The Town of Westborough Massachusetts was the first to opt out of commercial marijuana commerce under the Regulation and Taxation of Marijuana Act passed by a small majority in November 2016. Westborough’s ballot question passed with 80% of the vote of its voters. Its General Bylaw passed at Town Meeting with 87% the vote and its Zoning Bylaw with 88%. Here’s how Westborough did it but it was no easy feat. Here’s why.
The MA Marijuana Law was written by and for the marijuana industry. Their ultimate aim is to maximize consumption in order to maximize profit. With each push into new states, the marijuana industry has tweaked ballot petitions based on issues that have become obstacles to maximizing their markets in other states. One of many examples is Local Control.
Local Control refers to the right of cities and towns to decide on what land uses they allow in their communities.
In Colorado, the marijuana law passed there can be described as an “Opt In” law. This meant that if a community wanted to host pot shops, grow houses, THC-infused food manufacturers, etc. they would decide that as a community. This decision would be made by a vote of its local governing authority.
As a result two thirds of communities chose NOT to “Opt In”. They therefore do not have to host marijuana establishments. This clearly limits the marijuana industry’s reach in Colorado. They were not going to make that mistake in Massachusetts. Instead, they wrote their law so that they immediately have the right to capture every city and town in Massachusetts.
The Massachusetts Marijuana Law then is an “Opt Out” law. It allows communities to opt out but in a deliberately confusing and costly way.
The language of the law that pertains to opting out reads (emphasis added): “…a city or town may only adopt an ordinance or by-law by a vote of the voters of that city or town if the ordinance or by-law:
- (i) prohibits the operation of 1 or more types of marijuana establishments within the city or town;…”
The term “by a vote of the voters” is usually understood to be an action of voters on a ballot question at a local election. Because of this, it has been interpreted by some local town counsels (lawyers) that a question whether or not to “opt out” should appear as a ballot question during a local election.
HOWEVER, “ordinance or by-law” is a term that describes the passage of a local law that is usually passed by the local legislative body. The local legislative body in Massachusetts, is usually either Town Meeting or City Council. For this reason, town counsels are advising that, in addition to action on a ballot at a local election, the community put an article on the Warrant for action by the local legislative body.
AND, because the industry-written Massachusetts Marijuana Law is not specific as to the nature of the ordinance or by-law, and because land uses are usually governed by Zoning By-Laws, counsel is recommending that there be both a General Bylaw and Zoning Bylaw.
So to “Opt Out” of the “Massachusetts Marijuana Law” communities are being advised to take three actions:
- Vote on a ballot question in the next election
- Vote on a General Bylaw at the next session of Town Meeting (or Town Council)
- Vote on a Zoning Bylaw at the next session of Town Meeting (or Town Council)
The Town of Medfield opted-out shortly after with 81% of the vote at the ballot box. Stoughton and Reading both opted out at the ballot box with 68% of the vote. 76 other towns in Massachusetts, that we know of, are reportedly considering opt-outs or moratorium.