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Pot shop scores key zoning victories in Massachusetts high court

The rulings may indicate a shift toward accepting marijuana and sweeping away local restrictions.

BOSTON (CN) — In a pair of test cases for how much control local governments can have over the burgeoning marijuana industry, the Massachusetts high court handed two victories Monday to a pot shop owner who has been fighting neighbors and a town for the right to operate a for-profit weed business.

With marijuana now completely legal in 17 states and medical marijuana permitted in 19 others, the question of how far local regulation can go is becoming a hot topic nationwide.

The Massachusetts cases turned on how to interpret specific language in state laws, but the larger picture is that the court wants to embrace the state’s 2016 referendum completely legalizing pot and brush aside attempts by municipalities to use picky rules to restrict access, said Jason Talerman of Mead, Talerman & Costa in Millis, Massachusetts, the winning attorney in both cases.

“The mood has changed” since 2017 when these cases were filed, he said. Back then, “there was a sense that the sky was falling” among a lot of conservatives, but today, even in the state’s more conservative communities, pot sales “have become kind of a nothingburger.”

Talerman points to Uxbridge, “a middle-of-the-road working-class community” that has enthusiastically embraced pot sales as a way to bring in jobs and revenue. In Millis, a town of only 7,800 people, marijuana contributes $2 million annually to the community, the attorney said.

But not everyone agrees that the cases reflect a trend. Benjamin Tymann of Tymann Davis in Boston, who represented the pot shop’s unhappy neighbor in one of the cases, insisted that the court’s decision in his case “does not portend any significant shift in how the courts will balance local control with the legislative interest in promoting the availability of cannabis statewide.”

The ruling is limited to its “unique particulars,” he said.

Monday’s cases involved the town of Mansfield, a community of 23,000 about halfway between Boston and Providence. Most of Mansfield is a quiet suburb but it’s also the site of a 20,000-seat performing arts center. And it sits next door to Foxborough, which regularly attracts more than 60,000 visitors for New England Patriots games.

Ellen Rosenfeld started a nonprofit medical marijuana dispensary in the town at a time when both state law and the town zoning bylaws required such dispensaries to be nonprofit. In 2017, however, the state began allowing for-profit dispensaries, and in 2018 Rosenfeld converted her operation, then still in start-up mode, to for-profit status.

A neighboring business took her to court, arguing that, while the state law had changed, the town bylaws hadn’t, and therefore she shouldn’t be allowed to set up a for-profit shop.

But the Massachusetts Supreme Judicial Court ruled unanimously in Rosenfeld’s favor, holding that the state law preempted the town bylaws.

“The Legislature evinced its clear intent to allow for-profit entities to distribute medical marijuana,” the ruling states. “This legislative purpose cannot be achieved in the face of [Mansfield’s] by-law on the same subject."

In another case, the town itself argued that a state law allowing medical dispensaries to convert to for-profit status only applied to facilities that are “engaged” in pot sales. The town claimed that because Rosenfeld had only drawn up plans for her dispensary and didn’t yet have any actual sales, she wasn’t “engaged” in selling pot.

But the court said that “engaged” means to be involved in or occupied with something, and “it hardly can be said that the plaintiffs were not ‘involved in’ and ‘occupied’ by the sale of marijuana, even though the dispensary is not yet operational.”

Perhaps ironically, both opinions were authored by the state’s chief justice, whose last name is Budd.

All seven justices on the court were appointed by the current Republican Governor Charlie Baker, who vigorously opposed the 2016 referendum legalizing recreational marijuana in the state and drew harsh criticism when he shut down recreational marijuana sales during the pandemic.

Talerman notes that the movement to legalize pot is no longer limited to liberal states such as Massachusetts and Oregon.

“The use of pot is becoming well-accepted, like a casual six-pack drinker,” he said. “People are more at ease with it and these decisions reflect that this is the new normal. It’s here, it’s not going anywhere, and the court is saying, ‘Let’s not throw up artificial barriers; let’s figure out how to manage it instead of just saying no.’”

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