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Local Regulation of Cannabis Challenged by Residents and Property Owners in Massachusetts Zoning Case

November 4, 2016, Massachusetts voters passed legislation authorizing the legalization, regulation, and taxation of recreational cannabis in Massachusetts.  The Massachusetts statute allows cities and towns to adopt their own ordinances and zoning bylaws imposing reasonable safeguards on the operation of marijuana establishments.  The plaintiffs in a March 7, 2019 case sought a declaration that a general bylaw enacted by their Town, banning all non-medical cannabis uses, was invalid.

The plaintiffs in the case had purchased land in the Town to build an indoor marijuana growing and processing facility shortly after the Massachusetts statute was enacted.  In May of 2018, the Town adopted an amendment to its zoning, bylaw by two-thirds vote, allowing certain recreational marijuana uses in agricultural, industrial, and business districts by special permit.

A group of citizens and neighboring property owners, unhappy with the amendment, sought to rescind it through two articles.  The first article was another amendment to reverse the bylaw, which failed to obtain the required two-thirds majority vote.  The second was a general bylaw to ban all non-medical cannabis uses within the Town, which passed by a majority vote.  The plaintiffs filed an action in Land Court, arguing that the second general bylaw was an improper attempt to amend a use that was already regulated in its zoning bylaw.

The Land Court found that, to regulate certain cannabis uses as permitted under the Massachusetts statute, local municipalities had the option of enacting either zoning or general bylaws.  Once a municipality chooses to regulate recreational marijuana use by way of a zoning bylaw, however, it may only change that regulation by an amendment of the zoning bylaw.

In the case, the Town chose to enact a zoning bylaw amendment to regulate recreational marijuana use through the traditional mechanisms of zoning, namely use districts and special permits.  The court concluded that, having permitted marijuana use through its zoning bylaw, the Town could only change or bar that use by amending the zoning bylaw, which would require a two-thirds vote.  A general bylaw, such as the second article enacted by the Town, may only provide supplemental regulation of the marijuana use allowed under the zoning bylaw.

Accordingly, the court held that the Town could not bar the previously allowed zoning use, by passing another a general bylaw through a majority vote, essentially evading the two-thirds vote requirement to amend the bylaw.  The court ruled that the second article was beyond the scope of the Town’s authority, and thus invalid.

If you have concerns about local zoning laws, Massachusetts real estate lawyers at Pulgini & Norton can answer your questions.  We have experience in all areas of residential property law, including knowledge of land use and zoning regulations, the variance and permitting application process, home purchase and sale agreements, mortgages, and more.  Schedule an appointment to discuss your issue with a skilled property attorney by contacting us online or calling (781) 843-2200.

More Blog Posts:

Massachusetts Homeowner Brings Action Against Neighbor to Enforce Zoning Law, Massachusetts Real Estate Lawyer Blog, published August 21, 2017

Massachusetts Homeowners Successfully Establish Standing to Oppose Variance for Proposed Construction, Massachusetts Real Estate Lawyer Blog, published December 5, 2018

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