Top Massachusetts Court in a Haze Over Local Control of Cannabis – Courthouse News Service

The judges didn’t seem sure how far municipalities can go to stop the spread of weeds through zoning.

The Green Halo in Tucson, Arizona supplies dozens of pharmacies with cannabis-infused foods – like these 10 mg gums. (Courthouse News Photo / Brad Poole)

BOSTON (CN) – In a test case of how much control local governments can have over the burgeoning marijuana industry, the Massachusetts Supreme Court battled Monday to see if cities and towns could require some pharmacies to operate as not-for-profit organizations .

The pharmacy in this case “invested in a facility but now they can no longer operate it unless they get a new facility” in another part of the city that is divided into different zones, worried Justice Scott Kafker. “Even if they are completely legal.”

“A nonprofit has a bigger impact on the community than a nonprofit?” he asked skeptically.

But Justice Serge Georges Jr. suggested that zoning the city didn’t negate the state’s marijuana legalization law.

“I’m still struggling” with the zoning rule, he said. “There is still an opportunity here for people to operate in the city. … how is it rendered? [the state law] pointless? “

With marijuana now fully legal in 17 states and medical marijuana legal in 19 other states, how far local regulation can go is becoming a hot topic nationwide.

Monday’s case involved the city of Mansfield, a 23,000-strong parish about halfway between Boston and Providence. Most of Mansfield is a quiet suburb, but it’s also home to a performing arts center with 20,000 seats. And it’s next to Foxborough, which regularly draws more than 60,000 visitors to the New England Patriots Games.

Ellen Rosenfeld started a nonprofit medical marijuana dispensary in the city at a time when both state law and city zone bylaws required such pharmacies to be nonprofit. However, in 2017 the state began allowing for-profit pharmacies, and in 2018 Rosenfeld switched its business to for-profit status.

A neighboring company took them to court, arguing that although state law had been changed, the city’s statutes had not done so and the city should not be allowed to continue operating. But a trial judge ruled in her favor, stating that state law anticipated the city statutes.

State law should “improve access to medical marijuana,” the judge said. And “by restricting medical marijuana facilities to nonprofit organizations, the statute does not limit those facilities, but restricts them in such a way that the state expressly states that they should not be restricted.”

This argument interested Justice Frank Gaziano, who said that the state law “expressly eliminates non-profit organizations” and does not place any requirements on corporate identity. “But your zoning law does,” he told the neighbor’s attorney, Benjamin Tymann of Tymann Davis in Boston. “I do not understand that.”

Tymann replied, “It’s not like Mansfield banned medical marijuana dispensaries.” Rosenfeld could easily fix this simply by moving or returning to a nonprofit, he said. “All the church has done is perform its normal zoning functions.”

However, Kafker countered: “The state has determined that this is no longer a valid consideration. And they didn’t create a grandfather’s right for municipalities. “

Gaziano and Kafker, however, adopt a different tone when grilling Rosenfeld’s attorney Jason Talerman from Mead Talerman.

“Nobody forbids someone to sell marijuana. The problem is how much money you will make. That’s really what this is about, ”remarked Kafker.

And Gaziano said of prevention, “We are talking about whether the local law and the state statute can live in the same universe,” and he suggested that maybe they could.

Judge Dalila Wendlandt wanted to know the size of the alternate zone district that allowed for-profit pharmacies, suggesting that if the zone were too restrictive, there might be a preference.

“What if the zone was a city block? Wouldn’t that be in conflict with state law? ” She asked.

Talerman took up this point and began to describe the alternative zone area as “paper thin and very small”. He said the city was apparently only allowed to offer Rosenfeld a “stamp-sized district”.

Talerman once quoted an amicus letter written by an attorney who helped authorize the 2016 nationwide referendum approving marijuana for recreational use. Boston attorney Valerio Romano argued that there was no legal sense in making pharmacies charitable, as federal law prohibits pharmacies from receiving charitable tax breaks at the federal or state level.

But to say that this means that a city can’t need nonprofits, “can’t be true,” Kafker said flatly, and Talerman quickly backed away.

All seven of the court’s judges were appointed by current Republican Governor Charlie Baker. Baker vigorously opposed the nationwide referendum to legalize recreational marijuana and was harshly criticized for suspending recreational marijuana sales during the pandemic.

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