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.