AG’s Office issues further guidance on marijuana restrictions

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The Attorney General’s Office yesterday disapproved provisions in a local zoning bylaw that would have prohibited the cultivation of marijuana at a residence and strictly limited the off-site delivery of marijuana products, saying the provisions conflict with state law.
 
The AG’s Office approved, however, a requirement that recreational marijuana establishments obtain special permit approval.
 
In its ruling on a bylaw passed by Town Meeting in Westborough last October, the Attorney General’s Office wrote that the provisions it disapproved conflict with the medical marijuana law passed by voters in 2012 and the recreational marijuana law passed by voters last fall.
 
The Westborough amendments, which were passed before the Nov. 8 election, would have prohibited home growth of recreational marijuana and medicinal marijuana. The AG’s Office wrote that the state laws expressly allow personal home growth, with certain restrictions.
 
The office also ruled on restrictions placed on off-site delivery of medical and recreational marijuana. Restrictions on off-site delivery of medical marijuana are prohibited by the medical marijuana act, the office wrote, and a similar bylaw was struck down by Attorney General Martha Coakley in 2013.
 
The AG’s office did uphold Westborough’s requirement that delivery of off-site retail marijuana be done only when allowed by special permit, but warned that “…(the Town) may not prohibit all off-site delivery of retail marijuana,” as the recreational marijuana law protects the transportation of marijuana as follows:
 
“No city or town shall prohibit the transportation of marijuana or marijuana products or adopt an ordinance or by-law that makes the transportation of marijuana or marijuana products unreasonably impracticable.”
 
The AG’s ruling is expected to serve as guidance for municipalities across the state that are seeking to place preemptive limitations on the nascent marijuana industry and market through zoning bylaws.
 
The state law approved by voters last fall allows the cultivation, distribution, possession and use of marijuana for recreational purposes. On Dec. 15, it became legal for Massachusetts residents age 21 or older to possess, grow, use and “gift” certain amounts of marijuana, but the sale and distribution of recreational marijuana does not become legal until a new Cannabis Control Commission issues regulations regarding implementation of the law.
 
The Cannabis Control Commission is charged with establishing marijuana regulations by June of 2018.
 
The recreational marijuana law allows for municipalities to adopt ordinances or bylaws that regulate the “time, place, and manner of operations” of recreational marijuana facilities, so long as such bylaws or ordinances are not “unreasonably impracticable.”
 
Under state law, general and zoning bylaws cannot take effect unless the town has satisfied posting/publishing requirements and the AG’s Office has ruled that the bylaw is within the town’s power and does not conflict with state laws or the state constitution.
 
Download Attorney General’s letter to Westborough regarding bylaw (210K PDF)