MMA letter to House members urges support for ​bill to ​fix flaws in ​recreational marijuana law

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Dear Representative,
On behalf of cities and towns across the Commonwealth, the Massachusetts Municipal Association is writing to urge you to please support H. 3751, the Joint Committee on Marijuana Policy’s legislation to ensure the effective implementation of Question 4, the Regulation and Taxation of Marijuana Act. We applaud Speaker Robert DeLeo, Chairman Mark Cusack and the members of the Committee for their dedication and openness to input from municipal officials and all stakeholders. The Committee has fully engaged on this issue and listened to the concerns of all impacted parties to create a balanced and well-written bill, and we appreciate their leadership.
It is important to emphasize that Question 4 prevailed and the issue of whether or not to legalize the commercial sale and recreational use of marijuana has been settled. Yet it is also clear that the new law has several significant drafting flaws that require fixing to prevent negative outcomes, as well as clarification to ensure that the stated intentions of the law are met. Just as the Legislature and governor acted in 1981 to amend Proposition 2½ to make it workable, we believe it is appropriate and necessary for lawmakers to take action to address the serious shortcomings in the Regulation and Taxation of Marijuana Act. Doing so will benefit the public interest and aid the commercial marijuana industry by ensuring a smoother and faster implementation process. We appreciate the clarity and accuracy of the fixes to the law that the Committee has provided.
H. 3751 Ensures a Workable Framework for Local Decision-Making. We strongly support the provisions in H. 3751 to normalize the system of local control by restoring basic decision-making and zoning authority to the local legislative body.
The ballot question was written without any real understanding of either the municipal election cycle, or the fact that local legislative bodies are responsible for essential zoning decisions. Question 4 would require a referendum in order for a community to limit the number of commercial pot shops or ban commercial sales, but this language is deeply flawed. First, 85% of communities will not hold their next municipal election until next year, well after the Cannabis Control Commission begins accepting applications from commercial vendors, which is a major problem because communities cannot retroactively regulate or zone. The remaining 15% of communities are cities, which hold municipal elections every two years, and their next election in November will come before the CCC has completed its regulatory process. Further, in many communities there is no process for placing such a referendum on the ballot. In other words, the municipal election calendar sets the decision-making dates either too early or too late to be effective, and the language in the question is inconsistent with municipal election processes.
The stated intent of the 2016 Marijuana Act was to "normalize" the marijuana industry; yet virtually no other industry is able to bypass the local decision-making bodies when seeking approval to locate in a city or town. The language of this Act makes it impossible for city councils or Town Meetings to make these zoning decisions, as they are able to do with any other business. Instead, communities are only allowed to act if they pursue the convoluted and unclear process of placing a question on the ballot for voters to approve at their next state or local election in conjunction with passing a parallel bylaw. Under Massachusetts law, decisions on zoning and commercial activity are inherent in the duties of Town Meetings, town councils and city councils.
H. 3751 solves the unworkable aspects of the ballot question by using the legal framework that exists for all other aspects of zoning and commercial regulation – approval by the local legislative body. Even on this point, there seems to be confusion on the part of the commercial advocates, as they erroneously claim that H. 3751 would empower "a handful of local selectmen" to make these decisions. That is simply not true. In order for a Town to limit or ban commercial pot shops, the Selectmen would have to vote to send the issue to Town Meeting, and Town Meeting would make the ultimate decision. At the Town level, 259 have Open Town Meetings, where every registered voter can participate, and 36 have Representative Town Meetings, where a range of 150-225 elected representatives vote on behalf of the community. The remaining 56 communities have City or Town Councils, with elected local legislators who meet regularly year-round to make all zoning, licensing and permitting decisions. Every one of these meetings is public. New England local government is the gold standard in terms of local American democracy. It does not make sense to create a special and unique exception in the law to allow the marijuana industry to circumvent the municipal decision-making process that shapes all other commercial activity.
Importantly, the commercial marijuana industry should recognize that fixing these flaws in the question will actually facilitate a swifter growth in the marketplace, and will ensure a robust and fair roll-out process. The flaws and lack of clarity in the existing language is bogging down the zoning process, and is forcing a growing number of communities to adopt moratoriums.
Please Increase the Municipal Excise to 6%. We are pleased that the Committee bill has recognized that, for the very large number of communities that will host commercial marijuana facilities, the original 2% municipal excise tax is far too low. The Committee bill would increase this to 5%, and while we recognize this as a step forward, we believe the municipal share should be set at a minimum of 6%. This is because cities and towns will incur significant costs in administering and enforcing this new commercial activity at the local level, and we believe the 5% amount would fall short. Thus, we urge you to increase the municipal excise during your debate on Thursday afternoon. Also, for the record, some industry advocates have erroneously claimed that the overall 28% tax in the bill would be the highest. This is not the case. The ballot question, as written, would have provided for one of the lowest tax rates in the nation for commercial marijuana, matched only by Maine with the same 10% state rate. The adjusted rate in H. 3751 will still leave Massachusetts comfortably in the middle of the states that have legalized, and below states such as Colorado and Washington, with rates at 30% and 37%, respectively.
Cities and towns have a responsibility to implement the new law in a manner that protects the public interest, yet communities will not be able to fulfill this responsibility unless the provisions of H. 3751 are enacted. Just as the Legislature and governor acted in 1981 to amend Proposition 2½ to make it workable, we respectfully ask the full Legislature to take action to support the Committee’s efforts to address the shortcomings in the Marijuana Act. Doing so would benefit the public interest and every community.
Thank you very much for your consideration. If you have any questions or wish to receive additional information, please do not hesitate to have your office contact me or MMA Legislative Analyst David Lakeman at (617) 426-7272 at any time.
Geoffrey C. Beckwith
Executive Director & CEO