Don't call it "Recreational"

This is about insidious nomenclature.  Some history:

Marijuana’s proper botanical name is cannabis. Generations ago, criminalization was facilitated by associating the plant with Mexican immigrants, by adopting their slang, marihuana.  

After medical marijuana took root in California in 1996 (RIP Dennis Peron), a rhetorical vacuum appeared. A term was needed to distinguish medical marijuana from non-medical, and “recreational marijuana” appeared.  Since then, I have winced at its growing use in the media and among policymakers, and admired its avoidance by people such as Steve D’Angelo, who urges the term, “full adult” marijuana.

The basis for my objection is that the term, like marijuana itself, is a slur, a term of denigration.

It denigrates marijuana consumers by declaring all non-medical marijuana use “recreational,” implying that they use it only for fun, when the truth is far different. 

We know.  We’ve heard parents and adult children describe how it brought them together, after years of alienation.  We all know people like writers and artists who use it vocationally, to stimulate their imagination. Some,  it helps overcome procrastination.

Carl Sagan, the astronomer, famously asked, “What’s wrong with using a drug that produces serenity, insight, sensitivity and fellowship,  qualities so desperately needed in this mad and dangerous world?”

Nothing there about recreation.  And recreation is hardly something we need more of. 

Legalization isn't about hedonism; it's about not arresting people.

The word "recreational" does not appear in the law enacted by the voters in 2016, nor as revised by the legislature in 2017, nor in the CCC draft regulations.  It belongs in no town bylaw.

By the end of 2018, as supervision of the medical marijuana program is merged into the CCC,  the distinction between medical and non-medical marijuana will fade as a regulatory matter.  For several more years, there will be separate cash registers in the dispensaries opening their doors to all adults, as card-carrying patients won’t have to pay sales taxes. Soon, however, the hassle and expense of maintaining a card will exceed the expense.

For now, the best term for non-medical marijuana is “marijuana.” One slur is enough.

Isn't commercial marijuana cultivation "agriculture"?

The question is coming up in town halls where volunteer committees are pondering if and how to accommodate commercial marijuana operations, and among entrepreneur teams seeking accommodating towns.

The short answer is “Of course, but not legally.”

Let me explain:

For many years, commercial agricultural operations have been exempt from zoning laws under Section 3 of Chapter 40A, the zoning enabling act. After the voters said Yes to legalization in November of 2016, the legislature, in a last minute/dark of night maneuver, slipped an amendment into the statute, namely,

… provided, however, that the term agriculture ... shall not include the growing, cultivation, distribution or dispensation of marijuana [...].

The effect of this amendment was to deny commercial marijuana cultivators the rights accorded to commercial cultivators of other crops.  Calling your operation “agriculture” no longer gained you any protection from the application and enforcement of zoning laws.

In 2017, the legislature re-wrote the law enacted by the voters,  inserting this provision:

and provided further, that nothing in this section shall preclude a municipality from establishing zoning by-laws or ordinances which allow commercial marijuana growing and cultivation on land used for commercial agriculture [...]. 

Huh? That seems to add nothing of legal substance, as municipalities have always had the right to enact zoning by laws “allowing” nearly anything, and Section 3 of Chapter 94G explicitly gives municipalities the right to enact bylaws governing the “place” of marijuana operations.   One suspects it was inserted for the appearance of conferring greater authority for cities and towns to regulate commercial marijuana operations.

Bottom line:  For purposes of zoning, the growing and harvesting of marijuana is not agriculture. By any other measure, it is.  The conflict here is between the legal definition of agriculture and the definition of agriculture. 

My suggestion?

Avoid the word “agriculture” altogether.  Instead, describe the land use as “commercial marijuana cultivation.”  (Our suggested form of zoning bylaw distinguishes between cultivation in enclosed buildings, greenhouses and outdoors.)

This A word may as well be scarlet.



The Governor Weighs In

Today's Boston Globe reports that the governor's office has sent a 9-page letter to the CCC, thoroughly critiquing the CCC's proposed regulations.

To the extent that the letter points out gaps and inconsistencies in the draft reqs, the critique is welcome. To the extent that it questions opportunities in the draft regulations for small start-ups, including delivery-only services, cannabis cafes and other social consumption establishments, it is a cause for serious concern.

Prospective social consumption and delivery-only licensees need to push back. The CCC will accept comments on the draft regulations until February 15;  final regulations are expected by March 15.




"Options for Municipalities" Posted

In response to numerous inquiries from public officials, we have posted a guidance titled "Options for Municipalities. It contains a discussion of zoning options available to cities and towns, a sample zoning bylaw, a specimen Community Host Agreement, a resolution for acceptance of revenue, and an updated FAQ. 

We note that in recent days, similar guidances have been posted by K-P Law and Weedmaps.


Municipalities: Is Doing Nothing Underrated?

The reaction to legalization among cities and towns in western Massachusetts, been myriad. Wilbraham passed a permanent ban on licensed marijuana establishments altogether.  Agawam, Hadley, and others have enacted moratoria, meaning that no marijuana establishment may operate, and no applications for local approval, will be accepted before a certain date, typically in 2019. Other municipalities are moving with dispatch to have their local laws in place in anticipation of a wave of applications in the spring (Amherst,  Northampton,  Easthampton, Holyoke).

Others are doing nothing.  Is that wise?

Since Governor Baker signed the legalization law as re-written by the legislature last summer, our advice to cities and towns has been to get off their municipal duff and enact laws to “govern the time, place and manner of marijuana establishments,” as the law allows, if they wish to exercise control over marijuana establishments specifically—i.e., different from retail, industrial or agricultural activities. In our book and elsewhere, we have pointed out that they have the right, but not the obligation, to enact local laws specifically about marijuana, and that any marijuana operation proposed by an applicant to the CCC must be in compliance with local law at the time of application. Thus if a city or town wished to specially govern the time, place and manner of marijuana establishments, its bylaws need to be in place by April 1, 2018, when the CCC is expected to begin accepting applications for licensure.

Cities and towns that enact no bylaws are left in this position:

1. Their zoning laws apply fully to marijuana operations. That is, if somebody wanted to open a marijuana product manufacture license, she would need the same approval, under existing zoning, as if she were opening a widget factory, typically a special permit and/or site plan approval from the planning board or zoning board of appeals, a familiar process involving formal notice, a public hearing with the opportunity of all to be heard, and an appeal period  before any decision is final, during which any aggrieved person with standing can challenge the decision as beyond the authority of the board.

2. No marijuana establishment could operate unless it entered into a written “community host agreement” with the municipality. Unlike a special permit or site plan approval, a host agreement would be signed by the municipality’s executive officer(s)—selectboard, mayor, city manager--"setting forth," in the language of the law signed by the governor,

the conditions to have a marijuana establishment or medical marijuana treatment center located within the host community which shall include, but not be limited to, all stipulations of responsibilities between the host community and the marijuana establishment[.]

3. As part of the community host agreement, the municipality may exact a “community impact fee,” but with a few provisos:

*             The community impact fee must be “reasonably related to the costs imposed upon the municipality by the operation of the marijuana establishment;"

*              It shall be reasonably related to the costs imposed upon the municipality by the operation of the marijuana establishment or medical marijuana treatment center; and

*             It shall not amount to more than 3 per cent of the gross sales of the marijuana establishment or medical marijuana treatment center or be effective for longer than 5 years.

Wisely, the legislature imposed protections against unreasonable or excessive exaction by requiring “any cost to a city or town imposed by the operation of a marijuana establishment” to be documented.

Whether a municipality is doing the wise thing by enacting no new law turns, in our view, on a factual, not a legal, question. That factual question is whether there is anything about licensed marijuana businesses that require them to be treated, under local zoning laws, differently than other businesses. To put it another way, what is it about marijuana that requires separate local rules? What actual threat does the prospect of a commercial marijuana operation pose to the public health or safety, or the character of the community that the existing special permit/site plan approval process cannot adequately address?

If such a threat can be identified, then additional local regulations are justified. If not, a year from now cities and towns who relied on existing zoning processes and signed a host agreement will be reaping the economic and other benefits of new local commerce while others ask “What was the fuss all about?”

The challenge to municipal officials today is to justify the fuss by identifying those threats.



The Sessions Kerfuffle

On January 4, 2018, Attorney General Jefferson Beauregard Sessions rescinded the Cole Memorandum, under which federal prosecutors refrained from interfering with state-compliant commercial marijuana operations. 

The response has been heartening to cannabis commerce entrepreneurs.. No elected public official, state or federal, in Massachusetts or in any other state--and no Republican--has issued a statement of support. Better yet, our  elected leaders in Massachusetts, despite their opposition to legalization in 2016,  have renounced the action as threatening to jeopardize a smooth rollout of legalization. Better than reform advocates could ever have done, the AG has brought legalization powerful new friends and marooned him and his boss, the president, on the diminishing island of prohibition in a rising sea of tolerance. 

It's curious that much of the public chatter has focused on the U.S. Attorney in Massachusetts, Mr. Lelling, but none on the role of congress. Lelling cannot repeal federal prohibition, but Congress can.  If legalization enjoys support from a majority of Democrats, Independents and Republicans, what's the political gain in keeping marijuana in the federal controlled substances act in the first place? Who is the prohibition constituency?


CCC releases "Guidance for Municipalities"

In recent days the CCC has promulgated a document titled "Guidance for Municipalities Regarding Marijuana for Adult Use."   It is mostly a repeat of the statute and draft regs, but aimed at the municipal audience and worth a close read by prospective applicants. 

"During the application process," the Guidance instructs, "applicants will be required to demonstrate that they have held a community outreach meeting within the past six months, that they have executed a Host Community Agreement with the municipality and that their proposed location is compliant with zoning bylaws or ordinances at the time of the application."

"During the application process" appears to be at odds with the draft regs, which say that documentation verifying the "community outreach meeting" is to be filed as part of the application itself, i.e., upon commencement of the application process, not "during." 

Similarly, the application will require "[d]ocumentation in the form of a single-page certification signed by the contracting authorities for the municipality and the applicant evidencing that that applicant for licensure and host municipality ... have executed a host a community agreement."

As for documentation of compliance, this demand could be a serious problem for some applicants, especially where a city or town has adopted no special marijuana-related bylaws and the applicant's proposed operation is allowable as a matter of right without special zoning approval (for example, a retail shop in a retail zone, or a cultivation operation in an agricultural zone).  With no local laws prohibiting, curbing, or otherwise governing marijuana operations, what municipal official can be expected to certify that such an operation is in compliance with local law, even though it is entirely?  

The CCC has gone overboard with requiring a town official to certify that a proposed use, not yet constructed, compies with local zoning laws. The statute clearly imposes on the municipality the obligation to notify the CCC--and thus thwart an application--if the applicant's proposal does not comply with local zoning. That is reasonable. The draft regs, however, turn that around, and impose on the applicant the burden to find someone in city hall to certify that his proposal does comply with local law.  Good luck finding someone.

Bottom line:  Under the draft regs, before an application is delivered to the CCC, the applicant must have satisfied these three requirements: the Community Outreach Meeting, the Host Agreement, and “certification from the municipality in which the Marijuana Establishment will be located” that the licensed operation complies with local zoning.  Hopefully, they will receive much scrutiny during the public comment period next month, and the final regs, to be issued by March 15, will revise them substantially.





CCC Announces Public Hearings on Draft Regulations

The Cannabis Control Commission has announced public hearing dates and times to receive public comments on the draft regulations issued in late December. Western Massachusetts hearings are scheduled as follows:

Pittsfield:  Monday, February 5, 8:30-11:00 AM, Berkshire Community College

Holyoke: Monday, February 5, 2:00-5:00 PM, Holyoke Community College

Greenfield: Tuesday, February 6, 10:00-1:00 PM, Franklin Regional Council of Governments.

It is extremely important—and a rare opportunity-- that individuals having an interest in how the rules are written attend and participate in the hearings.  Review the instructions in the CCC announcement about testifying and submitting your testimony.

CCC Issues Draft Regulations

On December 15, 2017, the Massachusetts Cannabis Control Commission issued draft regulations for the licensing and operation of non-medical marijuana establishments. 


·         Eight types of marijuana operations will be licensed: Cultivator (4 tiers), Craft Co-Op, Product Manufacturer; Retailer (storefront; delivery-only; social consumption); Research Facility, Independent Testing Laboratory, Transporter, Microbusiness, and Registered Marijuana Dispensary (medical).

·         The application and license fees are extremely reasonable, and there are no minimum capital requirements.

·         Many licensing opportunities exist for small operators.

·         Host Agreements are to be worked out with the city or town before applications are filed on or after April 1, 2018

.·         Applicants for retail licenses will be required to show the source of product they intend to sell.

The CCC will have hearings in early February for public feedback.  If you have suggestions for tweaks to these regs, please plan to participate in that process; let the CCC hear your suggestions how to make the regulations better.

Voters who supported the Question 4 ballot question a year ago, and aspiring licensees, have reason to be satisfied—so far--with the details of legalization as they come into focus. Although the legislature made major changes to the voter-enacted law, it respected the will of the voters in at least three important ways: The new law (1) protects consumers from punishment for pot, it (2) it sets up a reasonably-structured system of regulation and taxation, creating a safe market for producers, distributors and consumers, and (3) it provides opportunities for participation in this new industry for fellow citizens who have been disproportionately victimized by the enforcement of the marijuana prohibition laws. Although no historian will dispute the fact that marijuana had its origin in racism, a stunningly remarkable feature of the new law is that it expressly acknowledges that shameful realty. To the extent that a statute is the collective determinant of the people, the people—directly in 2016 and through their elected representatives in 2017, renounced that injustice, and took account for it, in a sense, in novel ways in the new law.

More about that next time. Meanwhile go to the CCC’s website and read the regulations. Ponder.
Read again. Help tweak them.

What Cities and Towns Need to Know About Legalization

There’s confusion among municipal officials as to what they, and the municipalities they represent, must do and what they may do in anticipation of cannabis commerce within their borders. These five points would, I think, clear up much of the confusion.


1. What’s on their plate. Cities and towns have the right, but not the duty, to enact laws governing the time, place and manner of marijuana establishment operations within their borders.  This includes limiting the number of licenses to be made available, and banning them altogether.  In those municipalities that voted Yes on Question 4 last November, a total ban can only be enacted by the voters. In those that voted No, the ban may be enacted by the local legislative body. Restrictions imposed before July 1, 2017, remain in effect. 

Municipalities that are inclined to enact local laws are advised to move with dispatch, so as to ensure that their laws are in effect on April 1, 2018, when the CCC begins receiving applications.  With everything else in order, the CCC will grant a license unless it has been notified by the municipality that the applicant’s proposed operation does not conform to local law in effect as of the date of application.  It is therefore in the interest of municipalities that their bylaws and ordinances , if any, be in effect as of April 1, 2018.

2. Doing nothing. Taking no formal action (besides accepting the revenue), puts municipalities in a situation where cultivation, product manufacture and retail operations will be regulated under  

            (a) the rules being developed by the CCC, under the statutory mandate of Section 3(a ½) of Ch. 94G, which gives a strong clue of what the rules will cover and in what depth; AND

            (b) existing local laws, mostly zoning, but also public health/food prep/service and other such laws.

This means that someone wanting to open a marijuana product manufacturing plant would be required to comply with existing laws relating to the siting and operation of a manufacturing plant, whatever the product. Typically that requires a zoning review for matters like lighting, parking, odors, etc. Similarly, a retail marijuana establishment could be located only in a retail district, and with all local permits or licenses required for other retail stores.

3.  Social consumption.  Obviously the CCC cannot say at this time whether the regulations will include any provisions relating to licenses for social consumption, i.e., retail licenses allowing the consumption of marijuana on the premises where sold.  However, because municipalities have the power to govern “time, place and manner” of retail establishments, it is within their province to determine whether social (commercial) consumption may legally occur within their borders, assuming CCC regulations allow them. An application proposing an operation that does not conform to local law will not be approved.

4. Moratoriums. Under a decision of the SJC, a municipality may “impose reasonable time limitations on development, at least where those restrictions are temporary and adopted to provide controlled development while the municipality engages in comprehensive planning studies.”[1]  In 2002, the Appeals Court upheld a moratorium “to enable study, reflection and decision on a subject matter of …  complexity […].”[2]   It is incumbent on munipalities to establish that “comprehensive planning studies” are required due to the “complexity” of the subject matter, a determination that can only be made at the local level.

5. Revenue.  Formally accepting the right to impose a local sales tax does not obligate the municipality to allow marijuana establishments.


[1] Sturges v. Chilmark, 380 Mass. 246, 252-253 (1980).

[2] W.R. Grace v. Cambridge City Council, 56 Mass. App. Ct. 559, 569 (2002).