MA: Worcester Is Warned Against ‘Spot Zoning’ For Marijuana Businesses

Photo Credit: Randall Benton

The city will not be able to limit the number of recreational marijuana establishments in each of the five City Council districts, according to an opinion prepared by City Solicitor David M. Moore.

Mr. Moore has advised the City Council that such a policy likely “would not survive a legal challenge.”

In a related matter, City Manager Edward M. Augustus Jr. is recommending additional requirements in new regulations for the licensing and operation of marijuana retailers.

The amendment would make it unlawful to operate as a marijuana retailer in the city without a license from the License Commission and the state Cannabis Control Commission, and without an executed community host agreement with the city.

Under state law, Worcester is required to allow the establishment of up to 15 regulated recreational marijuana establishments. That represents 20 percent of the number of licenses issued by the city for the retail sale of alcohol not to be drunk on the premises.

The Cannabis Control Commission is scheduled to begin accepting applications for marijuana establishments on April 1 and those that receive licenses will be allowed to open as early as July 1.

While the City Council has initiated the process for establishing regulations for the siting of such establishments, some councilors believe they do not go far enough to safeguard certain areas of the city from becoming magnets for these businesses.

District 2 Councilor Candy-Mero Carlson recently suggested allowing no more than three marijuana establishments in each of the five City Council districts. She said that would spread them out across the city and prevent saturation in certain areas.

But the city solicitor said he does not believe such a strategy could be deployed in Worcester. Mr. Moore said a limit on the number of establishments per City Council district would most likely be viewed by the courts as inconsistent with the state marijuana law.

He added that election district boundary lines and zoning district boundary lines promote different public goals, and it would be inconsistent to use election district lines for zoning.

“The use of election district lines can only serve the purposes for which the line was drawn,” the solicitor wrote in an opinion that will be taken up by the City Council Tuesday night. “To use it to play a significant role in the determination of the locations approved for marijuana establishments would, in my opinion, be invalidated by the courts as not appropriately related to the purposes served by the election district lines.”

Also, Mr. Moore said any attempt to modify pre-existing land uses and the locations of existing zoning districts to address concerns of oversaturation in certain areas of the city would likely be found to be spot zoning.

“The state marijuana law creates a unique system for limiting the number of establishments in any one city or town,” Mr. Moore wrote. “Because the state marijuana law is quite specific as to the numerical limits available to municipalities, I believe that the courts will find that any other form of numerical limitation would be nullified as inconsistent with the marijuana law,” he added.

Mr. Augustus said he concurs with the solicitor’s reasoning and conclusion.

“While this is a new area of law, it stands to reason that additional limitation language runs the risk of being invalidated as inconsistent with the new state marijuana law,” the manager said

Mr. Augustus noted that the city is addressing issues associated with the siting of recreational marijuana establishments from a zoning, licensing and policing perspective.

He added the city will take all appropriate measures to prevent or mitigate any of the issues that can be expected from the siting of these businesses.

Last month, the City Council referred to the Planning Board amendments to the city’s zoning ordinance recommended by the city manager. The proposals would ban recreational marijuana establishments in all residential-zoned areas and prevent their siting within 500 feet of schools, public parks, playgrounds, licensed day care centers and public libraries.

Recreational marijuana establishments would be allowed by special permit only in areas zoned for manufacturing and business use, in institutional-hospital zones and the airport zone, which includes the industrial park near Worcester Regional Airport.

The special permits for such establishments would be issued by the Planning Board.

In an effort to provide further safeguards for the city, Mr. Augustus is recommending an amendment to the city ordinance adopted by the City Council in January governing the retail sale of marijuana.

He said the amendment would enable the city to further regulate, improve compliance, deter illegal sales and impose reasonable safeguards to govern the time, place and manner of marijuana establishment operations.

The requirements would be in addition to the special permit requirements that are already part of the city’s regulatory framework, the manager said.

Marijuana retailers would be required to obtain an annual license from the city License Commission, and they would have to have a signed community host agreement with the city.

Licensees would be required to submit a security plan to the License Commission, detailing all security measures that will be taken to ensure patron and community safety, and to eliminate unauthorized access to the premises.

In addition, marijuana would not be allowed to be smoked, eaten or consumed within the licensed premises of a marijuana retailers.