As the United States Supreme Court recognized, "[t]he power of
local governments to zone and control land use is undoubtedly broad
and its proper exercise is an essential aspect of achieving a
satisfactory quality of life in both urban and rural communities."
Schad v. Borough v. Mt. Ephraim, 452 U.S. 61, 68 (1981).
Yet, Chapter 334 of the Acts of 2016 - entitled "The Regulation and
Taxation of Marijuana Act," or commonly recognized as Ballot
Question 4 from the recent 2016 election (and, for simplicity, is
referred to as the act) - has the potential to sharply restrict
local land use concerns, even as municipalities confront the hazy
dilemmas emanating from creating a new "vice" industry in the
commonwealth.
Over the past nine years, Massachusetts municipalities have
faced a landscape of deregulation of the possession of marijuana
within their borders, following a series of statewide ballot
questions. First, at the 2008 election, Massachusetts voters
approved a ballot question replacing criminal penalties with civil
penalties for the possession of one ounce or less of marijuana.
Then, four years later, at the 2012 election, Massachusetts voters
approved a ballot question approving the medical use of marijuana,
resulting in the licensing and establishment of registered
marijuana dispensaries (also known as medical marijuana treatment
centers, or RMDs).
Finally, at the 2016 election, Massachusetts voters went one
step further, to allow for the production, distribution and use of
marijuana for non-medical purposes. The act addresses local
regulation, in part, through new Massachusetts General Laws Chapter
94G, Section 3, entitled "Local control." However, the consequences
of the act are to potentially curtail the ability to locally
regulate "marijuana establishments" - unless action is undertaken
by the Legislature or the forthcoming Cannabis Control
Commission.
It should be noted, however, that the act only deals with the
legality of marijuana under state law. Marijuana remains a Schedule
I drug, and possession is therefore prohibited under the federal
Controlled Substances Act.
Local Land Use Considerations
The act is premised upon "a system that licenses, regulates and
taxes the businesses involved in a manner similar to alcohol and to
make marijuana legal for adults 21 years of age or older." See Act
§ 1. However, unlike establishments producing, processing or
selling alcohol, Massachusetts General Laws Chapter 94G, Section 3
expressly restricts local regulation of the siting of "marijuana
establishments," a term collectively referring to: (1) marijuana
cultivators; (2) marijuana testing facilities; (3) marijuana
product manufacturers; (4) marijuana retailers; and (5) other
licensed marijuana-related businesses.
The act expressly allows municipalities to regulate the "time,
place and manner" of marijuana establishments and business involved
with marijuana accessories. See G.L.c. 94G, § 3(a)(1). A
"time, place and manner" is the type of regulation applicable to
constitutionally-protected activities, such as adult entertainment.
Examples of "time, place and manner" regulations include
restricting the hours of operation of a business or limiting the
location of a business to a specified area. See, e.g. Nat'l
Amusements, Inc. v. Town of Dedham, aff'd, 43 F.3d 731 (1st
Cir. 1995) (regulating hours of operation); City of Renton v.
Playtime, Theatres, Inc., 475 U.S. 41 (1986) (regulating
locations).
The act also allows a municipality to: regulate licensed
cultivation, processing and manufacturing that constitute a "public
nuisance;" reasonably regulate public signage for marijuana
establishments; and adopt a civil penalty if a person violates an
ordinance or bylaw that is comparable to the penalty for violating
an ordinance or by-law involving alcohol. See G.L.c. 94G,
§ 3(a)(3)-(5). However, municipal regulations cannot be
"unreasonably impracticable," and cannot violate G.L.c. 94G (the
chapter added by the act) or future regulations adopted by the
commission.
However, there are two caveats to regulating the siting of
marijuana establishments - as opposing to prohibiting or
restricting such establishments in number, which are discussed
below. First, the act requires parity between RMDs (which exist for
the medical use of marijuana) and marijuana establishments.
See G.L.c. 94G, § 3(a)(1). In that regard, marijuana
establishments that cultivate, manufacture or sell marijuana or
marijuana products must be allowed in the same areas where RMDs can
conduct such activities. See id. Consequently,
municipalities that already enacted zoning ordinances or bylaws may
consider revising the location of their "marijuana zoning
districts," lest a marijuana establishment potentially operate in
the same area previously reserved for an RMD. In a similar vein,
municipalities that have not already established a "marijuana
zoning district" may have to account for both medical and
non-medical marijuana businesses when they ultimately create such a
zoning district in the future.
Second, the act contains a buffer zone requirement, prohibiting
a marijuana establishment from being located within 500 feet of an
established public or private school (which provides kindergarten
or education in any of grades one through twelve). See
G.L.c. 94G, § 5(b)(3). The act expressly authorizes a municipality
to reduce this buffer zone requirement. See id.
However, the buffer zone requirements for recreational
establishments are distinct from those applicable to RMDs. Unlike
the act, the 2012 ballot question did not establish minimum or
default buffer zone requirements for RMDs. Rather, the buffer zone
requirements for RMDs are established by Department of Public
Health (DPH) regulation. RMDs must comply with all local siting
requirements - which are not necessarily limited to distances from
preexisting public or private schools (i.e., the default buffer
zone requirements under the act). See 105 CMR
725.110(A)(14). If a municipality has not enacted local siting
requirements, then, as a default requirement, an RMD cannot be
located within 500 feet of "a school, daycare center, or any
facility in which children commonly congregate." See id.
Indeed, the Massachusetts Land Court recently recognized the
flexibility allowed to a municipality to enact local siting
requirements for RMDs - but the language of the act casts doubt on
whether similar flexibility exists for similar local regulation of
marijuana establishments. See Little Children Schoolhouse, Inc.
v. Town of Brookline Zoning Board of Appeals, No. 15 MISC
000518 KFS, 2016 WL 4162455 (Mass. Land Ct. Aug. 4, 2016).
The differences in default buffer zone requirements between the
act (for marijuana establishments) and DPH regulation (for RMDs)
create complexity and conflict in establishing local siting
requirements. Specifically, the act is silent on the potential for
local siting requirements - such as distances from residential and
other sensitive uses - and on minimum buffer zone distances from
daycare centers and facilities in which children commonly
congregate (even though DPH regulations address the same). Given
this disparity, municipalities may need to revisit or pay
particular attention to the location and size of a zoning district
in which marijuana establishments can operate - absent following
procedures for prohibiting or restricting the number of marijuana
establishments.
Among the four states that previously approved for recreational
marijuana businesses prior to the 2016 election, three states had
opt-out procedures for local governments (Washington, Oregon and
Alaska), while one state (Colorado) utilized an opt-in procedure.
Massachusetts has been added to the list of opt-out jurisdictions,
albeit subject to a set of statutory procedures inconsistent with
the manner in which legislation is generally adopted at the local
level.
Notably, the act authorizes municipalities, using an ordinance
or bylaw, to: (1) prohibit one or multiple categories of marijuana
establishments from operating in the municipality; (2) restrict the
total number of marijuana retailers (a category of marijuana
establishments), to less than twenty percent of the number of
off-premises alcohol licenses issued in the municipality; or (3)
restrict the number of any category of marijuana establishments to
less than the number of medical marijuana treatment centers
authorized to conduct the same type of activity in the
municipality. See G.L.c. 94G, § 3(a)(2). These types of ordinances
or bylaws have the potential to severely limit or outright prohibit
marijuana establishments in an opt-out municipality - if enacted
"by a vote of the voters." This is separate from the initiative
petition procedures required for on-site consumption at certain
marijuana establishments. See G.L.c. 94G, § 3(b).
The phrase "by a vote of the voters" presents ambiguity and
creates untoward debate - as opposed to uniformity - in regulation.
Under Massachusetts law, ordinances and bylaws are generally
adopted by the local legislative body (e.g., approval by town
meeting or passage by a city or town council and signing by a
mayor), not by the registered voters within the municipality.
See, e.g. G.L.c. 40A, § 5 (involving requirements for
enactment of zoning ordinances and bylaws). What this phrase means
is open to a realm of possibilities, creating questions, among
others, as to: whether a referendum vote in the municipality is
required; whether a referendum vote, if required, can delegate
action to the local legislative body or instead requires
affirmative approval of a bylaw or ordinance; and whether, and to
what extent, the local legislative body has a role in enacting an
ordinance or bylaw or follows existing state law for adopting
ordinances or bylaws.
This uncertainty in how a municipality can prohibit or restrict
the number of marijuana establishments creates a ripe opportunity
for legislative amendment to the act or clarification through
commission regulation. Otherwise, there is a palpable risk that a
would-be marijuana establishment may challenge the process
undertaken by a municipality attempting to exercise its police
powers to prohibit or limit marijuana establishments.
By comparison, the ballot question adopted in Alaska at its 2014
statewide election provides more clarity on the scope of local
government authority than its Massachusetts counterpart. In that
regard, Alaska Stat. § 17.38, stated that "[a] local government may
prohibit the operation of marijuana cultivation facilities,
marijuana product manufacturing facilities, marijuana testing
facilities, or retail marijuana stores through the enactment of an
ordinance or by a voter initiative." See Alaska
Stat. § 17.38.110(a) (emphasis added). This process is similarly
reflected in regulations adopted by the Alaska Marijuana Control
Board. See 3 AAC 306.200. Thus, Alaska's ballot question
and subsequent regulations contemplated action by either the local
government or voter initiative - as opposed to the act, which
muddies both mechanisms for Massachusetts.
Future Developments
While the state of the retail marijuana industry in
Massachusetts continues to evolve, the operable deadlines under the
act have been delayed by six months, because the Legislature
enacted "An Act Further Regulating the Cultivation of Marijuana and
Marihuana" near the end of the last legislative session.
Appointments to the commission, charged with adopting and
administering regulations and comprised of three members, must be
made by September 1, 2017. In turn, the commission has until March
15, 2018 to adopt initial regulations, and the earliest that the
commission can accept any applications is April 1, 2018. It remains
within the realm of possibility that the Legislature or the
commission will provide the necessary guidance for municipalities
to make decisions to opt-out from the act before that time.
In the interim, municipalities may already be starting to act
through moratoriums, much in the way that they did when the 2012
ballot question passed. See Office of the Attorney General
Municipal Law Unit Case #8242 (approving marijuana establishment
moratorium through June 30, 2018). For context, Massachusetts
courts have sanctioned moratoriums, where "temporary and adopted to
provide controlled development while the municipality engages in
comprehensive planning studies." Sturges v. Town of
Chilmark, 380 Mass. 246, 252-53 (1980); W.R. Grace &
Co.-Conn. v. Cambridge City Council, 56 Mass. App. Ct. 559
(2002). Such planning studies may be necessary because the act:
creates a new "vice" industry in Massachusetts; involves unknown
risks to the public health, safety and welfare; presents new
challenges in policing and enforcement; and requires time for
municipalities to analyze and respond to future regulations and
potential legislative amendments. Otherwise, municipalities will
need to review and update their ordinances and bylaws in advance of
the industry setting up its proverbial shop, barring a local
opt-out from the act.