Wendy L. Mickel, Town Clerk Town of Westborough 34 West Main Street Westborough, MA 01581 THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL CENTRAL MASSACHUSETTS DIVISION 10 MECHANIC STREET, SUITE 301 WORCESTER, MA 01608 February 27, 2017 Re: Westborough Special Town Meeting of October 17, 2016 - Case # 8155 Warrant Articles # 2, 3 (Zoning) Dear Ms. Mickel: (508) 792-7600 (508) 795-1991 fax www.mass.gov/ago Article 3 We disapprove certain text in Article 3 because it conflicts with Chapter 369 of the Acts of 2012, An Act for the Humanitarian Medical Use of Marijuana ( Medical Marijuana Act ) and/or Chapter 334 of the Acts of 2016, as amended by Chapter 351 of the Acts of 2016 ( Marijuana Act ). As more fully explained below, we disapprove the text prohibiting personal cultivation of marijuana inside a residence (see pp. 3-4) and the text prohibiting off-site delivery of medical marijuana (see p. 4). 1 We approve the remaining text in Article 3, including a requirement that Marijuana Establishments obtain special permit approval. I. Summary of Article 3. Under Article 3 the Town voted to amend its existing regulations for Medical Marijuana Treatment and Dispensing Facilities (Section 5700) to add more regulations of medical marijuana and to add new regulations for the new use of Marijuana Establishments (as defined in the by-law but generally any type of licensed marijuana-related business). In general, the amended Section 5700 allows Marijuana Establishments, by special permit from the Planning Board, in the same Mixed Use Industrial District (IC) where Medical Marijuana Treatment and Dispensing Facilities are allowed. II. Attorney General s Standard of Review and General Zoning Principles. Pursuant to G.L. c. 40, 32, the Attorney General has a limited power of disapproval, and [i]t is fundamental that every presumption is to be made in favor of the validity of municipal by-laws. Amherst, 398 Mass. at 795-96. The Attorney General does not review the 1 In a decision issued February 10, 2017 we approved Article 2.
policy arguments for or against the enactment. Id. at 798-99 ( Neither we nor the Attorney General may comment on the wisdom of the town s by-law. ) Rather, in order to disapprove a by-law (or any portion thereof), the Attorney General must cite an inconsistency between the bylaw and the state Constitution or laws. Id. at 796. As a general proposition the cases dealing with the repugnancy or inconsistency of local regulations with State statutes have given considerable latitude to municipalities, requiring a sharp conflict between the local and State provisions before the local regulation has been held invalid. Bloom, 363 Mass. at 154 (emphasis added). The legislative intent to preclude local action must be clear. Id. at 155. Massachusetts has the strongest type of home rule and municipal action is presumed to be valid. Connors v. City of Boston, 430 Mass. 31, 35 (1999) (internal quotations and citations omitted). Article 3, as an amendment to the Town s zoning by-laws, must be accorded deference. W.R. Grace & Co. v. Cambridge City Council, 56 Mass. App. Ct. 559, 566 (2002) ( With respect to the exercise of their powers under the Zoning Act, we accord municipalities deference as to their legislative choices and their exercise of discretion regarding zoning orders. ). When reviewing zoning by-laws for consistency with the Constitution or laws of the Commonwealth, the Attorney General s standard of review is equivalent to that of a court. [T]he proper focus of review of a zoning enactment is whether it violates State law or constitutional provisions, is arbitrary or unreasonable, or is substantially unrelated to the public health, safety or general welfare. Durand v. IDC Bellingham, LLC, 440 Mass. 45, 57 (2003). Because the adoption of a zoning by-law by the voters at Town Meeting is both the exercise of the Town s police power and a legislative act, the vote carries a strong presumption of validity. Id. at 51. Zoning has always been treated as a local matter and much weight must be accorded to the judgment of the local legislative body, since it is familiar with local conditions. Concord v. Attorney General, 336 Mass. 17, 25 (1957) (quoting Burnham v. Board of Appeals of Gloucester, 333 Mass. 114, 117 (1955)). If the reasonableness of a zoning bylaw is even fairly debatable, the judgment of the local legislative body responsible for the enactment must be sustained. Durand, 440 Mass. at 51 (quoting Crall v. City of Leominster, 362 Mass. 95, 101 (1972)). Nevertheless, where a zoning by-law conflicts with state law or the constitution, it is invalid. See Zuckerman v. Hadley, 442 Mass. 511, 520 (2004) (rate of development by-law of unlimited duration did not serve a permissible public purpose and was thus unconstitutional). We emphasize that our disapproval of certain text in Article 3 in no way implies any position on the policy views that led to the passage of the by-law amendment. The Attorney General s limited standard of review requires her to approve or disapprove by-laws based solely on their consistency with state and federal law, not on any policy views she may have on the subject matter or wisdom of the by-law. Amherst v. Attorney General, 398 Mass. 793, 795-96, 798-99 (1986). III. Personal Cultivation of Marijuana. As further explained below, we disapprove certain text in the amended Section 5700 that prohibits the personal cultivation of marijuana inside a residence because this text conflicts with laws adopted pursuant to two state-wide marijuana related ballot questions: the Marijuana Act approved by the voters in 2016, and the Medical Marijuana Act approved by the voters in 2012. 2
The Marijuana Act allows for the limited cultivation of marijuana within one s home for personal use as follows: Section 7. Personal use of marijuana (a) Notwithstanding any other general or special law to the contrary, except as otherwise provided in this chapter, a person 21 years of age or older shall not be arrested, prosecuted, penalized, sanctioned or disqualified under the laws of the commonwealth in any manner, or denied any right or privilege and shall not be subject to seizure or forfeiture of assets for: *** (2) within the person s primary residence, possessing up to 10 ounces of marijuana and any marijuana produced by marijuana plants cultivated on the premises and possessing, cultivating or processing not more than 6 marijuana plants for personal use so long as not more than 12 plants are cultivated on the premises at once; The amended by-law conflicts with the Marijuana Act because the by-law prohibits the growing of marijuana inside a residence, as follows (emphasis supplied): 5751 No marijuana or marijuana based product shall be sold or grown or cultivated, interior or exterior, of a residential dwelling unit or residential district. We disapprove and delete the text in bold and underlined above ( or grown or cultivated, interior or ) from Section 5751 because of this conflict with the Marijuana Act. [Disapproval #1 of 4]. The amended by-law at Section 5758 Cultivation Activities also regulates the personal cultivation of marijuana as follows (emphasis supplied): 5758 Cultivation Activities: Cultivation, as defined in this Bylaw, by any resident, qualifying patient, personal caregiver, Marijuana Establishment or Medical Marijuana Treatment and Dispensing Facility in any location other than where specifically permitted shall be disallowed. We disapprove and delete the text in bold and underlined above ( resident, qualifying patient, personal caregiver, ) because this text conflicts with the Marijuana Act and with the Medical Marijuana Act. [Disapproval #2 of 4]. As discussed above, the Marijuana Act authorizes the cultivation of marijuana in one s home for personal use. The Medical Marijuana Act, and the implementing regulations, also allow for the hardship cultivation of medical marijuana at a patient or personal caregiver s primary 3
residence when access to a Registered Marijuana Dispensary is limited. (See 105 CMR 725.035); see also AGO Decision issued July 22, 2013 in Westborough Case # 6630, p. 8, incorporated by reference herein). The Town s attempt to prohibit the personal cultivation of marijuana for personal use would interfere with the operation of these Acts, and we disapprove and delete this text on that basis. Finally, in the decision issued July 22, 2013 regarding Case # 6630 (Annual Town Meeting of March 16, 2013) we disapproved and deleted the text in underlined and bold below from the by-law s definition of Marijuana Cultivation: Marijuana Cultivation: The process of propagation, including germination, using soil, hydroponics, or other mediums to generate growth and maturity. The intended process of bringing a plant or other grown product to maturity for harvesting, sale, refining or use as an ingredient in further manufacturing or processing. This definition encompasses marijuana cultivation related to Medical Marijuana Treatment and Dispensing Facilities, personal cultivation by qualifying patients or cultivation by personal caregivers on behalf of qualifying patients or others. It appears that these deletions were not reflected in the text of the by-law in Article 3 on the warrant for the Special Town Meeting of October 17, 2016. We again disapprove and delete this text from the definition of Marijuana Cultivation because it conflicts with the Medical Marijuana Act and implementing regulations, as further explained in our original decision dated July 22, 2013 which is attached hereto and incorporated by reference. [Disapproval #3 of 4] IV. Prohibition of Off-Site Delivery of Medical Marijuana and Retail Marijuana. The amended Section 5700 prohibits the off-site delivery of medical marijuana and the off-site delivery of retail marijuana except as allowed in the special permit, as follows (new text in bold): 5754 Off-site delivery prohibited: All sales and distribution of medical marijuana by a licensed Medical Marijuana Treatment and Dispensing Facility shall occur only upon the permitted premises, and the registrant shall be strictly prohibited from delivering medical marijuana to any person at any other location. In addition, the delivery of general retail, non-medical, marijuana to any consumer at any location shall be strictly prohibited unless specifically permitted through the special permit process governed by this Section. A. Medical Marijuana Delivery. We disapprove and delete the following text from Section 5754: Off-site delivery prohibited: and and the registrant shall be strictly prohibited from delivering medical marijuana to any person at any other location. [Disapproval #4 of 4]. We previously disapproved and deleted this text in our decision issued July 22, 2013, which we incorporate by 4
reference herein. As explained in our July 22, 2013 decision, a by-law prohibiting off-site delivery of medical marijuana conflicts with the Medical Marijuana Act and the implementing regulations. (105 CMR 725.000) (DPH regulations). 2 B. Retail Marijuana Delivery. Section 5754 of the by-law allows for the off-site delivery of retail marijuana only as allowed by special permit, as follows: In addition, the delivery of general retail, non-medical, marijuana to any consumer at any location shall be strictly prohibited unless specifically permitted through the special permit process governed by this Section. We approve this text, but caution the Town that it may not prohibit all off-site delivery of retail marijuana. Chapter 334 of the Acts of 2016, the Regulation and Taxation of Marijuana Act, ( Act ), passed by voters on November 8, 2016, protects the transportation of marijuana as follows: No city or town shall prohibit the transportation of marijuana or marijuana products or adopt an ordinance or by-law that makes the transportation of marijuana or marijuana products unreasonably impracticable. G.L. c. 94G, 3 (C). Although the Town allows for the off-site delivery of marijuana by special permit, the Town should consult closely with Town Counsel during the special permit application process to ensure that any conditions imposed by the special permit granting authority do not make the transportation of marijuana unreasonably impracticable in conflict with the Act. 2 We also note that the Department of Public Health has proposed amendments to the regulations that are currently in the public comment stage. In part, the amendments are intended to allow RMDs to deliver marijuana and MIPs not only to patients and personal caregivers at home, but also to institutional caregivers at caregiving institutions, such as medical facilities, hospice providers and nursing facilities. See September 14, 2016 Memorandum from Eric Sheehan, Director, DPH Bureau of Health Care Safety and Quality, to Monica Bharel, Commissioner, and Members of the Public Health Council re: Proposed Amendment of 105 CMR 725.000, pp. 3-4, attached to this decision. Although these proposed amendments are not final, they serve as further evidence of a regulatory intent that RMDs be allowed to deliver medical marijuana to offsite locations. 5
Note: Pursuant to G.L. c. 40, 32, neither general nor zoning by-laws take effect unless the Town has first satisfied the posting/publishing requirements of that statute. Once this statutory duty is fulfilled, (1) general by-laws and amendments take effect on the date these posting and publishing requirements are satisfied unless a later effective date is prescribed in the by-law, and (2) zoning by-laws and amendments are deemed to have taken effect from the date they were approved by the Town Meeting, unless a later effective date is prescribed in the by-law. cc: Town Counsel Joel Bard Very truly yours, MAURA HEALEY ATTORNEY GENERAL Margaret J. Hurley By: Margaret J. Hurley Chief, Central Massachusetts Division Director, Municipal Law Unit 10 Mechanic Street, Suite 301 Worcester, MA 01608 (508) 792-7600 ext. 4402 6