Documente Academic
Documente Profesional
Documente Cultură
INTRODUCTION
By citizens petition at the November 2012 state election, Massachusetts
voters approved The Humanitarian Medical Use of Marijuana Act (the
Medical Marijuana Act) authorizing the medical use of marijuana in the
Commonwealth.1 Regulations promulgated by the state Department of
Public Health (DPH)2 require persons and entities operating under the
Medical Marijuana Act to comply with all local rules, regulations,
ordinances, and bylaws, among numerous other provisions. Given that
Massachusetts has 351 cities and towns functioning under Home Rule
authority3 and decentralized zoning,4 a wide range of municipal responses
to the Medical Marijuana Act and DPH Regulations have emerged. Some
municipalities have taken a completely hands-off approach, declining to
specifically regulate the medical use of marijuana as a matter of land use
control; others have sought to erect barricades, attempting to shut out all
such use. While this local control presents challenges to proponents seeking
to locate medical marijuana treatment facilities (as it does to developers in
general), it exemplifies Massachusetts traditional zoning practiceunless a
Humanitarian Medical Use of Marijuana Act, MASS. GEN. LAWS ANN. ch. 94C app. (2014).
105 MASS. CODE REGS. 725.600(A) (2013).
3 See MASS. CONST. amend. art. LXXXIX, 6; see also MASS. GEN. LAWS ch. 43B, 120 (2012).
4 See MASS. GEN. LAWS ch. 40A, 117. See generally Historical Data Relating to the
Incorporation of and Abolishment of Counties in the Commonwealth of Massachusetts, SECRETARY OF
THE COMMONWEALTH OF MASS., http://www.sec.state.ma.us/cis/cisctlist/ctlistcounin.htm (last
visited Mar. 2, 2015). For general discussion of the history of zoning regulation in Massachusetts
and its relationship to the Home Rule Amendment, see generally MARK BOBROWSKI, HANDBOOK
OF MASSACHUSETTS LAND USE AND PLANNING LAW 2.0203 (3d ed. 2011).
2
57
58
v. 49 | 43
local bylaw or ordinance directly conflicts with state law, it will be upheld
under the dual principles of home rule and decentralized zoning.5
This Article will address some of the municipal responses to the Medical
Marijuana Act and DPH Regulations in the context of the particulars of
Massachusetts home rule and zoning law.
I.
The Medical Marijuana Act, which was approved by 60% of the votes
cast,6 states in section one, there should be no punishment under state law
for qualifying patients, physicians and health care professionals, personal
caregivers for patients, or medical marijuana treatment center agents for the
medical use of marijuana, as defined herein.7 The Medical Marijuana Act
provides that a medical marijuana treatment center is a not-for-profit
entity, as defined by Massachusetts law only, registered under this law, that
acquires, cultivates, possesses, processes . . . marijuana [and] products
containing marijuana . . . to qualifying patients or their personal caregivers.8
The Medical Marijuana Act defines debilitating medical condition,
dispensary agent, medical use of marijuana, personal caregiver, qualifying
patient, and other terms.9
Under the Medical Marijuana Act, medical use of marijuana means the
acquisition, cultivation, possession, processing, . . . transfer, transportation,
sale, distribution, dispensing, or administration of marijuana, for the benefit
of qualifying patients in the treatment of debilitating medical conditions
[also defined], or the symptoms thereof.10 A qualifying patient is allowed a
sixty-day supply of marijuana for medical use.11 Authorization of such a
supply to a qualifying patient may only be made by a licensed
physician . . . . in the course of a bona fide physician-patient relationship and
shall specify the qualifying patients debilitating medical condition(s).12
MASS. GEN. LAWS ANN. ch. 94C app. 1-1 (2014). Section 2 of the Medical Marijuana Act
sets forth the definitions of the particular terms. Id. 1-2. The DPH Regulations further define
the relevant terms. 105 MASS. CODE REGS. 725.004 (2014).
8
2015
59
(B)
13
Id. 9, 10.
Humanitarian Medical Use of Marijuana 11.
15 Id. 9(C). Another detail of Massachusetts local government law is that counties have very
little legal significance and some have been abolished. See Historical Data Relating to the
Incorporation of and Abolishment of Counties in the Commonwealth of Massachusetts, SECRETARY OF
THE COMMONWEALTH OF MASS., http://www.sec.state.ma.us/cis/cisctlist/ctlistcounin.htm (last
visited Mar. 2, 2015). Nonetheless, for the purpose of regulating marijuana, Massachusetts has
fourteen counties. Information and Historical Data on Cities, Towns and Counties in the
Commonwealth of Massachusetts, SECRETARY OF THE COMMONWEALTH OF MASS.,
www.sec.state.ma.us/cis/cisctlist/ctlistidx.htm (last visited Mar. 2, 2015).
14
16
60
v. 49 | 43
These provisions detail how cities and towns have addressed zoning
regulation of marijuana for medical use.22
19 Id. at 725.600. While beyond the scope of this article, several municipalities have opted
through their boards of health to regulate the medical use of marijuana. See, e.g., Regulation to
Ensure Safe Access to Medical Marijuana in the City of Boston (Boston Pub. Health Commn
2013).
20
2015
61
23 See MASS. CONST. amend. LXXXIX; MASS. GEN. LAWS ch. 43B (2014); Marshal House, Inc.
v. Rent Review and Grievance Bd. of Brookline, 260 N.E.2d 200, 20506 (Mass. 1970); Town of
Amherst v. Attorney Gen., 502 N.E.2d 128, 130 (Mass. 1986).
24 Town of Amherst, 502 N.E.2d at 130 n.6. The General Court in Massachusetts is the state
legislature; the state supreme court is the Supreme Judicial Court. MASS. CONST. pt. 2, ch. I,
1, art. I; About the Supreme Judicial Court, MASS. CT. SYS., http://www.mass.gov/courts/courtinfo/sjc/about/ (last visited Mar. 2, 2015).
25
Fafard v. Conservation Commn of Barnstable, 733 N.E.2d 66, 7172 (Mass. 2000).
Boston Gas Co. v. City of Somerville, 652 N.E.2d 132, 13334 (Mass. 1995) (invalidating city
requirements for street excavations by gas companies as inconsistent with state public utilities
regulation); Town of Wendell v. Attorney Gen., 476 N.E.2d 585, 589 (Mass. 1985) (invalidating
local regulation of pesticide).
26
27 See, e.g., Barlow v. Town of Wareham, 517 N.E.2d 146, 150 (Mass. 1988) (shell fishing
limitations permitted); Bloom v. City of Worcester, 293 N.E.2d 268, 280, 285 (Mass. 1973) (local
human rights ordinance upheld).
28 MASS. GEN. LAWS ch. 40A (2012). Although amended on several occasions since then, the
basic structure has remained unchanged.
62
v. 49 | 43
constitutional powers of cities and towns to protect the health, safety and
general welfare of their present and future inhabitants.29 The interests of
the Home Rule Amendment and the Zoning Act are the same, and
municipalities have wide leeway to craft land use controls that are
responsive to local needs. Thus, across the state lot area size, setbacks,
height, and other dimensional regulations vary by community. Similarly,
use regulations vary by city and town. This patchwork is the prevailing land
use policy under the Zoning Act.
However, there are some limits. In Zuckerman v. Town of Hadley, the town
had adopted a rate of development bylaw setting an annual cap on the
number of building permits that could be issued. 30 The Attorney General
approved the bylaw but, several years later, after challenge by a developer,
the Supreme Judicial Court invalidated it. Comparing such a permanent
restriction to a temporary moratorium on certain types of growth, 31 the
Court ruled that the bylaw effectively and impermissibly shifted the burdens
of growth from the town to its neighbors. As such, the bylaw did not serve
a permissible public purpose, and [was] unconstitutional.32 In contrast, a
time-limited zoning restriction was permissible to give communities
breathing room for periods reasonably necessary for the purposes of growth
planning generally, or resource problem solving specifically.33
IV. Attorney General Analysis and Rulings
When Massachusetts municipalities began adopting bylaws and
ordinances regulating the medical use of marijuana, the intersection of home
rule and zoning principles began to play out, particularly in towns. Because
town bylaws are subject to review and approval by the state Attorney
General, such review provides an initial reading of how such regulations
will be treated.34 The range of regulation ran the gamut from an attempt at
an outright ban to simple amendments to a table of uses incorporating the
new use. Some chose not to act at all. Cities took similar paths, but since their
ordinances are not reviewed by the Attorney General, no outside legal
review of an ordinances consistency with state law occurs unless and until
29
32
2015
63
35 Massachusetts city ordinances and town bylaws are not codified in any central place.
While most are now available on municipal websites, with official versions being kept by the
city and town clerks, research involves looking at each city or town separately. When the
Attorney General approves a bylaw, such approval is referenced by the town meeting article
designation and does not include the text of the bylaw. When the Attorney General comments
on or disapproves a bylaw, the text of the bylaw is usually set forth.
36
Letter from Mass. Atty Gen. to Town Clerk of Wakefield, at 2 (Mar. 13, 2013), available at
http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
37
Id.
Id. at 1.
39 Id. at 4 (emphasis in original).
38
64
v. 49 | 43
centers. If one city or town could ban such access, all could; thus the
statewide legislative purpose would be frustrated. 40
Nonetheless, the Attorney General recognized that municipalities are
not prohibited from adopting zoning by-laws to regulate medical marijuana
treatment centers, so long as such zoning by-laws do not conflict with the
Act (or regulations adopted to implement the Act).41 It was the total ban on
medical marijuana treatment centers that the Attorney General disapproved,
not their regulation.42
B. Moratorium UpheldTown of Burlington
The town of Burlington took another approach by adopting a
moratorium on medical marijuana treatment centers in January 2013. The
moratorium was temporary (through June 30, 2014) and identified the
following reasons in support, among others: the DPH Regulations were not
to be promulgated until May 2013; the town needed time to study and
consider the novel and complex issues raised by regulating medical
marijuana treatment centers; and the town intended to undertake a
planning process to consider amending its zoning bylaw to address those
issues.43
The Attorney General upheld the bylaw, stating the bylaw is consistent
with the Towns authority to impose reasonable time limitations on
development, at least where those restrictions are temporary and adopted to
provide controlled development while the municipality engages in
comprehensive planning studies.44 These elements, consistent with
established case law interpreting the Home Rule Amendment and the
Zoning Act, were markedly absent in the Wakefield bylaw and the different
outcome was predictable.
Many communities successfully followed Burlingtons lead and
adopted similar moratoria. However, in September 2013, the Attorney
General disapproved the second year of a moratorium voted by the town of
Canton. Approving a moratorium period from July 1, 2013 to June 30, 2014,
the Attorney General ruled that a moratorium extending to June 30, 2015
40
Id. at 6.
Id. at 1.
42 The town of Wakefield challenged the Attorney Generals ruling and the superior court
upheld it. Wakefield v. Coakley, No. 13-1684 (Suffolk Super. Ct. 2014). Wakefield did not
appeal.
41
43
Letter from Mass. Atty Gen. to Town Clerk of Burlington, at 12 (Mar. 13, 2013), available
at http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
44
Id. at 2.
2015
65
45 Letter from Mass. Atty Gen. to Town Clerk of Canton, at 1 (Sep. 12, 2013), available at
http://www.mlu.ago.state.ma/us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
46
Letter from Mass. Atty Gen. to Town Clerk of Westborough, at 1 (July 22, 2013), available
at http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
47
66
v. 49 | 43
52
Id. at 7.
Id. at 10.
54 Letter from Mass. Atty Gen. to Town Clerk of Westborough, supra note 46, at 1112.
55 Id. at 12.
56 Id. at 13.
57 Letter from Mass. Atty Gen. to Town Clerk of Amherst, at 2 (Apr. 22, 2014), available at
http://www.mlu.ago.state.ma.us/ (alteration in original) (emphasis omitted) (follow the
hyperlink in the left-hand column that corresponds with the date and town of the cited letter).
53
2015
67
Marijuana Act and the DPH Regulations allowance of the medical use of
marijuana. She also questioned whether the provision violated the First
Amendment to the United States Constitution regarding commercial
speech.58
According to the DPH Regulations, unless a municipality establishes
other setback requirements, the default setback for an RMD from a school,
daycare center, or any facility in which children commonly congregate is
500 feet.59 The town of Concord adopted a 3,000-foot setback from schools
and public libraries.60 An RMD was also limited to the towns MedicalProfessional District. The Attorney General approved Concords restrictions
without comment.61 Other communities have adopted similar setbacks from
various places in which children commonly congregate.62 The town of
Essex adopted a provision requiring an RMD to be 2,500 feet from any
school, pre-school, day care center, playground or athletic field or within
1500 feet of any residential dwelling.63 Similarly, in the town of Brookfield,
RMDs are limited to an overlay district with a 2,500-foot setback from
various land uses, including a library, public swimming pool, youth center,
and a video arcade. Brookfield also provides that the distance may be
reduced by up to 25% if the RMD would otherwise be effectively prohibited
within the Town.64 The Attorney General also approved this provision
without comment.65 In contrast, the city of Worcester adopted a 300-foot
setback from a residential district.66
58
Id. at 23.
105 MASS. CODE REGS. 725.110(A)(14) (2014); see also DEPT OF PUBLIC HEALTH, GUIDANCE
FOR MUNICIPALITIES REGARDING THE MEDICAL USE OF MARIJUANA 1 (Dec. 13, 2013), available at
http://www.mass.gov/eohhs/docs/dph/quality/medical-marijuana/municipal-guidance.pdf.
59
60 Letter from Atty Gen. to Town Clerk of Concord, at 2 (Sept. 25, 2013), available at
http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
61 Id.
62 105 MASS. CODE REGS. 725.110(A)(14) (2014).
63 See Warrant for Special Town Meeting, at 1 (June 3, 2014), available at
http://essexma.org/Pages/EssexMA_TownMeetingWarrants/ATM060314.pdf; Letter from Atty
Gen. to Town Clerk of Essex (Nov. 10, 2014), available at http://www.mlu.ago.state.ma.us/
(follow the hyperlink in the left-hand column that corresponds with the date and town of the
cited letter).
64
The Commonwealth of Mass. Annual Town Meeting Warrant, at 6 (June 6, 2014), available
at
http://www.brookfieldma.us/documents/Town%20Meeting/20140606%20Annual
%20Town%20Meeting%20Warrant%20-%20June%206,%202014.pdf.
65 See Letter from Atty Gen. to Town Clerk of Brookfield (July 15, 2014), available at
http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
66
See WORCESTER PLANNING BD., MINUTES OF THE PROCEEDINGS OF THE PLANNING BOARD OF
CITY OF WORCESTER 9 (Sept. 4, 2013), available at http://www.worcesterma.gov/agendasminutes/boards-commissions/planning-board/2013/20130904.pdf.
THE
68
v. 49 | 43
67
Letter from Atty Gen. to Town Clerk of Wareham, at 12 (Feb. 24, 2014), available at
http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
68 Id. at 2.
69 105 MASS. CODE REGS. 725.004 (2014).
70 Id. at 725.105(B)(1).
71 See Letter from Mass. Atty Gen. to Town Clerk of Ipswich, at 1 (Dec. 4, 2013), available at
http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
72
See Letter from Mass. Atty Gen. to Town Clerk of Pembroke, at 1 (Dec. 19, 2013), available
at http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
2015
69
CONCLUSION
DPH issuance of RMD registrations has proceeded very slowly. Given
that the Medical Marijuana Act only allows thirty-five RMDs statewide and
the DPH Regulations look, at a minimum, for municipal non-opposition to
an RMD, most applicants have gravitated to communities with less
restrictive zoning and more municipal support. Thus far no applicant has
brought a legal challenge to any zoning ordinance or bylaw regulating
medical marijuana. But, as the industry develops, applicants may seek to
locate in areas where RMDs are prohibited or subject to significant setback
or other restrictions. Also, in jurisdictions where an RMD requires a special
permit, judicial review under section seventeen of the Massachusetts Zoning
Act would be available in the event of a denial. From the municipal
perspective, even for communities where no RMD is currently planned,
adopting an ordinance or bylaw specifically regulating an RMD provides a
framework for addressing the matter when the time comes.
73