The fledgling cannabis industry has matured in the nearly five years since November 2016, when the Commonwealth legalized adult possession and use of marijuana. Unfortunately, not all municipalities’ zoning bylaws and ordinances have kept pace. In a recent 2-1 Appeals Court decision in Valley Green Grow, Inc. v. Town of Charlton, Justice Desmond highlighted some of the land use concerns that arise where local bylaws have lagged behind recent trends in land use permitting – specifically, the cultivation of marijuana.
M.G.L. c. 94G, §3 permits municipalities to adopt reasonable time, manner, and use regulations for recreational marijuana. It also permits municipalities to ban entirely one or more categories of marijuana establishments as defined in M.G.L. c. 94G, §2, if the proposed ban is approved as a ballot question by a majority of the voters in a local election. Across the Commonwealth, such regulations and prohibitions have appeared as both General Bylaws and Zoning Bylaws; the Valley Green Grow decision discusses the effect of a municipality’s regulatory silence on adult use marijuana establishments.
In Valley Green Grow, Inc., the plaintiff sought to develop a facility for the cultivation and related processing of marijuana on an agriculturally zoned parcel of land in the Town of Charlton. While Charlton has since adopted zoning regulations governing the cultivation of marijuana, the plaintiff secured a zoning freeze by the submission of a subdivision plan prior to the adoption of such regulations. The question, then, was whether to permit a marijuana cultivation facility in the absence of regulations defining this specific use.
As an initial matter, the Court noted, M.G.L. c. 40A, §3, ¶1, exempts certain agricultural uses from local zoning regulations, but was specifically amended in 2016, prior to the facts at issue in this case, to exclude the cultivation of marijuana from the statute’s protections. The Appeals Court found that this exclusion from M.G.L. c. 40A, §3, “does not bear on whether a town’s existing bylaw allows the growing and cultivation of marijuana in a town’s agricultural district.” The Court further stated that “[b]y simply failing to amend its bylaw to specifically address marijuana cultivation, the town did not eliminate the possibility that its cultivation of marijuana and reasonably related accessory uses would be allowed in the agricultural district under the existing bylaw.”
The Town’s bylaw permitted the following facilities, in an agricultural district, agricultural, floriculture and horticultural uses, specifically including, raising crops for sale or personal consumption and indoor commercial horticulture/floriculture establishments (e.g. greenhouses). The plaintiff’s proposed facility, which it is asserted will be an indoor commercial horticulture establishment, includes the construction of a 1 million square-foot building on a 94.6 acre parcel, which will contain 860,000 square feet of “closed greenhouses,” 130,000 square feet of postharvest processing area, and a 10,000 square foot cogeneration facility producing 18 megawatts of electricity as well as excess heat and carbon dioxide used in the cultivation of marijuana. The conclusion reached by the majority, although sharply criticized by the dissenting Justice, is that on the facts specific to this case, and in the context of the scope of the proposal, the proposed facility is (1) primarily an agricultural use permitted under the zoning bylaw, and (2) the “proposed cogeneration facility, incidental processing, and incidental manufacturing, when viewed as components of the entire indoor commercial horticultural use, are allowed as of right in the agricultural district.”
There may yet be an application for further appellate review in the SJC, and the dissenting opinion offers plenty of suggestions to work with, raising pointed concerns about the large size of the proposed facility and the potentially far-reaching application of the majority’s decision that the proposed use is at its core agriculture. The opinion is a reminder that zoning bylaws and ordinances require constant monitoring to ensure that newly-permitted land uses are consistent with the municipality’s character and land use priorities.