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).