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.
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.