Valerio Romano, Attorney with VGR Law Firm, PC.
On November 6, 2012 voters legalized the medical use of marijuana in Massachusetts with 63% of voters in favor. Today, 3 ½ years later, there are only 6 Registered Marijuana Dispensaries (“RMDs”) open, serving a population of almost 6.8 million people. While the state is adding over 2,000 patients a month, RMDs are not opening at a comparable rate. Some of the fault for the slow roll-out lies with difficulties in fundraising with the non-profit model. Yet, another culprit are cities and towns refusing to allow RMDs to site within their borders.
I spend a few nights a week in front of one board or another around the Commonwealth. Too often I hear from a selectperson or police chief, “we are not ready to have a dispensary. The law is too new.” Well the law isn’t new. The MA AG’s Office, on March 13, 2013, issued two separate decisions that allowed cities and towns to enact temporary moratoriums, and subsequent zoning bylaws that consider the regulations for the medical use of marijuana program, which had not been issued then. Those moratoriums were valid until the middle of 2014, and are no longer permissible.
The Department of Public Health, rightfully, doesn’t want to issue RMD registrations to site in communities that will effectively block that business from ever opening. Drawing from its authority in 105 CMR 725.100(B)(3)(f) the DPH requires that an applicant for a dispensary registration obtain a “letter of support or non-opposition” from the proposed host community. While this letter is an application requirement, it is not a regulatory requirement. There is no criteria that a host community must follow. There is no review process for a host community that declines to issue such a letter. The courts are simply not a viable option for resolving any such failure of a host community to act.
But why aren’t they acting? Certainly, perception is reality when it comes to politics, and the perception, albeit not the reality, is that a dispensary is bad for the community. But aren’t host communities being short-sighted by simply failing to act and sticking their heads in the sand on the issue of whether a dispensary will open up in their community eventually? The answer is simply YES.
The letter of support or non-opposition requirement is one which gives cities and towns incredible leverage when dealing with applicants. Today, while this application requirement exists, a host community can force applicants to make a great number of promises to site in their community. These promises include, continued payment of property tax, in the event that a 501(C)(3) designation might be obtained following a future rescheduling of marijuana under federal law; a guarantee of local hiring; complete transparency with local law enforcement; approval of an RMD’s managers, much like a liquor establishment; local law enforcement and other municipal agency’s approval of operating and security plans; and finally host community payments seemingly authorized under MGL c. 44 section 53A.
Various patient groups around the Commonwealth are pushing back against the letter of support or non-opposition requirement. It is inevitable that it will be removed from the process. When that happens an applicant will site a dispensary pursuant to local zoning, with no extravagant promises of host community payments and local control. If not for the sake of patients who need access, then for their own best interests, host communities should be proactive in siting an RMD now, and not simply pretend like marijuana for medical use isn’t a reality. The governing bodies of these communities are doing themselves, their constituents, and sick people in the Commonwealth a disservice by failing to issue the letters to competent groups.