Zoning as Trench Warfare: Towns in Massachusetts

Zoning Towns

Ever since the Supreme Court’s decision in Euclid v. Ambler (1926), zoning power has proved a potent means by which public officials at the municipal level can make street-by-street decisions with enormous impact on the lives of the town’s residents, and with impact as well on issues usually associated with state or national deliberations.

This is plainly the case today, as at the state level barriers to the lawful trade in marijuana continue to fall. The federal government’s attitude is, so far, an equivocal one, and much may yet turn there on the outcome of the next presidential election. Meanwhile, among municipalities, there is a mixture of acceptance of and resistance to the direction of change, such that the developing industry will have to fight for acceptance on a town by town and in some respects literally on a street by street basis.

This has already become obvious in Massachusetts, in the two years since voters legalized medical marijuana in 2012. Almost immediately thereafter the town of Wakefield, in the greater Boston area, defined “medical marijuana treatment center” within its use table, and then declared it a prohibited use in all the town’s zones, completely banning medical marijuana from its streets. This raised the obvious question: can it do that?

In March 2013, the state’s Attorney General, Martha Coakley, ruled that it cannot.  If any one town can do this, she wrote, then “presumably all could do so,” and if all towns could do so, the state law would be of no effect.

On the other hand, and at the same time, Coakley made the point that towns will be allowed to make some uses of their Euclidean powers in this connection. Specifically, she approved a by-law enacted by the Town of Burlington that imposed a temporary moratorium on the opening of any such treatment centers there pending further study of the zoning side of the issue.

 

Skipping Forward

In 2014, the zoning situation in the state is a town-by-town patchwork. It is made even more confusing than it might be by the fact that the law strictly distinguishes between cultivation facilities on the one hand and dispensaries on the other, and that towns seem in general to be more open-minded toward the former than the latter. Residents of South Hadley, coming together at that most romanticized of New England institutions, the town meeting, voted in favor of a zoning by-law governing medical marijuana cultivation facilities back in November 2013.

This bylaw extended the town’s understanding of “manufacturing” in the zoning code so that it covers the cultivation, preparation and packaging of marijuana. In the words of the Town Supervisor, Michael Sullivan, “We’re just considering it like any other industry.” Well, yes, one has to add, except that classifying the cultivation of a particular plant as industry (rather than as agriculture) does still suggest something unique.

In January 2014 the town’s planning board discussed a site review plan for South Hadley’s Gaylord Street.

Sullivan said in a recent interview that since that time agents of Patriot Care “have been over there [Gaylord Street] with their architects and contractors. They have in mind a 25 to 35 thousand square foot site that will have the capacity to serve three dispensaries.”

One of those dispensaries would be in Lowell, the other two remain unspecified. [Lowell would be a heck of a ride for a patient or caretaker looking for medical marijuana somewhere near this place of cultivation. It is about 90 miles to the north and east of South Hadley, near the New Hampshire border.]

Sullivan said there are no plans for a marijuana dispensary in town, but he also said he understands that one is planned in Holyoke, just across the Connecticut River.

It is possible he was a bit behind the Holyoke news when Sullivan spoke with MJINews. Yes, a dispensary had been planned for Holyoke at one point but those plans fell through. At any rate, that town does continue to plan for the possibility. Its own zoning is in order.

 

Agawam, a Case Study

Special attention has to be devoted to the town of Agawam, a small town on the Connecticut border, best known to the broader world as the site of Six Flags New England. [It’s also known to aficionados of 19th century social history as the birthplace of Annie Sullivan, the miracle-working teacher of Helen Keller.]

In Agawam, in October 2014, police seized $1.1 million in cash, and 118 pounds of marijuana, from a storage facility rented to a person officials haven’t yet named. So the War-on-Drugs aspect of marijuana policy obviously continues.

In the meantime, the Agawam Planning Board has repeatedly discussed what the town is going to do about newly lawful sales of medicinal marijuana.

One of the views expressed within the Planning Board was a straightforward one: “anywhere the ordinance now allows a pharmacy, we should in principle allow a state licensed MJ dispensary.” After all, pharmacies too are in the business of selling heavily-regulated substances, and these dispensaries do not seem in principle to be very different.

But that view did not prevail. The majority opinion was that the town should be a good deal more restrictive of these dispensaries than it is of pharmacies. Thus, in September 2013 the Planning Board (and later the City Council) approved of a moratorium, using the Burlington model Coakley had okayed more than a year before.

As the initial moratorium’s months wound down, the Agawam Planning Board took up the issue again, on April 3, 2014. By this time the legal department had prepared a zoning amendment providing that dispensaries shall be allowed in Industrial A and B districts with a special permit from the ZBA and site-plan review by the Planning Board. It included the proviso that the site must be at least 500 feet from the nearest school or “any other use in which children commonly congregate in an organized ongoing formal basis” and cannot abut a lot that is zoned for residences.

The amendment further contained this language, almost certainly legally superfluous, “Nothing in this Zoning Ordinance shall be construed to supercede federal or state laws governing the sale and distribution of narcotic drugs.”

 

Agawam’s City Council

The Planning Board approved the work of its staff, and passed all this along with its recommendations to the City Council. That body, in turn, approved a final ordinance on May 5.

In addition to the “standard requirements for uses requiring a Special Permit and Site Plan Approval,” the final ordinance imposes several marijuana-specific restrictions. For example, dispensaries are to be marijuana dispensaries only: marijuana is not to be dispensed as part of any hybrid business. No marijuana may be consumed on premises. Further, no sales or distributions are to take place after 8 PM or before 8 AM. There are also rules about signage, about the notification of various authorities in the event  of a change in ownership or management, and a range of other matters. Arguably no one item on the list is overly onerous or unprecedented.

But the whole list, as well as the considerable political angst that accompanied the drafting of this ordinance, gives the impression that this is going to be a very closely watched industry, at all levels, and that in its spread and its struggle for public acceptance a lot of slow trench warfare lies ahead.

 

Christopher C. Faille, a Jamesian pragmatist, was one of the first reporters taking the hedge fund industry as a full-time beat, at the turn of the millennium, with HedgeWorld. His latest book, Gambling with Borrowed Chips, treats of common misunderstandings of the crisis of 2007-08.

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