General bylaws cannot contradict use controlled by zoning bylaw

A town may not adopt a general bylaw to restrict a use that the town has historically regulated by zoning bylaw, according to an April 1 decision from the Attorney General’s Office.

Under state law (Ch. 94G, Sec. 3), cities and towns can adopt ordinances and bylaws that impose reasonable safeguards on the operation of marijuana establishments. Nothing in Section 3 specifies whether these should be enacted as zoning bylaws or general bylaws.

Following voter approval of a ballot question in November 2016 to legalize adult-use marijuana, town meetings in Charlton and Brewster amended zoning bylaws to account for recreational marijuana establishments. Subsequently, citizens advanced warrant articles seeking to adopt a general bylaw barring all marijuana establishments.

In a March decision involving a marijuana grower and the town of Charlton, the Land Court provided principles for analyzing when a general bylaw impermissibly intrudes on a subject that is or should be regulated by a zoning bylaw.

“The first step is to examine the subject matter of the challenged general bylaw,” the court wrote. “A general bylaw may only regulate a subject if there is no history in the municipality of the subject being treated under zoning.”

A general bylaw, the court wrote, can only supplement the terms of the zoning bylaw, but may not contradict or restrict the use that is controlled by the zoning bylaw.

Having permitted recreational marijuana establishments through their zoning bylaws, neither Charlton nor Brewster could change or bar that use through a general bylaw, which would have the effect of circumventing the stricter requirements for enactment of a zoning bylaw (a two-thirds majority at town meeting as well as planning board review and a public hearing).

The Attorney General’s Office used the Land Court rationale to reach its decision.