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November 18, 2016
Local Planning for Recreational Marijuana
Following the passage of Ballot Question #4 earlier this month, towns and cities are starting to grapple with the legalization of recreational marijuana.
                                   
Relevant Dates:
 
The new law, officially titled the "Regulation and Taxation of Marijuana Act,"provides that the use, home cultivation, possession and purchase - but not the sale - of marijuana will be legal on December 15, 2016.  With respect to marijuana establishments (retailer, cultivator, testing facility, and product manufacturer), the state Cannabis Control Commission (yet to be established) must start accepting license applications by October 1, 2017.  Licenses may issue on or after January 1, 2018, or earlier to "experienced" applicants (e.g., medical marijuana treatment centers with existing or provisional registrations).
 
Towns and cities may want to have bylaws and ordinances pertaining to marijuana establishments in place before October 1, 2017.  When considering a marijuana establishment application, the Cannabis Control Commission shall grant the license if, among other criteria:
 
"the commission is not notified by the city or town in which the proposed marijuana establishment will be located that the proposed marijuana establishment is not in compliance with an ordinance or by-law consistent with section 3 of this chapter and in effect at the time of application;" (emphasis added).
 
Local Restrictions:
 
With respect to local bylaws and ordinances, the Marijuana Act gives towns and cities limited control over recreational marijuana within their borders, but it is unclear how far municipalities may go in regulating - or even prohibiting - retail sales and other recreational marijuana uses.
 
Under the Marijuana Act, bylaws and ordinances may impose "reasonable safeguards" on marijuana establishments, provided that the local laws are not "unreasonably impracticable" to the operation of a marijuana establishment.  Local bylaws and ordinances may:

  • Govern the time, place and manner of marijuana establishment operations;
  • Limit the number or types of marijuana establishments;
  • Regulate licensed cultivation that poses a public nuisance;
  • Impose reasonable regulations on public signs for marijuana establishments; and
  • Establish civil penalties for violations.
 
Local zoning may not prohibit a marijuana establishment "in any area in which a medical marijuana treatment center is registered to engage in the same type of activity."  This provision raises several questions.  Is a zoning district off limits to recreational marijuana establishments if it allows medical marijuana treatment centers but currently has no registered facilities? How would a treatment center operating as a grandfathered use impact recreational establishments to be located in the same area?
 
In addition, municipalities may not prohibit the transportation of marijuana or marijuana products within their borders.
 
Zoning Moratoria:
 
Towns and cities might consider adopting a zoning moratorium to temporarily prohibit marijuana establishments.  Massachusetts courts have upheld moratoria to allow time for a community to engage in planning for a new use.  Many communities adopted temporary moratoria for medical marijuana facilities a few years ago.
 
Local Referendum:
 
The Marijuana Act allows for a local ballot question at a state election regarding the consumption of marijuana within a marijuana establishment. Please note: the ballot question does not pertain to the sale of marijuana, but the sale for consumption on the premises. In other words, voters may prohibit marijuana "bars," but not marijuana "package stores."
 
Local Sales Tax:
 
Municipalities may adopt a local sales tax of up to 2% on marijuana sales. The revenue will be collected by the state and issued to towns and cities on a quarterly basis.

State Regulations; Sales in Medical Marijuana Facilities:
 
Once formed, the Cannabis Control Commission must adopt regulations implementing the Marijuana Act by September 15, 2017.  Missing this deadline may have significant consequences for municipalities with existing medical marijuana facilities.
 
If the regulations are not in place by January 1, 2018, the Marijuana Act provides that existing medical marijuana treatment centers may immediately "deliver, sell or otherwise transfer marijuana to any person who is at least 21 years of age until the commission adopts the regulations... and begins to issue licenses to operate marijuana establishments..."
 
Next Steps:

Legislators and other state officials have suggested that changes may be coming to the Marijuana Act.  Mirick O'Connell will continue to monitor developments and provide additional updates on this issue to our public sector clients. 


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This client alert is intended to inform you of developments in the law and to provide information of general interest.  It is not intended to constitute legal advice regarding a client's specific legal issues and should not be relied upon as such.  This client alert may be considered advertising under the rules of the Massachusetts Supreme Judicial Court.