Healey rejects several local moratoriums on marijuana businesses
The office of Massachusetts Attorney General Maura Healey has rejected attempts by three towns to extend their moratoriums on marijuana businesses into 2019, a setback for municipalities that have pushed the limits of state law in their efforts to delay the opening of cannabis firms.
Healey’s Municipal Law Unit on Monday struck down measures passed by Natick, Plympton, and Rochester that would have extended freezes on pot shops and other licensed marijuana facilities in those towns into 2019.
The rulings mean that in Plympton and Rochester, where initial moratoriums have already expired, pot businesses must be allowed to start applying for local approval immediately. Natick must start allowing applications beginning in January, after its initial moratorium expires.
The rulings by Healey’s office essentially say that the three towns were not engaged in legitimate, ongoing planning processes that justified their requests for more time — for example, drafting zoning maps to determine where marijuana facilities may locate — and instead were simply trying to kick the can down the road.
“Under Massachusetts law, the extension of a temporary moratorium must be tied to an ongoing planning need,” Healey spokeswoman Margaret Quackenbush said in a statement.
State law does allow municipalities to indefinitely ban marijuana firms — and many have. But those that haven’t instituted a ban must either accept cannabis businesses or impose a moratorium of limited length while local officials work to devise local zoning rules and license requirements. It is not legal, according to Healey’s office, for local officials to use moratoriums merely as a delay tactic.
For example, Healey’s office said in one decision issued Monday that “it does not appear [Plympton] took any active steps to initiate a planning process at any time between May of 2017,” when the town implemented a yearlong moratorium on cannabis firms, and May of 2018, when the town voted to extend the moratorium another year.
“Although the Board of Selectmen hosted an October, 2017 presentation by [the town’s lawyer] concerning the different options for regulating recreational marijuana, we are informed that the Planning Board did not formally consider the issue during the moratorium period,” Margaret Hurley, who heads Healey’s Municipal Law Unit, wrote in the ruling. “Even to date, there has been no proposed zoning by-law discussed at any Planning Board hearing, and no proposed general by-law considered for inclusion on any town meeting warrant.”
Plympton officials did not immediately respond to a request for comment.
In a similar ruling rejecting Rochester’s attempt to extend its moratorium, Hurley said that town’s planning board had informally considered a draft bylaw allowing recreational marijuana businesses, but never scheduled a hearing. Town officials did not immediately return a request for comment.
Also in the Rochester ruling, Hurley pointedly rebuked arguments floated earlier this year by the Massachusetts Municipal Association that long moratoriums are justifiable because scheduling special Town Meetings this fall to approve marijuana zoning would be too expensive for smaller communities and result in low turnout.
Hurley concluded, the “Board of Selectmen is empowered by statute to call a special town meeting at any time,” and “the town must actively engage in the planning process in order to justify the need for an extension of the temporary moratorium.”
The Massachusetts Municipal Association did not immediately have a comment.
Natick Town Administrator Melissa Malone said her community would rush to implement a licensing process and draft host community agreements for marijuana operators to sign before January, when its moratorium will now expire. Unlike Plympton and Rochester, Natick has already approved zoning for marijuana firms — which along with a too-vague Planning Board hearing notice is why Healey’s office rejected the town’s extended moratorium.
“This is new territory for everyone, but obviously the town is respectful of the Attorney General’s guidance,” Malone said. “We have no plans to contest it, because we do have the necessary zoning in place. I think that Town Meeting [voters who approved the extended moratorium] just wanted to have the most amount of time to deal with something that’s very nuanced and complex.”
Healey’s office, which routinely reviews town bylaws to ensure they are legal, did approve one extended moratorium Monday, saying the town of Carver can keep its freeze on marijuana operators in place until June 30, 2019.
In Carver’s case, Healey’s office said, Town Meeting voters rejected a zoning scheme put forward by planning officials, meaning it makes sense to give the town “breathing room” to “complete the thoughtful planning process it began many months ago.”
“It appears reasonable for Carver to have adopted an extension of the moratorium through June 30, 2019 in light of the need to continue its planning process after a failed Town Meeting vote,” Hurley wrote, though she cautioned the ruling “does not mean that this office will approve every proposed moratorium.”
The Attorney General’s office said 13 towns have so far passed moratoriums extending into 2019; of those, Hurley has rejected three and approved two, while the remainder will be decided in the coming months. Healey’s office does not review measures passed by cities.
Healey, who opposed legalization in 2016, came under intense fire in June for allowing Mansfield to prolong its freeze on cannabis businesses through June 2019 — a reversal of an earlier decision that established Dec. 31, 2018 as the latest possible date for local moratoriums to end.
Days later, following a public backlash and meetings with attorneys for cannabis operators, her office issued a more detailed ruling clarifying that it would not automatically approve extended moratoriums, but consider them on a case-by-case basis.
“The Attorney General is doing the citizens who voted for legalization a service by holding towns’ feet to the fire when it comes to their pace of zoning,” said Jim Borghesani, a lobbyist for marijuana firms who was previously the spokesman for the 2016 marijuana legalization campaign, of the decisions issued Monday. “This is very welcome news, to know that towns will not be able to just extend and extend moratoriums without a legitimate reason for doing so.”