Author: Municipal Finance Law Bureau
This month's Ask DLS features frequently asked questions concerning cannabis dispensaries. Please let us know if you have other areas of interest or send a question to cityandtown@dor.state.ma.us. We would like to hear from you.
Are municipalities allowed to ban recreational marijuana establishments from their communities?
Yes. G.L.c. 94G, § 3(a)(2) permits cities and towns to adopt ordinances and bylaws that limit or ban recreational marijuana establishments within the city or town, subject to certain voting and other procedural requirements that vary depending on whether a majority of the municipality's voters voted "yes" or "no" on Question 4 in 2016 and whether the ban is adopted before or after December 31, 2019. See G. L. c. 94G, § 3(e). Further, the Cannabis Control Commission, Guidance for Municipalities Regarding Marijuana for Adult Use, at 9 (January 2018) states: “if a municipality voted no on the initiative, then the governing body could limit or ban the number of marijuana establishments . . . by passing a bylaw or ordinance prior to December 31, 2019.” G. L. c. 94G, § 3(a) also permits cities and towns to "adopt ordinances and by-laws that impose reasonable safeguards on the operation of marijuana establishments," which can, among other things, limit the number of such establishments.
Can a municipality’s zoning bylaw or ordinance operate to prevent a medical marijuana dispensary from converting to a retail marijuana dispensary?
G.L. c. 94G, § 3(a)(1) gives municipalities the power to regulate the number and location of retail marijuana establishments within their borders with certain exceptions. One such exception in G.L. c. 94G, § 3(a)(1) states that “zoning ordinances or by-laws shall not operate to prevent the conversion of a medical marijuana treatment center licensed or registered not later than July 1, 2017, engaged in the cultivation, manufacture or sale of marijuana or marijuana products to a marijuana retail facility.” In CommCan, Inc. v. Mansfield, 488 Mass. 291 (2021), the town of Mansfield argued that CommCan, Inc. did not qualify for a zoning exemption to convert their medical marijuana dispensary to a retail marijuana dispensary because they were not actively engaged in the sale of marijuana or marijuana products (no marijuana products had yet been sold). However, the Court disagreed with the town’s interpretation of what qualifies as being engaged in the sale of marijuana or marijuana products and noted that the only condition set by § 3(a)(1) is that the medical marijuana dispensary must have been “licensed or registered not later than July 1, 2017” which was satisfied by CommCan, Inc. in this case. CommCan, 488 Mass at 295-96.
Is a previously enacted municipal bylaw that permits only nonprofit entities to operate medical marijuana dispensaries preempted by a statutory provision specifically eliminating that restriction?
Yes. As described in West Street Associates LLC v. Mansfield 488 Mass. 319 (2021), consistent with the 2012 act, Mansfield required any applicant seeking a permit to operate a medical marijuana dispensary to be a nonprofit entity. See St. 2012, c. 369, § 9(C); Mansfield Bylaws § 230-3.4(K)(3)(c). The proposed operator was a nonprofit at the time the permit was granted. However, the Legislature amended said provision when it repealed and replaced the 2012 act in 2017 and expressly allowed medical marijuana establishments to be for-profit entities. St. 2017, c. 55, § 72. “Accordingly, Mansfield’s bylaw was preempted by state law to the extent it requires all medical marijuana dispensaries to be nonprofit organizations, and the board cannot be forced to revoke the special permit at issue because the proposed owner here appropriately exercised its statutory right to convert to a for-profit entity.” West Street Associates LLC, 488 Mass. at 324.
Helpful Resources
City & Town is brought to you by:
Editor: Dan Bertrand
Editorial Board: Marcia Bohinc, Linda Bradley, Sean Cronin, Emily Izzo, Lisa Krzywicki and Tony Rassias
| Date published: | September 1, 2022 |
|---|