

The issue lies in the fact that marijuana use and sales are federal offenses, despite passage of a state law legalizing possession and consumption for Illinois residents 21 and older starting Jan. 1.

A proposal is on the table in St. Charles to allow up to two recreational dispensaries in town, with several limitations, when the Cannabis Regulation and Tax Act takes effect. But with its special use procedure written as is, the city could not approve any cannabis retailer's application to begin operating.

The planning and development committee voted 7-2 Monday to begin the process of updating the findings of fact and removing the reference to federal law. The proposed code change will go to a public hearing next month.

The discrepancy was brought to the city's attention last week during a plan commission meeting, where the advisory panel recommended a set of special use regulations for recreational marijuana shops. Chairman Todd Wallace was one of two members to vote against the suggested zoning change, saying any cannabis retailer that submits an application to the city "basically runs into a brick wall."

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"I don't see at this point in time how the plan commission would be legally able to recommend approval to the city council," he said, "because like it or not, there's a conflict between ... the state and federal laws on this issue."

Under state statute, the city is not obligated to consider federal law in its special use finding of facts, Tungare said, noting it's unclear why the requirement was added to the city code in 2006. In a review of several other municipalities, she said, staff members found Batavia was the only other town to include such a provision in its zoning ordinance.

"At this point, what I would recommend is that it might be advisable to remove this finding of fact from the city code, as the city cannot ensure compliance with all federal law as part of any special use application," Tungare told aldermen Monday. "It is just too generic and broad in nature."

The city's code also is unique in requiring compliance with all six findings of fact in order for a special use application to move forward, she said.

Alderman Ron Silkaitis said he's not comfortable approving any operation that goes against federal law. He and Alderman Maureen Lewis voted against initiating the approval process for the zoning amendment on finding of facts.

Per a motion made by Alderman William Turner, a public hearing will be held during the plan commission's first meeting in November. The measure will go before the planning and development committee, then the city council for final approval, in December.

Meanwhile, the city council is also set to vote on creating a special use for recreational cannabis dispensing at an upcoming meeting. The proposal, which received a 6-3 vote at the committee level, would permit no more than two cannabis retailers in town, one on either side of the Fox River.

Other regulations include limiting dispensaries to the regional business and community business zoning districts; requiring a 250-foot buffer from the property lines of schools, day cares and single-family residences; and ensuring one of the shops' operators has one year of experience running a medical marijuana facility in St. Charles, with the other needing to have operated a medical dispensary in the state for the same amount of time. On-site consumption lounges, cultivation centers and other related businesses would not be permitted.

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