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Municipal Zoning Regulation and

Medical Marijuana in Massachusetts

PATRICIA A. CANTOR, ESQ.*

INTRODUCTION
By citizens petition at the November 2012 state election, Massachusetts
voters approved The Humanitarian Medical Use of Marijuana Act (the
Medical Marijuana Act) authorizing the medical use of marijuana in the
Commonwealth.1 Regulations promulgated by the state Department of
Public Health (DPH)2 require persons and entities operating under the
Medical Marijuana Act to comply with all local rules, regulations,
ordinances, and bylaws, among numerous other provisions. Given that
Massachusetts has 351 cities and towns functioning under Home Rule
authority3 and decentralized zoning,4 a wide range of municipal responses
to the Medical Marijuana Act and DPH Regulations have emerged. Some
municipalities have taken a completely hands-off approach, declining to
specifically regulate the medical use of marijuana as a matter of land use
control; others have sought to erect barricades, attempting to shut out all
such use. While this local control presents challenges to proponents seeking
to locate medical marijuana treatment facilities (as it does to developers in
general), it exemplifies Massachusetts traditional zoning practiceunless a

* Patricia A. Cantor, Esq., is a Member of Kopelman and Paige, P.C. in Boston,


Massachusetts. The firm specializes in public sector law and represents hundreds of cities and
towns throughout the state. Ms. Cantors practice focuses on litigation and advice on all aspects
of land use law as well as general municipal law.
1

Humanitarian Medical Use of Marijuana Act, MASS. GEN. LAWS ANN. ch. 94C app. (2014).
105 MASS. CODE REGS. 725.600(A) (2013).
3 See MASS. CONST. amend. art. LXXXIX, 6; see also MASS. GEN. LAWS ch. 43B, 120 (2012).
4 See MASS. GEN. LAWS ch. 40A, 117. See generally Historical Data Relating to the
Incorporation of and Abolishment of Counties in the Commonwealth of Massachusetts, SECRETARY OF
THE COMMONWEALTH OF MASS., http://www.sec.state.ma.us/cis/cisctlist/ctlistcounin.htm (last
visited Mar. 2, 2015). For general discussion of the history of zoning regulation in Massachusetts
and its relationship to the Home Rule Amendment, see generally MARK BOBROWSKI, HANDBOOK
OF MASSACHUSETTS LAND USE AND PLANNING LAW 2.0203 (3d ed. 2011).
2

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local bylaw or ordinance directly conflicts with state law, it will be upheld
under the dual principles of home rule and decentralized zoning.5
This Article will address some of the municipal responses to the Medical
Marijuana Act and DPH Regulations in the context of the particulars of
Massachusetts home rule and zoning law.
I.

Overview of the Medical Marijuana Act and DPH Regulations


A. The Medical Marijuana Act

The Medical Marijuana Act, which was approved by 60% of the votes
cast,6 states in section one, there should be no punishment under state law
for qualifying patients, physicians and health care professionals, personal
caregivers for patients, or medical marijuana treatment center agents for the
medical use of marijuana, as defined herein.7 The Medical Marijuana Act
provides that a medical marijuana treatment center is a not-for-profit
entity, as defined by Massachusetts law only, registered under this law, that
acquires, cultivates, possesses, processes . . . marijuana [and] products
containing marijuana . . . to qualifying patients or their personal caregivers.8
The Medical Marijuana Act defines debilitating medical condition,
dispensary agent, medical use of marijuana, personal caregiver, qualifying
patient, and other terms.9
Under the Medical Marijuana Act, medical use of marijuana means the
acquisition, cultivation, possession, processing, . . . transfer, transportation,
sale, distribution, dispensing, or administration of marijuana, for the benefit
of qualifying patients in the treatment of debilitating medical conditions
[also defined], or the symptoms thereof.10 A qualifying patient is allowed a
sixty-day supply of marijuana for medical use.11 Authorization of such a
supply to a qualifying patient may only be made by a licensed
physician . . . . in the course of a bona fide physician-patient relationship and
shall specify the qualifying patients debilitating medical condition(s).12

MASS. CONST. amend. art. LXXXIX, 1, 6. One of the time-hallowed distinctions in


Massachusetts local law is that cities have ordinances and towns have bylaws. See BOBROWSKI,
supra note 4, 1.02. Additionally, town bylaws are subject to review and approval by the state
Attorney General, but city ordinances are not. MASS. GEN. LAWS ch. 40, 32.
6 Massachusetts Election Statistics, SECRETARY OF THE COMMONWEALTH OF MASS.,
http://electionstats.state.ma.us/ballot_questions/view/2258/ (last visited Mar. 2, 2015).
7

MASS. GEN. LAWS ANN. ch. 94C app. 1-1 (2014). Section 2 of the Medical Marijuana Act
sets forth the definitions of the particular terms. Id. 1-2. The DPH Regulations further define
the relevant terms. 105 MASS. CODE REGS. 725.004 (2014).
8

Humanitarian Medical Use of Marijuana 1-2 (H).


Id. 2(C), (E), (I), (J), (K).
10 Id. 2(I).
11 Id. 1-2(K), (M).
12 Id. 2(N).
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The Medical Marijuana Act further requires registration of treatment centers


and dispensary agents by the DPH13 and permits hardship cultivation by a
qualifying patient or personal caregiver in certain circumstances. 14
The Medical Marijuana Act does not specifically address where a
medical marijuana treatment center may be located, except to provide that
the DPH may initially issue registrations for up to thirty-five statewide,
provided each county has at least one, but no more than five.15 While the
Medical Marijuana Act establishes a legal framework for permitting medical
marijuana treatment centers and allowing use of marijuana for medical
purposes, the law is broad and general, vesting the DPH with the
complicated task of creating and implementing a workable administrative
program.
B. The DPH Regulations
The DPH implemented the Medical Marijuana Act through more than
fifty pages of highly detailed regulations, which became effective May 24,
2013. Among the highlights: a Medical Marijuana Treatment Center is
now a registered marijuana dispensary (RMD),16 and a sixty-day supply
is ten ounces.17 The Regulations also establish comprehensive criteria for all
phases of the cultivation, use, and distribution of marijuana for medical
purposes, including regulation of certifying physicians, dispensary agents,
RMD operations, and security.18
For the purposes of local zoning regulation, the operative section,
Municipal Requirements, is title 105, section 725.600 of the Code of
Massachusetts Regulations, which provides:
(A)

An RMD and other registered persons shall comply with


all local rules, regulations, ordinances, and bylaws.

(B)

The Department [DPH] does not mandate any


involvement by municipalities or local boards of health
in the regulation of RMDs, qualifying patients with

13

Id. 9, 10.
Humanitarian Medical Use of Marijuana 11.
15 Id. 9(C). Another detail of Massachusetts local government law is that counties have very
little legal significance and some have been abolished. See Historical Data Relating to the
Incorporation of and Abolishment of Counties in the Commonwealth of Massachusetts, SECRETARY OF
THE COMMONWEALTH OF MASS., http://www.sec.state.ma.us/cis/cisctlist/ctlistcounin.htm (last
visited Mar. 2, 2015). Nonetheless, for the purpose of regulating marijuana, Massachusetts has
fourteen counties. Information and Historical Data on Cities, Towns and Counties in the
Commonwealth of Massachusetts, SECRETARY OF THE COMMONWEALTH OF MASS.,
www.sec.state.ma.us/cis/cisctlist/ctlistidx.htm (last visited Mar. 2, 2015).
14

16

105 MASS. CODE REGS. 725.004 (2014).


Id.
18 See id. at 725.000.
17

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hardship cultivation requirements, or any other aspects


of marijuana for medical use. However, nothing in 105
CMR 725.000 shall be construed so as to prohibit lawful
local oversight and regulation, including fee
requirements, that does not conflict or interfere with the
operation of 105 CMR 725.000.19

Additionally, as part of the application process, an applicant must


submit, if available:
a description of [the RMD] plans to ensure that the RMD is or will
be compliant with local codes, ordinances, and bylaws for the
physical address of the RMD and for the physical address of the
additional location, if any, including any demonstration of support
or non-opposition furnished by the local municipality.20

The final express reference to municipal authority in the DPH


Regulations states:
An RMD shall comply with all local requirements regarding siting,
provided however that if no local requirements exist, an RMD
shall not be sited within a radius of 500 feet of a school, daycare
center, or any facility in which children commonly congregate. The
500 foot distance under this section is measured in a straight line
from the nearest point of the facility in question to the nearest point
of the proposed RMD.21

These provisions detail how cities and towns have addressed zoning
regulation of marijuana for medical use.22

19 Id. at 725.600. While beyond the scope of this article, several municipalities have opted
through their boards of health to regulate the medical use of marijuana. See, e.g., Regulation to
Ensure Safe Access to Medical Marijuana in the City of Boston (Boston Pub. Health Commn
2013).
20

105 MASS. CODE REGS. 725.100(B)(3)(f).


Id. at 725.110(A)(14); see id. at 725.105(B) (regarding alternate sites).
22 As of June 27, 2014, the DPH issued provisional certification and advanced eleven
applicants to the grow-ready, processing-ready, and retail-ready review state. On November
7, 2014, the DPH moved an additional four dispensaries, for a total of fifteen, to the inspection
stage and invited five applicants to apply for locations in the open counties: Berkshire, Bristol,
Dukes, Franklin, Hamden, Nantucket, and Suffolk. Department of Public Health Announces
Additional Registered Marijuana Dispensaries Advancing to Inspection Phase, HEALTH AND HUM.
SERVICES
(Nov.
7,
2014),
http://www.mass.gov/eohhs/gov/
newsroom/press-releases/dph/additional-registered-marijuana-dispensaries-advancing.html.
According to the DPH, 97% of the state population lives within thirty miles of a provisionally
approved RMD. Department of Public Health Advances 11 Registered Marijuana Dispensary
Applicants to Next Phase of Selection Process, HEALTH AND HUM. SERVICES (June 27, 2014),
http://www.mass.gov/eohhs/gov/newsroom/press-releases/dph/11-registered-marijuanadispensary-applicants-advance.html.
21

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II. Home Rule


Massachusetts is a home rule state, having adopted an amendment to
its constitution in 1966.23 In essence, this means that local authority is
supreme, unless preempted by state law. The Home Rule Amendment
provides that a city or town may adopt local ordinances and bylaws to
exercise any power or function . . . which is not inconsistent with the
constitution or laws enacted by the general court.24
In determining if a local regulation is inconsistent with state law, the
Massachusetts appellate courts examine whether there is an express
legislative intent to forbid local activity on the subject or, in the absence of
an express intent, whether such an intent can be inferred because local
regulation would frustrate the purpose of the statute.25 Legislation that is
so comprehensive that any local enactment would frustrate the statutes
purpose has been held to preempt the field, thereby precluding local
action.26 The legal principle is that if the state has evidenced an intent to
occupy the field, then local regulation is precluded. However, where the
state has not preempted the subject, local regulation is permissible and may
even be more stringent than state law.27
As addressed below, these home rule principles are critical in assessing
whether particular local zoning regulation of marijuana for medical use is a
valid exercise of local authority.
III. Zoning
The state Zoning Act28 was adopted in 1975 and defines zoning as
ordinances and by-laws, adopted by cities and towns to regulate the use of
land, buildings and structures to the full extent of the independent

23 See MASS. CONST. amend. LXXXIX; MASS. GEN. LAWS ch. 43B (2014); Marshal House, Inc.
v. Rent Review and Grievance Bd. of Brookline, 260 N.E.2d 200, 20506 (Mass. 1970); Town of
Amherst v. Attorney Gen., 502 N.E.2d 128, 130 (Mass. 1986).
24 Town of Amherst, 502 N.E.2d at 130 n.6. The General Court in Massachusetts is the state
legislature; the state supreme court is the Supreme Judicial Court. MASS. CONST. pt. 2, ch. I,
1, art. I; About the Supreme Judicial Court, MASS. CT. SYS., http://www.mass.gov/courts/courtinfo/sjc/about/ (last visited Mar. 2, 2015).
25

Fafard v. Conservation Commn of Barnstable, 733 N.E.2d 66, 7172 (Mass. 2000).
Boston Gas Co. v. City of Somerville, 652 N.E.2d 132, 13334 (Mass. 1995) (invalidating city
requirements for street excavations by gas companies as inconsistent with state public utilities
regulation); Town of Wendell v. Attorney Gen., 476 N.E.2d 585, 589 (Mass. 1985) (invalidating
local regulation of pesticide).
26

27 See, e.g., Barlow v. Town of Wareham, 517 N.E.2d 146, 150 (Mass. 1988) (shell fishing
limitations permitted); Bloom v. City of Worcester, 293 N.E.2d 268, 280, 285 (Mass. 1973) (local
human rights ordinance upheld).
28 MASS. GEN. LAWS ch. 40A (2012). Although amended on several occasions since then, the
basic structure has remained unchanged.

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constitutional powers of cities and towns to protect the health, safety and
general welfare of their present and future inhabitants.29 The interests of
the Home Rule Amendment and the Zoning Act are the same, and
municipalities have wide leeway to craft land use controls that are
responsive to local needs. Thus, across the state lot area size, setbacks,
height, and other dimensional regulations vary by community. Similarly,
use regulations vary by city and town. This patchwork is the prevailing land
use policy under the Zoning Act.
However, there are some limits. In Zuckerman v. Town of Hadley, the town
had adopted a rate of development bylaw setting an annual cap on the
number of building permits that could be issued. 30 The Attorney General
approved the bylaw but, several years later, after challenge by a developer,
the Supreme Judicial Court invalidated it. Comparing such a permanent
restriction to a temporary moratorium on certain types of growth, 31 the
Court ruled that the bylaw effectively and impermissibly shifted the burdens
of growth from the town to its neighbors. As such, the bylaw did not serve
a permissible public purpose, and [was] unconstitutional.32 In contrast, a
time-limited zoning restriction was permissible to give communities
breathing room for periods reasonably necessary for the purposes of growth
planning generally, or resource problem solving specifically.33
IV. Attorney General Analysis and Rulings
When Massachusetts municipalities began adopting bylaws and
ordinances regulating the medical use of marijuana, the intersection of home
rule and zoning principles began to play out, particularly in towns. Because
town bylaws are subject to review and approval by the state Attorney
General, such review provides an initial reading of how such regulations
will be treated.34 The range of regulation ran the gamut from an attempt at
an outright ban to simple amendments to a table of uses incorporating the
new use. Some chose not to act at all. Cities took similar paths, but since their
ordinances are not reviewed by the Attorney General, no outside legal
review of an ordinances consistency with state law occurs unless and until

29

MASS. GEN. LAWS ch. 40A, 1A.


813 N.E.2d 843, 845, 850 (Mass. 2004).
31 Sturges v. Town of Chilmark, 402 N.E.2d 1346, 1350 (Mass. 1980); see also Collura v. Town
of Arlington, 329 N.E.2d 733, 73435 (Mass. 1975).
30

32

Zuckerman, 813 N.E.2d at 843, 851.


Id.; see Collura, 1329 N.E.2d at 737; Sturges, 402 N.E.2d at 1350.
34 MASS. GEN. LAWS ch. 40, 32 (2012). See generally Municipal Law Unit (MLU) Decision
Lookup, OFFICIAL WEBSITE OF THE ATTY GEN., www.mlu.ago.state.ma.us (last visited Mar. 2,
2015).
33

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the ordinance is challenged in court.35 Thus, since the Attorney General


reviews and approves, approves with comment, or disapproves a bylaw, we
have a preliminary indication of whether the bylaw may be upheld by the
courtsalthough, as illustrated by the Hadley case, there is no guarantee that
a court might ultimately invalidate a bylaw.
A. Total Ban InvalidatedTown of Wakefield
Taking the lead in the ban approach, on November 15, 2012just after
the Medical Marijuana Act was approvedthe town of Wakefield voted to
amend its land use table by prohibiting medical marijuana treatment centers
as a use in all zoning districts.36 Medical Marijuana Treatment Center was
defined as [a]n establishment that acquires, cultivates, possesses, processes
(including development of related products such as food, tinctures, aerosols,
oils, or ointments), transfers, transports, sells, distributes, dispenses, or
administers marijuana or products containing marijuana and/or related
supplies for ostensibly medical purposes.37
In the introduction to her detailed analysis of the bylaw, the Attorney
General stated the question as whether the towns complete ban on medical
marijuana treatment centers conflicted with state law. The Attorney General
found the ban would frustrate the purposes of [the Medical Marijuana Act]
to allow qualifying patients . . . reasonable access to medical marijuana
treatment centers. The Acts legislative purpose could not be served if a
municipality could prohibit treatment centers within its borders, for if one
municipality could do so, presumably all could do so.38
In reaching this conclusion, the Attorney General relied upon settled law
under the Home Rule Amendment and the Zoning Actthe bylaw was
invalid because it violated state law. Recognizing that the bylaw was entitled
to deference and that policy considerations were irrelevant, the Attorney
General found the bylaw had a sharp conflict with state law.39 Such conflict
was found, among other reasons, because the purpose of the Medical
Marijuana Act was to allow qualifying patients statewide access to treatment

35 Massachusetts city ordinances and town bylaws are not codified in any central place.
While most are now available on municipal websites, with official versions being kept by the
city and town clerks, research involves looking at each city or town separately. When the
Attorney General approves a bylaw, such approval is referenced by the town meeting article
designation and does not include the text of the bylaw. When the Attorney General comments
on or disapproves a bylaw, the text of the bylaw is usually set forth.
36

Letter from Mass. Atty Gen. to Town Clerk of Wakefield, at 2 (Mar. 13, 2013), available at
http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
37

Id.
Id. at 1.
39 Id. at 4 (emphasis in original).
38

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centers. If one city or town could ban such access, all could; thus the
statewide legislative purpose would be frustrated. 40
Nonetheless, the Attorney General recognized that municipalities are
not prohibited from adopting zoning by-laws to regulate medical marijuana
treatment centers, so long as such zoning by-laws do not conflict with the
Act (or regulations adopted to implement the Act).41 It was the total ban on
medical marijuana treatment centers that the Attorney General disapproved,
not their regulation.42
B. Moratorium UpheldTown of Burlington
The town of Burlington took another approach by adopting a
moratorium on medical marijuana treatment centers in January 2013. The
moratorium was temporary (through June 30, 2014) and identified the
following reasons in support, among others: the DPH Regulations were not
to be promulgated until May 2013; the town needed time to study and
consider the novel and complex issues raised by regulating medical
marijuana treatment centers; and the town intended to undertake a
planning process to consider amending its zoning bylaw to address those
issues.43
The Attorney General upheld the bylaw, stating the bylaw is consistent
with the Towns authority to impose reasonable time limitations on
development, at least where those restrictions are temporary and adopted to
provide controlled development while the municipality engages in
comprehensive planning studies.44 These elements, consistent with
established case law interpreting the Home Rule Amendment and the
Zoning Act, were markedly absent in the Wakefield bylaw and the different
outcome was predictable.
Many communities successfully followed Burlingtons lead and
adopted similar moratoria. However, in September 2013, the Attorney
General disapproved the second year of a moratorium voted by the town of
Canton. Approving a moratorium period from July 1, 2013 to June 30, 2014,
the Attorney General ruled that a moratorium extending to June 30, 2015

40

Id. at 6.
Id. at 1.
42 The town of Wakefield challenged the Attorney Generals ruling and the superior court
upheld it. Wakefield v. Coakley, No. 13-1684 (Suffolk Super. Ct. 2014). Wakefield did not
appeal.
41

43

Letter from Mass. Atty Gen. to Town Clerk of Burlington, at 12 (Mar. 13, 2013), available
at http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
44

Id. at 2.

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has no presently discernible legitimate zoning purpose, and risks


interfering with the operations of the [Medical Marijuana Act].45
C. Reasonable/Unreasonable RegulationTown of Westborough
The Attorney General conducted the first extensive substantive review
of a local zoning bylaw regulating medical marijuana in July 2013 for the
town of Westborough.46 The Attorney General approved restrictions
requiring a special permit for RMDs, limiting RMDs to the Towns Adult
Entertainment District, and imposing a 500-foot buffer zone from schools,
residences, and certain other uses, among other restrictions. The Attorney
General disapproved provisions that would have required a special permit
for hardship cultivation, prohibited off-site delivery of medical marijuana
products, and prohibited hardship cultivation at the qualifying patient or
personal caregivers primary residence.47
In conducting her review, the Attorney General analyzed and applied
the home rule and zoning principles discussed above. The Attorney General
found the disapproved provisions conflicted with the Medical Marijuana
Act and the DPH regulations because the DPH regulations require
hardship cultivation at the primary residence of a qualified patient or
caregiver, as well as independent laboratory testing.48 Since the provisions
in question would have made such protected activities impossible, the
Attorney General concluded they would frustrate state law.49 The Attorney
General further stated that a bylaw requirement for a special permit for
hardship cultivation fundamentally conflicts with the Act and regulations.50
Since the DPH comprehensively regulated hardship cultivation and
expressly allowed the activity at the qualifying patient or caregivers
primary residence, special permitting would have allowed a local authority
to second-guess the DPH and thus was in conflict with state law.51 The
Attorney General also found prohibiting off-site delivery conflicted with
state law because it would make it impossible for the RMD to comply with

45 Letter from Mass. Atty Gen. to Town Clerk of Canton, at 1 (Sep. 12, 2013), available at
http://www.mlu.ago.state.ma/us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
46

Letter from Mass. Atty Gen. to Town Clerk of Westborough, at 1 (July 22, 2013), available
at http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
47

Id. at 1, 610; 105 MASS. CODE REGS. 725.035 (2014).


Letter from Mass. Atty Gen. to Town Clerk of Westborough, supra note 46, at 2.
49 Id.
50 Id. at 6.
51 Id. at 67.
48

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the testing requirementif no independent laboratory will travel to the


RMD site for testing.52
While approving provisions requiring a special permit for an RMD in
the Adult Entertainment Zoning District, the Attorney General advised the
town as to the limits of such a discretionary proceeding. First, the Attorney
General cautioned that a denial based on marijuana being a controlled
substance under federal law would not be consistent with the authority of a
state special permit granting authority. The Attorney General stated:
Ordinarily it is the duty of public officials to act in accordance with duly
enacted state statutes, not to decline to implement them based on the view
that they are inconsistent with federal law, such determinations belong to
the courts.53 Second, the Attorney General observed that while the bylaw
complied with section nine of the Massachusetts Zoning Act and the towns
zoning special permit guidelines, such general standards may not establish
adequate guidance to the towns planning board in evaluating an RMD
application. The Attorney General thus suggested the town consider
amending the bylaw to list specific criteria.54 As to other bylaw provisions,
the Attorney General commented that a prohibition on RMD off-site signage
and advertising could not be applied to prevent a RMD from operating a
website, an activity permitted by the DPH Regulations.55
Finally, the Attorney General noted that the protection accorded certain
agricultural uses in section three of the Massachusetts Zoning Act included
the cultivation of marijuana for medical purposes; therefore, the bylaw could
not be applied inconsistently with state law. The Attorney General
concluded that to the point an RMDs cultivation activities constitute
commercial agriculture under the Zoning Act, the town cannot require a
special permit for the activity.56
D. Other/Emerging Issues
In the time-honored tradition of Massachusetts zoning regulation, cities
and towns have taken various approaches to regulating medical marijuana.
The town of Amherst sought to regulate signs and advertising by
prohibiting [t]he active marketing or (sic) marijuana or other drugs for
medicinal purposes.57 While the Attorney General did not disapprove the
prohibition, she questioned whether it conflicted with the Medical

52

Id. at 7.
Id. at 10.
54 Letter from Mass. Atty Gen. to Town Clerk of Westborough, supra note 46, at 1112.
55 Id. at 12.
56 Id. at 13.
57 Letter from Mass. Atty Gen. to Town Clerk of Amherst, at 2 (Apr. 22, 2014), available at
http://www.mlu.ago.state.ma.us/ (alteration in original) (emphasis omitted) (follow the
hyperlink in the left-hand column that corresponds with the date and town of the cited letter).
53

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Marijuana Act and the DPH Regulations allowance of the medical use of
marijuana. She also questioned whether the provision violated the First
Amendment to the United States Constitution regarding commercial
speech.58
According to the DPH Regulations, unless a municipality establishes
other setback requirements, the default setback for an RMD from a school,
daycare center, or any facility in which children commonly congregate is
500 feet.59 The town of Concord adopted a 3,000-foot setback from schools
and public libraries.60 An RMD was also limited to the towns MedicalProfessional District. The Attorney General approved Concords restrictions
without comment.61 Other communities have adopted similar setbacks from
various places in which children commonly congregate.62 The town of
Essex adopted a provision requiring an RMD to be 2,500 feet from any
school, pre-school, day care center, playground or athletic field or within
1500 feet of any residential dwelling.63 Similarly, in the town of Brookfield,
RMDs are limited to an overlay district with a 2,500-foot setback from
various land uses, including a library, public swimming pool, youth center,
and a video arcade. Brookfield also provides that the distance may be
reduced by up to 25% if the RMD would otherwise be effectively prohibited
within the Town.64 The Attorney General also approved this provision
without comment.65 In contrast, the city of Worcester adopted a 300-foot
setback from a residential district.66

58

Id. at 23.
105 MASS. CODE REGS. 725.110(A)(14) (2014); see also DEPT OF PUBLIC HEALTH, GUIDANCE
FOR MUNICIPALITIES REGARDING THE MEDICAL USE OF MARIJUANA 1 (Dec. 13, 2013), available at
http://www.mass.gov/eohhs/docs/dph/quality/medical-marijuana/municipal-guidance.pdf.
59

60 Letter from Atty Gen. to Town Clerk of Concord, at 2 (Sept. 25, 2013), available at
http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
61 Id.
62 105 MASS. CODE REGS. 725.110(A)(14) (2014).
63 See Warrant for Special Town Meeting, at 1 (June 3, 2014), available at
http://essexma.org/Pages/EssexMA_TownMeetingWarrants/ATM060314.pdf; Letter from Atty
Gen. to Town Clerk of Essex (Nov. 10, 2014), available at http://www.mlu.ago.state.ma.us/
(follow the hyperlink in the left-hand column that corresponds with the date and town of the
cited letter).
64

The Commonwealth of Mass. Annual Town Meeting Warrant, at 6 (June 6, 2014), available
at
http://www.brookfieldma.us/documents/Town%20Meeting/20140606%20Annual
%20Town%20Meeting%20Warrant%20-%20June%206,%202014.pdf.
65 See Letter from Atty Gen. to Town Clerk of Brookfield (July 15, 2014), available at
http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
66

See WORCESTER PLANNING BD., MINUTES OF THE PROCEEDINGS OF THE PLANNING BOARD OF
CITY OF WORCESTER 9 (Sept. 4, 2013), available at http://www.worcesterma.gov/agendasminutes/boards-commissions/planning-board/2013/20130904.pdf.
THE

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When the town of Wareham attempted to disqualify marijuana uses


from being an accessory use, the Attorney General approved the text, but
cautioned that the disqualification could not be interpreted or applied to
prevent a qualifying patient or caregiver from cultivating or using marijuana
as protected by state law.67 Similar to the cautions regarding the protections
granted to agricultural uses, the Attorney General stated: the Town cannot
prohibit hardship cultivation at a primary residence of a qualified patient or
personal caregiver on the basis that it is not an allowable accessory use,
because such a prohibition would frustrate the purpose of the Act, and
interfere with the operation of the regulations.68 In so doing, the Attorney
General invoked established home rule and zoning principles.
Another approach to regulation addresses the separation of cultivation
and retail sites. The DPH Regulations include all medical marijuana related
activities within the definition of an RMDrequiring a so-called seed to
sale or vertical integration model.69 However, DPH also permits a
cultivation location to cultivate marijuana for only that RMD, and up to
two additional RMDs under a common non-profit corporation.70 Some
applicants have sought to cultivate in rural communities and sell product in
more urban and suburban settings; municipalities have responded by
attempting to separate cultivation and sale. For example, the town of
Ipswich provides that a special permit is limited to cultivation, processing
and packaging, retail sale, or a combination. The Attorney General approved
the distinction.71 Notwithstanding that a special permit could be issued for
cultivation only under the Ipswich bylaw, the permit would be for an RMD
under the DPH Regulations. Since, as the Attorney General has recognized,
commercial cultivation of marijuana for medical use may be protected as
commercial agriculture under section three of the Massachusetts Zoning
Act, a special permit requirement for cultivation need only to be consistent
with that state law. The town of Pembroke adopted a bylaw requiring site
plan review for an RMD protected as an exempt agricultural use; the bylaw
was approved without comment.72 The DPH Regulations also require

67

Letter from Atty Gen. to Town Clerk of Wareham, at 12 (Feb. 24, 2014), available at
http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
68 Id. at 2.
69 105 MASS. CODE REGS. 725.004 (2014).
70 Id. at 725.105(B)(1).
71 See Letter from Mass. Atty Gen. to Town Clerk of Ipswich, at 1 (Dec. 4, 2013), available at
http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).
72

See Letter from Mass. Atty Gen. to Town Clerk of Pembroke, at 1 (Dec. 19, 2013), available
at http://www.mlu.ago.state.ma.us/ (follow the hyperlink in the left-hand column that
corresponds with the date and town of the cited letter).

2015

Municipal Zoning Regulation and Medical Marijuana

69

cultivation to occur in a secure, locked facility.73 Thus, some applicants are


opting for unused industrial or manufacturing facilities and not for the
typical agricultural open air fields. In either place, the protection granted
commercial agriculture in section 3 of the Massachusetts Zoning Act would
apply.

CONCLUSION
DPH issuance of RMD registrations has proceeded very slowly. Given
that the Medical Marijuana Act only allows thirty-five RMDs statewide and
the DPH Regulations look, at a minimum, for municipal non-opposition to
an RMD, most applicants have gravitated to communities with less
restrictive zoning and more municipal support. Thus far no applicant has
brought a legal challenge to any zoning ordinance or bylaw regulating
medical marijuana. But, as the industry develops, applicants may seek to
locate in areas where RMDs are prohibited or subject to significant setback
or other restrictions. Also, in jurisdictions where an RMD requires a special
permit, judicial review under section seventeen of the Massachusetts Zoning
Act would be available in the event of a denial. From the municipal
perspective, even for communities where no RMD is currently planned,
adopting an ordinance or bylaw specifically regulating an RMD provides a
framework for addressing the matter when the time comes.

73

See 105 MASS. CODE REGS. 725.105(B)(1)(c).