The use of medical marijuana and the licensing of what are now called Medical Marijuana Treatment Centers (MTCs) was enacted by the Commonwealth as Question 3 on the November 2012 state ballot, Chapter 369 of the Acts of 2012 (“Chapter 369”). In 2013, the Attorney General’s Municipal Law Unit disapproved numerous bylaws attempting to prohibit the use, finding that such prohibition conflicted with the intent of the statute. Since then, the Commonwealth has allowed Adult Use Marijuana and codified Chapter 369. Thus, it was an open question whether the Attorney General would continue to disapprove a bylaw prohibiting the use. This question has now been answered with a resounding yes.
At its Special Town Meeting in March 2024, the Town of Chesterfield adopted changes to a zoning bylaw that would prohibit MTCs in all zoning districts. After significant thought and consideration, the Attorney General for disapproved the bylaw on the basis that it conflicted with state law. MLU Decision, 11/12/24, #11326.
The Attorney General opined that the prohibition of MTCs frustrated the purpose of medical marijuana law, notwithstanding the numerous changes to the legal landscape facing MTCs and marijuana in general. The Attorney General noted that Chapter 369 prohibited punishment for the medical use of marijuana by qualifying patients and that there be one treatment center, but no more than five, located in each county. Chapter 369 also authorized an increase in treatment centers if this number was insufficient to meet patient needs. According to the Attorney General’s Office, the intent of Chapter 369 was to ensure that patients had reasonable access to medical marijuana. A municipality’s complete ban on MTCs would frustrate this purpose because if one Town could enact a ban, then presumably all Towns could.
The decision also held that neither G.L. c.94G, which regulates adult use marijuana, nor G.L. c.94I, which codifies Chapter 369 and regulates medical marijuana, expressly authorize a prohibition of MTCs. The Attorney General stated that medical marijuana has always been regulated differently than adult use marijuana. While c. 94G explicitly authorizes a municipality to prohibit “1 or more types of marijuana establishments,” the definition of “marijuana establishments” in the Cannabis Control Commissions regulations specially excludes MTCs. At the same time, c. 94I includes no express authorization to prohibit MTCs.
Finally, the Attorney General found that a ban on MTCs would prohibit colocation and create an unreasonable impracticability for marijuana retailers. Section 3 of G.L. 94G prohibits a city or town from adopting a bylaw that is unreasonably impracticable. A bylaw prohibiting MTCs within the town, but allowing marijuana retailers, would conflict with state laws that authorize medical marijuana and adult use marijuana to be sold at the same establishment. By preventing MTCs from collocating with an adult use retailer, the Attorney General found that the bylaw would result in an “unreasonably impracticable” regulation of marijuana retailers, as a retailer may need the MTC component to ensured continued business.
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