Massachusetts lawmakers are defending their new system for giving municipalities control over recreational marijuana businesses, following criticism from legal experts that it could be ripe for court challenges and from pot advocates who fret it will leave the drug unavailable in large swaths of the state.
Under Question 4, the marijuana ballot measure approved by voters last November, local officials could not ban or sharply limit licensed pot facilities in their cities and towns without first holding a community-wide referendum. But under a package of changes voted on by the House and Senate Wednesday, elected leaders of towns where voters rejected Question 4 will now be able to impose those tight restrictions on their own.
Several legal specialists said establishing different processes for different municipalities may violate the Massachusetts Constitution’s “equal protection” clause, putting any decisions made under the new law at legal risk. Pot industry advocates warned that the specter of litigation, combined with greater powers some municipal officials now have, could encourage marijuana shops to avoid cities and towns where voters did not support the ballot question.
That in turn could leave the newly legal drug unavailable in large sections of the state, as many neighboring communities rejected Question 4, together forming large pot-unfriendly regions on Cape Cod, the South Shore, and in Northeast Massachusetts.
State Senator Patricia Jehlen and State Representative Mark Cusack, two of the six legislators who drafted the bill, insisted the system was legal.
“Our lawyers have assured us repeatedly that this is constitutional,” Cusack said. “It’s not an arbitrary standard. It’s based off a vote of the people.”
Cusack said officials in cities and towns whose residents rejected Question 4 could still hold a community referendum if they wanted. He also cited as precedent the 2013 vote on whether to approve a casino at Suffolk Downs that was held just among residents of East Boston, not those of the whole city.
The extent of local officials’ power to block proposed marijuana facilities will be critical in determining pot’s availability to consumers. Already, more than 100 of the state’s 351 cities and towns have imposed moratoriums or bans on licensed pot operations.
Industry proponents and urban mayors such as Martin J. Walsh of Boston have warned that granting municipal leaders further control could encourage marijuana shops to avoid municipalities where voters did not support the November ballot question, concentrating them in a handful of cities while leaving the newly legal drug largely unavailable in other sections of the state.
“A lot of municipalities are already abusing the privileges they have by passing sweeping moratoriums and bans,” said Christopher Ray, an attorney for the Hoban Law Group who represents marijuana investors and companies. “It’s of huge concern to our clients, and it creates massive uncertainty in the market.”
Not all legal experts agree that the Legislature’s new local control scheme is bound for a showdown in court, however. Several attorneys who represent cannabis interests predicted state courts would let the system stand because it does not discriminate against citizens on the basis of legally protected traits such as race or sex.
“There’s no protected class involved,” said Kevin Conroy, who helps lead the marijuana practice of Boston law firm Foley Hoag. “It’s a group of people suing because they feel like they deserve the right to marijuana.”
Even so, the main group representing local governments worries the political bargain would encourage pot companies to submit hurried applications in those communities that supported Question 4 before their leaders can organize referendums. Legislators disagreed, saying their bill would allow cities and towns to hold community-wide votes at any time.
Several municipal officials expressed mixed feelings on the deal. While the bill clarifies when and how communities can hold referendums, they said, the prospect of legal challenges from rejected pot applicants gave them pause. And, the officials lamented, after a months-long legislative process characterized by uncertainty, there are still more questions about the rollout of the marijuana industry.
“It gives us the comfort we were looking for in terms of what type of ballot process is necessary,” said Adam Chapdelaine, the town manager of Arlington, where 57 percent of residents approved Question 4. “But our town attorney thinks there are immediate constitutional concerns” under the equal protection clause.
“If you have a ballot question that’s voted up or down and then invalidated, it creates unrest and confusion,” Chapdelaine added.
Arlington will now move forward with a town-wide referendum to limit or ban pot shops, depending on input from officials and citizens. Chapdelaine said he believes such votes are less likely to be challenged in court than limits imposed by town councilors or selectmen.
A referendum “guarantees that your electorate knew exactly what it was voting on,” he said. “It strikes me that we’re on the safer side of the constitutional question.”
In Braintree, where 54 percent of voters rejected Question 4, Mayor Joseph Sullivan applauded the Legislature’s compromise.
“As a community that voted ‘no,’ why should we have to go through the whole local referendum exercise when we had 75-percent-plus turnout last year and our municipal election this year will probably have 20 or 25 percent turnout?” he said. “I believe in democracy, but I’m comfortable with local officials stepping up, taking a position, and being held accountable.”