On November 8, 2016, Massachusetts voters passed a ballot initiative known as “Question 4” making recreational cannabis legal in the state. Shortly thereafter, the first laws authorizing various commercial establishments and allowing non-medical use of cannabis by adults were enacted on December of 2016, with additional amendments and laws regulating recreational cannabis being enacted on in July of 2017 (collectively referred to herein as the “Cannabis Laws”).
The Cannabis Laws created the five-member Cannabis Control Commission (the “CCC”), which is a state agency charged with the administration of the cannabis industry, including promulgating regulations relating to products, labeling, advertising and potency, as well as issuing licenses and determining what conditions or restrictions may be required for any such license. As part of the CCC’s review process in issuing a license, the CCC is to evaluate whether the applicant is in compliance with the local bylaws or ordinances.
The Cannabis Laws and CCC’s regulations provide a general framework in which the local municipalities may pass bylaws and ordinances governing the marijuana/cannabis industry. Massachusetts municipalities may elect to ban cannabis facilities outright, or pass ordinances or bylaws regulating cannabis facilities, or pass a temporary moratorium to postpone adopting ordinances or bylaws regulating the licensing and permitting of cannabis facilities to provide more time to research, evaluate and adopt appropriate by-laws or ordinances.
Many municipalities in Massachusetts have chosen to ban cannabis facilities entirely. However, a significant number have elected to adopt a temporary moratorium while they grapple with the many issues that come along with the licensing and permitting process of cannabis facilities. A smaller number have already adopted regulations permitting such facilities, and according to CCC’s website, approximately twenty retail cannabis facilities have been licensed and permitted across the state. CCC’s website also shows that there are 279 additional pending license applications, over 100 provisional licenses in the inspection phase or the licensure fee is pending, and approximately 66 final licenses issued from April 1st through the end of June.
If municipality chooses to allow cannabis facilities, the municipality may regulate the time, place and manner in which cannabis facilities may operate, in accordance with the Cannabis Laws. For instance, ordinances or bylaws cannot prohibit the conversion of a medical facility to an adult recreational facility, cannot prohibit the transportation of marijuana or marijuana products in and through the municipality and cannot impose a buffer greater than 500 feet around K-12 public and private schools.
The Cannabis Laws define and establish a variety of different cannabis facilities, including but not limited to marijuana cultivator, marijuana product manufacturer, marijuana retailer, marijuana research facility and independent testing laboratory, each which require a specific license from the CCC and local approval from the municipality. Beyond the parameters that the Cannabis Laws set forth for municipal regulation of cannabis facilities, each municipality is tasked with considering a number of different factors for cannabis facilities. Each municipality must determine where each license type or use will be permitted or prohibited and whether it will require zoning relief, such a special permit or other special review process, or if it will be permitted as of right within certain zoning districts. Additionally, each municipality may adopt specific standards that the applicable reviewing board is to consider when it is deciding to permit a marijuana facility, such as hours of operation, aesthetic guidelines, including, but not limited to, building type and size, signage, parking, site design requirements and buffer zones between other cannabis facilities and other uses, such as schools.
The result of these decisions will create procedures that vary widely across municipalities. For instance, a city or town may select a specific zoning district in which cannabis facilities are permitted, such as an industrial or specific business zone. If cannabis facilities are permitted as of right in the designated zoning district, an applicant may only have to submit for a building permit which is typically reviewed administratively by the building and/or planning departments. In the alternative, most municipalities are likely to require zoning relief, such as a special permit, for cannabis facilities to be located within a zoning district. The special permit process involves a lengthier application process to the applicable reviewing board, including submitting a complete application package, complying with public notice requirements (which often includes sending notice to abutting neighbors and posting notice in a locally circulated publication or newspaper), and a public hearing, or in some instances, multiple public hearings. Each town or city must also choose the appropriate reviewing board or commission to review and approve cannabis facilities. A town or city may choose to use the already established special permit reviewing board (such as a zoning board, planning board or city council), or it may establish a separate cannabis reviewing commission.
For cannabis facilities requiring zoning relief, it is important to assemble an experienced team, including attorneys, engineers and architects. Hinckley Allen’s Land Use & Development Group has a deep bench of attorneys with experience in navigating the complex zoning and planning regulations and working closely with regulatory authorities and local governments, both key steps to achieving permitting and approval for businesses and developments in the newly enacted and ever changing regulatory world surrounding cannabis facilities. For questions about the above topic, please contact Leah C. Rubega or William J. Squires III.
Subscribe to our newsletter, and read more from our recent real estate newsletter:
- Opportunities & Trends in Real Estate Private Equity
- The Expanding Definition of Retail: Incorporating Alternative Uses in Retail Shopping Centers
- Tariffs, Taxes, and Trade Wars: Using Material Price Escalation Clauses to Mitigate Risk in an Uncertain Political Climate
- Qualified Opportunity Zones: What We Know From New Regulations
- The Unintended Consequences of Accommodating the Commercial Holdover Tenant
Follow Hinckley Allen on Twitter and LinkedIn for the latest news and insights.