AG OK’s local temporary moratorium on recreational marijuana businesses

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The Attorney General’s Office yesterday approved a local zoning bylaw that imposes a temporary moratorium on recreational marijuana businesses in the town of West Bridgewater.
The AG’s Office wrote that the moratorium is “consistent with the Town’s authority to impose reasonable time limitations on development so that the Town can engage in a legitimate planning study.”
The AG’s ruling is expected to serve as guidance for municipalities across the state that seek adequate time to establish local rules and procedures for recreational marijuana activities within their borders, or to hold a local vote on whether to allow recreational marijuana businesses at all.
Nearly two dozen communities have either enacted a moratorium or begun the process to bring the matter before their spring town meeting or municipal election. Several local bylaws have already been submitted to the Attorney General’s Office for final approval.
The West Bridgewater bylaw, approved at a special town meeting last Dec. 14, institutes a moratorium on “the use of land or structures for a recreational marijuana establishment” through June 30, 2018. The AG’s Office found that the moratorium is allowable because it is “limited in time period and scope.”
At the statewide election last November, voters approved a law allowing 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 ballot question set a deadline of Sept. 15, 2017, for the regulations, but the Legislature in late December enacted a six-month extension, which the governor signed on Dec. 30. So the Cannabis Control Commission now has until March 15, 2018, to issue regulations.
The town of West Bridgewater was seeking the opportunity to review the regulations governing this new form of business before taking local action.
The town’s bylaw states: “The regulation of Recreational Marijuana Establishments and Marijuana Retailers raise novel and complex legal, planning, and public safety issues, and the Town needs time to study and consider the regulation of Recreational Marijuana Establishments and Marijuana Retailers … as well as to address the potential impact of the State regulations on local zoning and to undertake a planning process to consider amending the Zoning Bylaw regarding regulation of Recreational Marijuana Establishments and Marijuana Retailers and other uses related to … recreational marijuana.”
The AG’s Office ruled that towns retain the authority to “impose reasonable time limitations” … “when the stated intent is to manage a new use, such as recreational marijuana establishments” and there is a need for further study of a complex matter. The ruling did not, however, identify a timeframe for what would be considered a “reasonable time limitation.”
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.
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.”
Local governments seeking to limit the number of marijuana dispensaries to less than 20 percent of the number of liquor licenses issued for the municipality will need to have that limit or ban approved by “a vote of the voters,” construed by many experts to be a referendum at the next available election.
Legislative leaders have indicated that they will consider further refinements to the law during the current formal session. Such changes could include adjusting the marijuana tax rates under the new law, to ensure that the revenue is at least sufficient to cover the costs of regulation, or changes to the composition of the Cannabis Control Commission and/or the Cannabis Advisory Board.
In the short term, state leaders must identify a source of funding for regulatory startup costs, as state and local officials are required to begin the process of regulating the commercial marijuana industry before it generates any tax revenue.
Download letter from Attorney General’s Office approving West Bridgewater bylaw (125K PDF)