LOCAL GOVERNMENTS & THE ACT FOR THE HUMANITARIAN MEDICAL USE OF MARIJUANA MASSACHUSETTS JODY H. LEHRER, J.D., MPA CANDIDATE BRIDGEWATER STATE UNIVERSITY
May 12, 2015
LOCAL GOVERNMENTS & THE ACT FOR THE HUMANITARIAN
MEDICAL USE OF MARIJUANA MASSACHUSETTS
J O DY H . L E H R E R , J . D . , M PA C A N D I D AT E
B R I D G E WAT E R S TAT E U N I V E R S I T Y
OVERVIEW OF PRESENTATION
1. Chapter 369 of the Acts of 2012
2. The research process 3. The findings 4. AG decisions5. Need for updated data
BALLOT QUESTION 3
Chapter 369 of the Acts of 2012
63.3% of votes cast
Passed in 349 of 351 communities (Mendon and Lawrence)
Effective January 1, 2013
Regulations effective May 24, 2013
CHAPTER 369 OF THE ACTS OF 2012
Qualifying patients with debilitating medical conditions may possess up to 60 day supply (10 oz) of medical marijuana
Protects doctors, health care professionals, qualifying patients, caregivers & dispensary agents from prosecution under state law.
THE RESEARCH PROCESS
Data was collected from 151 towns and cities
This is 43% of all local governments Data collected from 131 towns (42%
of all 312 towns) Data was obtained from 20 cities
(or 51% of all 39 cities).
Action Taken # % of Respondents
Moratoria 117 77
Zoned for RMDs 17 11
Banned RMDs 2 1
Moratoria rejected at ATMs
3 2
No moratoria or regulation likely
2 1
Considering zoning 2 1
Still deciding or waiting for others
8 5
Overview of Findings
BUFFER ZONES FOR RMDS
Of 17 communities that zoned for RMDs buffer zones pertain to such uses as:
Schools, daycares, parks, playgrounds, drug and alcohol rehabilitation centers, residential areas, churches, other RMDs
Buffer zones range from 300-1000 feet.
Medical professional;
Industrial;Commercial;Business;Adult business;General;
Commercial;Administrative
Office;Industrial
Extensive; Office Light
Industrial District
RMDs Allowed in …
PHASE 2 -RMD APPLICATION PROCESS
• 08/22/13 -181 RMD applications submitted 09/23/13 -159 invited to Phase II
• 10/07/13 - Phase II applications available (identify cultivating, processing, dispensing sites, provide evidence of local support)
• 01/31/13 final decisions to be made by DPH
COMMUNITIES REQUIRING SPS FOR RMDS
Amherst B-G; B-L; B-VC; COM; OP; LI
Chelmsford Industrial Limited and Industrial Special
Chicopee
Freetown Industrial 2
Leicester Bus, Central Bus., Industrial, Bus. Ind. A, Highway Bus. 1 & 2.
Merrimac Office Light Industrial District
Maynard B; HCI; I
Medfield Industrial-Extensive Zone
Pittsfield
Provincetown
Westborough
Adult Entertainment District
Westwood
MORATORIA & EXPIRATION DATES
Clinton December 31, 2014
W. Bridgewater December 30, 2014
Mashpee October 21, 2013
Wareham May 1, 2013
Hardwick June 22, 2014
Pepperell May 6, 2014
Wrentham (after DPH regs)
June 30, 2014
Acushnet November 30, 2014
Sturbridge (after DPH regs)
June 30, 2014
Belmont June 30, 2014
Natick June 30, 2014
Tyngsborough April 3, 2014
LOCAL PROVISIONS & AG DECISIONS
AG decisions -as all legal decisions – are written narrowly to apply to specific circumstances of a particular case.
However, if a city or town has a provision similar to one deemed problematic by AG, ask town counsel or city solicitor to review pending bylaw in light of AG decisions.
BY-LAW LANGUAGE: EXAMPLE 1
One by law included language stating :That special permit is required
for cultivation That offsite marijuana delivery
by RMDs is prohibited
WHAT THE AG SAID:
Regulations require hardship cultivation be at primary residence of patient or caregiver.
Regulations regarding testing may require offsite delivery to and from laboratories by RMDs.
Requiring discretionary special permit or prohibiting hardship cultivation at primary residence of patient/caregiver frustrates purpose of Act.
WHAT THE AG SAID:
BY-LAW LANAGUGE: EXAMPLE 2
Bylaws have said that moratoria will continue until:
“Future time that Town enacts superseding zoning bylaw(s) setting
forth allowed locations, dimensional, parking, and other
requirements applicable to medical marijuana uses and MMTCs”
WHAT THE AG SAID:
Can impose reasonable time limits on development if restrictions are:
“Temporary and adopted to provide controlled development while the local
government engages in comprehensive planning studies”
Moratoria cannot be of potentially unlimited duration.
WHAT THE AG SAID:
BY–LAW LANGUAGE: EXAMPLE 3
That the purpose of the moratorium was to enable the town to determine:
Whether to allow facilities associated with medical marijuana … to the extent that such facilities
are permitted under state laws and regulations”
WHAT THE AG SAID:
•If bylaw challenged in court, must make a prima facie showing of “rational reason” for its action.•While AG cannot conclude that the purpose fails the rational basis test, the language may leave town open to challenge.•AG urges consultation with town counsel.
What the AG said:
BY-LAW LANGUAGE: EXAMPLE 4
Exclusion of Accessory UsesMMTCs, acquisition, cultivation, possession, processing, transference, transportation, sale distribution, administration of marijuana, products containing or derived from marijuana, or related products shall not be considered accessory to any use.
WHAT THE AG SAID:
Towns cannot apply this provision is a way conflicts with the Act or regulations
Example: DPH issues hardship cultivation registrations to a qualifying patient who has limited access to a registered marijuana dispensary.
WHAT THE AG SAID:
CONTINUED - ACCESSORY USE
Registration allows patient or personal caregiver to cultivate a limited number of plants in an enclosed, locked facility.
CONTINUED -ACCESSORY USE
Regulations require applications for registration to include the single address to be used for cultivation of marijuana, which shall be either the registered qualifying patient’s or one personal caregiver’s primary residence.”
CONTINUED - ACCESSORY USE
Therefore, town cannot prohibit hardship cultivation at patient or caregiver primary residence on basis it is not an allowable accessory use.
REGARDING MORATORIA A.G. SAYS:
• Town should ordinarily be able to complete planning process for limited (albeit new & complex) use of RMDs by 12/30/14, a full 19 months after publication of DPH regulations.
• If longer than this, a moratorium likely to be determined unconstitutional as it is not tied to legitimate planning needs.
CONCLUSION• Review AG decisions in light of
any similar provisions in your own community’s proposed by laws
• Be cognizant of language regarding “where children congregate” – broad potential interpretation.