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Question 4 resolved the matter of whether recreational marijuana would be legalized in Massachusetts, but it will take years to iron out the legal questions that arise from last November’s complex ballot initiative.
This was the consensus of a panel of state and local officials gathered for a forum on the topic sponsored by the Massachusetts Municipal Lawyers Association and the MMA on March 10 in Worcester.
The panelists urged local officials to examine their zoning bylaws and act quickly to ensure that any commercial marijuana activity is conducted in a manner that is acceptable to the city or town.
“I think communities need to deal with this now,” said Margaret Hurley, chief of the unit in the Attorney General’s Office that reviews and approves town bylaws. “I know it’s difficult, but I think during 2017 is the time to deal with it.”
Any legislative adjustments to the law are likely months away, and initial regulations governing implementation of the law are a year away. But communities are advised not to wait for these developments before they prepare for the new form of commerce within their borders.
“The application process opens on April 1, 2018, and at that point, if you don’t have a bylaw or an ordinance in place [or a moratorium] … and you get notice from the [state] that there’s an application for your community, you don’t have a basis to say, ‘There’s a conflict here with a local ordinance or bylaw.’”
So far, five communities have approved moratoriums to give themselves more time to study the local implications of the law, and one community – Westborough – has taken action to ban commercial marijuana establishments. Another 70 communities are putting a moratorium before their spring town meeting or an upcoming city council meeting, or they are putting an outright ban on their election ballot, according to the MMA’s tracking of local measures.
Local control options
The law allows for the following three restrictions on commercial marijuana establishments:
• Prohibiting the operation of one or more types of commercial marijuana businesses (though possession and home growth would still be allowed)
• Limiting the number of marijuana establishments to 20 percent of the number of liquor store permits in the community
• Limiting the number of marijuana establishments to fewer than the number of registered medical marijuana facilities in the community
To adopt any of these restrictions, the law requires that a city or town must “adopt an ordinance or by-law by a vote of the voters of that city or town.” Typically, in a city an ordinance is adopted by a city council or board of aldermen, and in a town a bylaw is adopted by town meeting, but would either be considered “a vote of the voters”? Panelists recommended following the lead of Westborough’s “belt and suspenders” approach, where the town ran its prohibition through the ballot as well as town meeting in order to minimize the risk of being challenged in court.
The 20 percent threshold is considered problematic as well – What is 20 percent of seven? One? Two? – but panelists expressed hope that this will be clarified in the forthcoming regulations.
Aside from these three options, communities may regulate the “time, place and manner” of commercial marijuana operations through bylaws and ordinances, but such regulations may not be “unreasonably impracticable.” Essentially, this means that the rules cannot be so restrictive as to interfere with the viability of the business.
Communities that allow commercial marijuana activities cannot prohibit the delivery of marijuana products. Medical marijuana facilities cannot be prohibited from also operating a commercial marijuana business. And commercial marijuana facilities cannot be prohibited from operating in a zoning district that currently allows medical marijuana facilities.
The law allows for a local-option sales tax of up to 2 percent on commercial marijuana sales, and attorney Brandon Moss, who serves as town counsel in Bedford, Mendon and Scituate, reminded attendees that the local revenue component is not automatic, so communities should adopt it soon if they will be allowing marijuana businesses.
New regulatory structure
Two attorneys from the Office of the State Treasurer acknowledged the steep climb ahead for their office, which is charged with establishing and appointing the three-member Cannabis Control Commission, which in turn will develop the state regulations to implement the law and issue licenses to businesses. The final regulations are due by July 1, 2018.
“We have to build a brand new agency that does not exist today,” said Shawn Collins, an assistant treasurer and director of policy and legislative affairs. “There are no available resources to this commission. … There are no license fees that have been charged, there are no taxes that have been levied.”
Regarding the development of regulations, Collins said, “We want to be very public about that process.”
Collins and his colleague Sarah Kim, deputy treasurer and general counsel, pointed out that other states that have legalized commercial marijuana put it under liquor or gambling mechanisms, rather than the treasurer’s office. And medical marijuana, legalized here in 2012, falls under the Department of Public Health, which will not be the oversight agency for the commercial industry.
Kim and Collins listed a number of challenges on the horizon, such as developing a system and acquiring the technology to track marijuana inventories and to test products, including “edibles,” to ensure that they’re safe for consumers, a role typically entrusted to federal agencies.
They said other states that have legalized marijuana report public safety issues such as fires and explosions due to the use of butane to extract THC from marijuana plants or the large amount of additional power needed for grow lights and climate control. The disposal of large amounts of marijuana – seized from the black market or when a grower exceeds the limits of the law – presents a challenge for law enforcement.
“This industry is going to touch all aspects of state and local government,” Kim said.
Bylaws and moratoriums
Hurley said her three-person office has been busy reviewing town bylaws related to the emerging industry, checking them for any conflicts with state law, including the recreational marijuana law itself. Her office also reviews for conflicts with federal law, with the exception of the federal classification of marijuana as a Class I illegal substance.
“The language of this ballot question is not clear itself,” Hurley said. “So, for us to find a clear conflict with unclear text, that gives you, I hope, a sense of how we’re looking at it.
“We have a ballot question that was inartfully drawn at best, by folks who don’t understand municipal workings.”
She said her office is “happy to share any knowledge we’ve accumulated through our bylaw review process.”
On the topic or moratoriums, her office has approved of the concept for a “reasonable” and limited time period. She added that it would be up to the courts to determine what is reasonable, but suggested that “anything that goes beyond 2018 would put the community at risk for a challenge.”
Hurley advised local officials to make their concerns about the law known to the members of the Legislature’s special joint committee that will be evaluating the scores of bills that have been filed to address concerns with the language of the initiative petition.
All the panelists pointed out that the new marijuana law offers ample opportunities for cities and towns to take actions that could be challenged in court. They urged local officials to proceed with caution and work closely with municipal counsel.
Local officials can find continually updated information on this issue at www.mma.org as well as www.mass.gov/treasury/marijuana, www.boston.gov/departments/311/marijuana-legalization-and-city-boston, and www.cmrpc.org/recreationalmarijuana.