Two recent unanimous Massachusetts Supreme Court decisions confirm the supremacy of state marijuana laws over local zoning restrictions. The decisions also indicate a tendency by the Supreme Court of Justice to turn to the state’s policy of legalizing the sale of marijuana in the face of restrictive local orders.
Both cases involve the same entity, CommCan, Inc., which is trying to open a marijuana retail operation in Mansfield, Massachusetts, facing opposition from neighbors and the city. The first case was the result of a change in law in the state of Massachusetts. When Massachusetts initially legalized medical marijuana in 2012, medical marijuana dispensaries were to be nonprofit entities. In 2017, state law changed to allow existing dispensaries and applicants to convert to nonprofit corporations. However, Mansfield’s zoning ordinance did not change with state law and continued to purport to restrict the city’s marijuana dispensaries to those operated by non-profit corporations.
Upon review, the Supreme Court of Justice upheld the Mansfield Zoning Council’s decision to issue a special permit to CommCan, ruling that the change in state law prevailed over the zoning by-law. The court found that by maintaining the requirement that medical marijuana dispensaries be not-for-profit, the bylaw violates one of the objectives of the 2017 law amendment. “By repealing the law 2012… and replacing it with a provision allowing for-profit entities to operate marijuana processing centers… the legislature has made clear its intention to allow for-profit entities to distribute medical marijuana . This legislative objective cannot “be achieved despite [the town’s] … Regulation on the same subject. Therefore, the Supreme Judicial Court concluded that the City could not be forced by an adjacent landowner to revoke the special permit that the Mansfield Zoning Council had previously issued to CommCan.
In the second case, the City of Mansfield itself contested the applicability of a different section of the 2017 law to CommCan. The law gives municipalities the power to regulate the number and location of marijuana retail establishments within their borders, except that municipalities could not prevent the conversion of a marijuana dispensary for the purpose medical devices “engaged in the cultivation, manufacture or sale” of marijuana in a retail marijuana. dispensary. The city argued that the law allowing medical marijuana dispensaries to convert to retail marijuana dispensaries only applies to facilities “engaged” in the sale of marijuana, and that is because CommCan had only made plans for the dispensary and had no actual sales yet. , CommCan was not “engaged” in the sale of marijuana, so the conversion law did not apply.
The Supreme Judicial Court interpreted the expression “engaged in” to mean “to be involved in an activity; busy; busy ”and found that CommCan’s activities made it clear that it was“ involved ”in its marijuana business. The court also considered the legislative intention to facilitate the conversion of medical marijuana dispensaries to retail. Therefore, the Court rejected the City’s argument.