Towns Can’t Ban Marijuana Shops; Zoning Moratoria OK

State House Dome (A2004533)Towns and cities may not use zoning to ban marijuana shops, according to a recent ruling by the Attorney General’s Office.

Zoning Ban Struck Down

As noted in a previous post, municipal officials have been considering zoning provisions aimed at prohibiting medical marijuana dispensaries, which could open later this year under the new Medical Marijuana Act approved by voters last fall. The Medical Marijuana Act provides that up to 35 dispensaries may be licensed in 2013 by the state Department of Public Health, with at least one to be located in each of the state’s 14 counties.

The Town of Wakefield passed a zoning amendment that would have banned marijuana dispensaries town-wide. In a March 13, 2013 decision, the AG’s Municipal Law Unit exercised its authority to disapprove the Wakefield bylaw as inconsistent with the Medical Marijuana Act.

Under the Home Rule Amendment to the State Constitution, a municipality may not enact a bylaw or ordinance that is inconsistent with the Constitution or state law. In its decision, the AG’s Office determined that because the Medical Marijuana Act intended that patients would have reasonable access to medical marijuana and that marijuana dispensaries would be distributed throughout the state, it would frustrate the purpose of the Medical Marijuana Act if one, or all, municipalities could prohibit marijuana dispensaries.

The AG’s Office noted that towns and cities may regulate marijuana dispensaries through zoning, but did not elaborate as to what degree of regulation is permissible.

Zoning Moratorium Approved

In a separate March 13, 2013 decision, the AG’s Office upheld the Town of Burlington’s temporary zoning moratorium prohibiting marijuana dispensaries until June of 2014. A zoning moratorium is designed to give a community time to study a new land use and to consider drafting successor zoning provisions regulating the use.

Next Steps

With this guidance in place, towns and cities will likely begin passing zoning provisions to regulate marijuana dispensaries, as the Town of Westborough did this weekend. Natick voters will be asked to consider a zoning moratorium at the April 23 Annual Town Meeting.

No marijuana dispensaries may open until the Department of Public Health issues governing regulations, which are due in May.

We will continue to keep you posted on this evolving area of municipal law.

About Brian Falk

Brian is an attorney in Mirick O'Connell's Land Use and Environmental Law Group. In his municipal practice, he counsels towns and cities in all areas of municipal law. He also represents private clients in land use permitting matters and real estate transactions. Brian lives in Milford with his wife and three sons.
This entry was posted in Municipal, Town Meeting, Uncategorized, Westborough, Zoning and tagged , , , , . Bookmark the permalink.

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