Legal weed details reviewed in Lenox

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LENOX — Since every Berkshire County community voted for last November's statewide ballot Question 4 legalizing recreational retail marijuana sales, residents will have a harder time limiting or banning pot shops than in towns elsewhere that voted "no."

That was the message from municipal law specialist J. Raymond Miyares during an informational forum at Town Hall last week organized by the Berkshire Regional Planning Commission.

During a 90 minute presentation to a crowd of about 150 people, Miyares explained a two-step procedure by voters in order to restrict or forbid retail marijuana establishments in a community that approved the statewide referendum allowing pot shops.

Dispensaries filling medical marijuana prescriptions cannot be prohibited by a community, the attorney pointed out.

In a presentation laced with humorous asides and wry observations, Miyares noted that last November's referendum question "was written by people who do not practice law in Massachusetts and included a lot of unusual language and terminology we have not seen in Massachusetts before and therefore caused some difficulties."

Miyares pointed out that "anywhere in zoning where a retail store is permitted, whether by special permit or whatever the rules are, they apply to a marijuana retail store." Likewise, a marijuana manufacturing facility is allowed wherever industrial facilities are permitted.

But cultivation facilities are not covered by laws permitting agricultural uses, state lawmakers have ruled, so marijuana "does not enjoy the protection" of state laws covering agriculture, he said.

Many local zoning boards have approved bylaws allowing cultivation under "other agricultural facilities," he added.

The state law allows towns or cities either to ban retail marijuana shops entirely or to impose limits on the number of establishments in any community based on the number of package stores or the number of medical marijuana treatment facilities.

But such restrictions require action by voters, Miyares said. "What's rather peculiar is that the process is based on whether a city or town voted yes or no on Question 4," he said. "This is the first time I've seen a statute that ties a legal consequence to a previous vote that the people doing that vote didn't know about."

Towns that voted yes on the ballot question will have a harder time limiting or totally banning retail shops — a town meeting vote (or City Council vote in Pittsfield or North Adams) by a two-thirds supermajority vote would be required for restrictions, as well as another ballot vote by a simple majority. But the votes can be taken in either order.

Miyares called it "lunacy" to hold the ballot question vote before the town meeting or city council decision, as the state law seems to suggest.

"It makes far more sense to go to the town meeting or city council first, get your bylaw passed, and then you know what it is and it can go on the ballot," he said. "It's nutty to suggest a ballot question should go first, but you can, though you run a real risk."

That's because any change in the bylaw by town meeting or city council voters would require restrictions to be resubmitted to a townwide ballot question a second time, he said.

After checking with the state Attorney General's Office, Miyares said, he was informed that the sequence of votes does not matter, meaning communities can follow the more logical order — town meeting or city council first, then ballot question.

If a town or city chooses to do nothing, a marijuana sales facility can open, just like any other retail store.

However, 37 communities statewide, including Egremont, Lee and Lenox, have imposed a zoning moratorium on any recreational marijuana establishments until mid-2018 or the end of next year.

With final, detailed state regulations still pending until March 15, Miyares emphasized that "everyone is well-advised to sit tight and wait until those regulations are out so you're writing something that's consistent it will be so much easier to administer and interpret, and it will keep me out of court having to try to argue about how to interpret these things. It seems to me that most towns are not going to be ready to write their zoning bylaws until next spring."

Towns that voted no on the statewide ballot question — primarily on Cape Cod (except Provincetown), in outer Boston suburbs and Worcester County municipalities — only require a town meeting vote to impose restrictions.

"This was not a question that received unanimous approval, except in Berkshire County," Miyares noted, as some audience members voiced appreciative chuckles for that outcome. "The voters of Berkshire County did me a favor, because I don't have to explain what happens if you voted no."

But he noted that the strength of yes votes varied, from a bare 51 percent majority in Dalton to six towns — Alford, Becket, Egremont, Mount Washington, New Ashford and Sandisfield — that voted in favor by 65 percent or more. Great Barrington, Monterey and New Marlborough all approved by about 64 percent.

"So, some people voted yes, and some voted resoundingly yes," Miyares said. "As far as the law is concerned, yes is yes is yes; it doesn't make any difference."

However, if a town voted yes, "it should not be interpreted to mean they were voting to have retail facilities in their own town," he said with a touch of irony.

Reach correspondent Clarence Fanto at cfanto@yahoo.com or 413-637-2551.


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