Hazy Legal Landscape Providing Angst to Town Planners
Massachusetts voters overwhelmingly approved the Medical Marijuana Ballot Initiative/Question 3 (click for full text), opening the door to the opening of at least 35 medical marijuana dispensaries throughout the state in 2013. But, the bigger question is whether the same voters and town leaders will support the opening of dispensaries on their own street corners and downtown areas. Many towns and cities are already gearing up for a fight over the locations, as one marijuana law firm is already scheduling seminars on how to open up dispensaries in Framingham. In litigious Massachusetts, we can certainly expect aggrieved abutters to challenge the opening of what they call “pot shops” next to their residences and businesses. The actual opening of marijuana dispensaries could be years away due to litigation and opposition.
Up To 35 Marijuana Dispensaries in 2013
The ballot law authorizes the opening of up to 35 dispensaries in 2013, and the Department of Public Health retains authority to open more later if demand is there. The law requires that at least one dispensary must be located in each of Massachusetts’ 14 counties, but caps each county at no more than 5 locations. The law seeks an accelerated rollout of dispensaries. Treatment centers can file applications as early as January 1, 2013, and open up to 120 days later, subject to the rollout of regulations by the state Department of Public Health.
Possible Target Locations
Based on size, county seat, and demographics, likely locations for marijuana dispensaries in Eastern Massachusetts would include:1
- Boston, Roxbury/Dorchester/Mattapan, South Boston (Suffolk County)
- Cambridge, Lowell, Framingham, Marlborough, Waltham, Woburn (Middlesex County)2
- Lawrence, Salem, Peabody, Lynn (Essex County)
- Dedham, Quincy, Brookline, Franklin (Norfolk County)
- Brockton, Plymouth, Middleboro (Plymouth County)
- Taunton, New Bedford (Bristol County)
- Worcester (Worcester County)
A Smoky Legal Landscape
The ballot provision, however, is very murky as to how cities and towns are supposed to handle the potential influx of dispensaries. This is causing town leaders to scramble for legal guidance as to whether they should either attempt to block locations wholesale or enact special zoning districts regulating the placement of dispensaries.
As for any attempt to block the opening of marijuana centers, the question will have to be answered by the courts as the law is silent as to whether municipalities have this power. The legal issues surrounding municipal zoning and siting of medical marijuana dispensaries will likely follow similar cases involving methadone clinics, alcohol treatment centers/sober houses and even adult entertainment venues — all uses which are legal, yet subject to reasonable zoning governance. Additionally, treatment centers could seek protection from the American’s With Disabilities Act and other disability laws which protect cancer, HIV, glaucoma and other qualified patients who are entitled to receive medical marijuana.
I am of the opinion that a municipality cannot enact an ordinance or by-law which will block a marijuana dispensary from opening in town as long as the dispensary has complied with all DPH regulations. The town, however, can utilize its zoning powers to regulate where in town such a dispensary can be located, so long as the town does not enact illegal “spot zoning” in so doing.
While medical marijuana may have passed fairly easily on Election Day, it will probably be some time before Massachusetts sorts out all the legal issues as to where these dispensaries should go.
I am going to keep this post updated with news articles and posts about the new law and reaction to it, below.
- What We Learned from Today’s Boston City Council Hearing on Medical Marijuana
- Boston City Council Discusses Locations of Marijuana Centers
- Town of Reading Votes to Ban Marijuana Dispensaries
- Quincy Marijuana Ordinance Draws Attention of Cannabis Coalition
- Wakefield Moves to Ban Medical Marijuana in Town
Richard D. Vetstein, Esq. is an experience Massachusetts zoning and real estate attorney. If you are concerned or have questions about the new Medical Marijuana Law, please contact him at [email protected].