CANNABIS LAW IN MASSACHUSETTS: WHETHER THE TOWN APPROVAL APPARATUS PUNISHES COMMERCIAL CANNABIS OPERATORS

Towns and cities are the first gatekeepers in the commercial cannabis licensing process.[1]After a potential cannabis business entity finds a suitable location usually in a mixed use industrial zoning area,[2]the entity must request a host agreement from the town and city.[3]If approved, then the entity submits a cannabis licensing application to the Massachusetts Cannabis Control Commission (“CCC”) for final review.[4]Upon approval from the CCC, the cannabis business entity may open a cannabis business at the location permitted by the town or city.[5]Currently, only two cannabis retail stores are open in Massachusetts.[6]Because a town’s approval is the first step in the licensing process, the town ultimately controls the possibility for any cannabis business.[7]

Although local control of businesses is often a positive method to allow residents to exercise authority over their properties and taxes, local cannabis regulations may lead to arbitrary and capricious business approvals for commercial cannabis operators.[8]This begs the questions of what business entities should receive the town’s approval and how should this decision process be made.[9]When a town is looking at the potential of millions of dollars in tax revenue per year, this decision might be too overwhelming to be made at the local level.[10]In order to avoid the potential for arbitrary and capricious behavior at the local town level, the CCC should provide for oversight of the initial town approval process to allow all applicants an equal opportunity and prevent nepotism.[11]Therefore, the CCC should create guidelines for applicants to appeal a town approval as these town approvals currently lack an appeals process or transparency on the decision making process.[12]

For commercial cannabis operations in town and cities, the profits outweigh the potential disadvantages.[13]The cannabis retail sales tax will create an astonishing tax resource for state and town necessities,[14]and commercial cannabis operations will regulate the industry to stop the dangers of black market sales and of private residential cannabis cultivation.[15]Thus, because the town cannabis approval apparatus can be arbitrary and capricious to commercial cannabis operators, a rational approach is recommended for town cannabis commercial approval through a robust CCC state oversight and appeals process.[16]

[1]Regarding Laws Governing Adult Use Marijuana in Massachusetts. Massachusetts Government Homepage on the Cannabis Control Commission(2018), https://mass-cannabis-control.com/cnb-faqs/#toggle-id-1.

[2]Fall River Town Zoning Bylaws (2018).

[3]Regarding Laws Governing Adult Use Marijuana in Massachusetts. Massachusetts Government Homepage on the Cannabis Control Commission(2018), https://mass-cannabis-control.com/cnb-faqs/#toggle-id-1.

[4]Id.

[5]Id.

[6]Id.

[7]Id.

[8]But seeFranson v. City of Woburn, 2016 WL 4778392 (Mass. Land Ct. Sept. 14, 2016) (spot zoning ruled legal and not arbitrary and capricious).

[9]Id.

[10]Id.

[11]Id.

[12]Regarding Laws Governing Adult Use Marijuana in Massachusetts. Massachusetts Government Homepage on the Cannabis Control Commission(2018), https://mass-cannabis-control.com/cnb-faqs/#toggle-id-1.

[13]Legal Pot Shops in Mass. Sold More Than $2.2 Million in Their First Week, (Nov. 27, 2018), https://www.wbur.org/news/2018/11/27/northampton-leicester-recreational-marijuana-sales.

[14]Id.

[15]Cannabis is Legal in California: What’s Different? https://www2.calstate.edu/csu-system/news/Pages/Cannabis-Is-Legal-in-California—What-Has-Changed.aspx(Apr. 20, 2018).

[16]But seeFranson v. City of Woburn,2016 WL 4778392 (Mass. Land Ct. Sept. 14, 2016) (spot zoning ruled legal and not arbitrary and capricious).

 

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