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.