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20 Nov

Stone(d) Walled: Cannabis Production and Municipal Zoning By-Laws

Tuesday, November 20, 2018Jonathan James NehmetallahLitigation, Municipal LawMarijuana, Cannabis Laws

Now that the production and sale of cannabis is legal, individuals and corporations should pay close attention to zoning by-laws within their respective municipality when determining where to place their cannabis retail or production facility. 

Municipalities have authority over land use regulation and can prohibit specific land use through zoning by-laws. As the number of cannabis production facilities are expected to increase, municipalities are now trying to find ways these may fit into the existing framework. 

In a recent case, Tay (Township) v. Fan (2018), an interlocutory injunction was granted against the respondents who were growing about 800 medical cannabis plants in their home. While the Township of Tay permits the growing of medical cannabis in General Industrial (M1) land zones, the respondents’ home is located in a different zoning area (Village Commercial (C1)). 

The Township argued that the respondents were operating as a “processing plant” (a permitted use only in the M1 zone), and thereby sought an interlocutory injunction to cease the respondents’ production activities. 

After expressing concern about the potential to undermine the municipality’s authority and ability to regulate land usage through zoning by-laws, the Judge agreed to grant the injunction requiring the respondents to cease growing, cultivating, processing or otherwise producing medical cannabis plants in their residence.

It is important to note that these issues are dealt with on a case-by-case basis as every township regulates their land use differently. However, with the ongoing legalization of cannabis, these issues are more likely to become prevalent. 

With the introduction of retail cannabis storefronts coming to Ontario in 2019, those hoping to set up a retail storefront should be cautious with respect to municipal zoning by-laws and permitted uses.

Although it is possible to amend a zoning by-law, the process is somewhat lengthy and there is no guarantee of the desired outcome. Thus, individuals and corporations should engage in extensive due diligence efforts when deciding where to locate their cannabis production facilities to ensure that they are not in violation of a zoning by-law, or, in the alternative, contact our Municipal and Land-Use Development team at Gardiner Roberts LLP which is experienced in seeking zoning by-law amendments.

Jonathan Nehmetallah and  Christine Jubian

 

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