Commercial Recreational Marijuana Opt-Out Action Plan
UPDATE: November 16, 2017: Updates include addition of the excellent opt-out language passed by Longmeadow; and a link to a video of testimony to Bridgewater Town Council: “Commercial Marijuana Opt Out | What Every Elected Official Should Consider”
* UPDATE: October 31, 2017
Having received an interpretation from Beacon Hill we have updated this post to once again advise that both a General Bylaw and Zoning Bylaw with identical language be voted on by your community’s legislative body. Nowhere in the recreational marijuana law does it explicitly require a Zoning Bylaw as the confirming action of a local legislative body. Therefore a General Bylaw, only requiring a simple majority vote (51%) is believed to be sufficient to confirm a community’s desire to Opt-Out or ban recreational marijuana establishments. Zoning Bylaws require a super majority (2/3 affirmative) vote to pass. It is recommended, out of an abundance of caution, that your community in addition to voting a General Bylaw vote on a Zoning Bylaw (after voting on the General Bylaw). Regardless of the outcome of the vote on the Zoning Bylaw, the General Bylaw is expected to be sufficient to uphold an Opt-Out intention of a community.
UPDATE: October 9, 2017
After the passage of House Bill No. 3818 that became the recreational marijuana law in July 2017, the process for opting out of commercial recreational marijuana activity has changed slightly since Westborough became the first of about 30 communities to do so before this compromise law was signed by Governor Baker. A growing number of more than 100 communities have either Opted-Out or have passed moratoriums on recreational, commercial marijuana establishments citing among their reasons:
- incompatibility with the character of their community
- addiction for profit during a national addiction and overdose epidemic
- health and mental health harms of heavy use
- increased availability and reduced perception of harm as a driver of youth and heavy general population use
- increased community costs of enforcement, regulation, and hospitalization
- some revenue is not worth taking
The law applies differently to each community based on whether that community voted in opposition (No On Q4 Community) or support (Yes on Q4 Community) of ballot Question 4 in November 2016.
Here is our understanding now based on information from the Massachusetts Municipal Association:
No On Q4 Communities:
Communities who voted “No” on Q4 in Nov 2016 have until December 31, 2019 to Opt-Out of recreational marijuana commerce (after that date they must follow the same procedure for Yes on Q4 communities).
These communities are required to prevail on one vote to OptOut locally (since local voters already voted against commercial marijuana in Fall 2016, enabling further local legislative action to Opt Out):
- a vote of the local legislative body to approve a zoning ordinance or bylaw Opting Out.
(For example, the City of Lawrence is a No on Q4 Community that has Opted-Out by virtue of a unanimous vote of their City Council).
Yes on Q4 Communities:
Communities with “Yes” on Q4 majority votes in Fall of 2016 are required to prevail on two votes to OptOut locally:
- a vote of the voters at the ballot box, enabling:
- a vote of the local legislative body to approve a general bylaw or ordinance and (optionally) a zoning or bylaw Opting Out.
On opting out in a Yes on Q4 Community, the MA Municipal Association opinion of their lawyers is that based on the law (House 3818), passage of a ballot question is only an “enabling” action, that gives authority to the local legislative body to go through the process of adopting a zoning by-law.
Their opinion, and that of MA town counsels, is based on subsection (e) of Section 3:
(e) If an ordinance or by-law must be submitted for approval pursuant to subsection (a)(2), the following procedures will be followed:
(1) The city solicitor or town counsel shall prepare a fair and concise summary of the proposed ordinance or by-law which will make clear the number and types of marijuana establishments which will be permitted to operate under the proposed ordinance and by-law and shall be included on the ballot.
(2) A ballot shall be prepared asking “Shall this [city or town] adopt the following [by-law or ordinance]? [solicitor/counsel summary] [full text of by-law or ordinance]
(3) If the majority of the votes cast in answer to the question are in the affirmative, the city or town may adopt the by-law or ordinance, but if the majority is in the negative, the city or town shall not adopt the by-law or ordinance.
A ballot question under this subsection may be placed on the ballot at a regular or special election held by the city or town by a vote of the board of selectmen or city or town council, with the approval of the mayor, and subject to a municipal charter, if applicable.
How to Proceed:
Step 1: Check this list to find out if your community was one of the 90 “No On Q4 Communities” in November 2016. Follow the requirements for either a “No on Q4” or “Yes on Q4” community listed above.
Step 2: Figure out who your local legislative body is: City Council? Town Council? Town Meeting? Continue reading