We disapprove both Articles … Articles 3 and 4 are an invalid attempt to restrict marijuana uses through a general by-law where the Town had previously regulated such uses through zoning.”

AG Maura Healey

WESTPORT — The Massachusetts Attorney General has ruled that Westport voters last October had no business adopting bylaws that outlawed recreational marijuana shops in town, an activity that had previously been allowed by town zoning in certain zones.

The rejection, signed last week by Attorney General Maura Healey, marks the second time here in less than a year that the AG’s department has taken the unusual step of overturning a town meeting vote. Back in August, the AG tossed out a Westport special town meeting vote taken six months earlier that aimed to prevent the Board of Health and any other town entity from inspecting and regulating farms where livestock is kept. 

The Oct. 3 town meeting votes

Frustrated in part by one company’s bid to establish a marijuana facility in the town’s Central Village, Westport voters successfully petitioned to place two articles on the warrant for the outdoor October 3, 2020 special town meeting.

• Article 3 asked voters to rescind bylaw language that states that medical marijuana establishments “be allowed to operate as a recreational Marijuana Establishment in addition to a Medical Marijuana Establishment.”

• Article 4 asked voters to delete bylaw language stipulating that non-medical marijuana establishments in town will be subject to the same limitations and regulations as medical marijuana establishments.

Both measures passed by clear show-of-hands margins (attendance was announced as 402).

Marijuana rules conflicted

The problem, the AG’s department wrote, is that the town’s zoning bylaw already allows and regulates the sale of non-medical marijuana in certain zones.

“Because the Town has previously regulated marijuana through zoning by-laws, the Town may not now adopt a general by-law that is more restrictive than the previously adopted zoning by-law,” the AG wrote. “For this reason, we disapprove both Articles … Articles 3 and 4 are an invalid attempt to restrict marijuana uses through a general by-law where the Town had previously regulated such uses through zoning.” 

Westport’s town attorney had cautioned the town about this very issue, a fact mentioned by selectman Brian Valcourt during debate at the October special town meeting.

The two articles “create a conflict” with the town’s zoning bylaw, Mr. Valcourt said (citing the town’s attorney), and cases in two other Massachusetts towns indicate that the courts believe that zoning articles supersede general bylaws such as these.

Among those to speak against the articles in October was a representative of Coastal Healing. The firm had already won approval to operate a medical marijuana facility at its 248 State Road facility and had also requested to add non-medical marijuana to its offerings there.

Reaction

Asked to comment on the ruling, former selectman, R. Michael Sullivan, a supporter of last October’s Special Town Meeting articles, replied, “It is unfortunate that what the town has expressed, a half dozen times by majority votes, has been willfully and cleverly ignored by Coastal Healing, its representatives and supporters.  We are hopeful that June 5th's Annual Town Meeting will give the voters a chance to settle this issue, perhaps not for good but at least for the immediate future.  With the assistance of the town's Planning Board, these questions will have the precise and proper parliamentary language necessary to satisfy the Attorney General's concerns regarding bylaws and zoning bylaws.”

Back and forth pot votes

In last week’s ruling, the Attorney General offered a summary of Westport Town Meeting voters’ back and forth relationship with marijuana facilities.

• At its 2014 Annual Town Meeting, the town voted to amend its zoning by-law to allow Medical Marijuana Treatment Centers in the town’s Business and Science and Technology Overlay Districts with Planning Board approval.

• At the May 2018 Annual Town Meeting, the town voted to amend the general by-laws to prohibit all types of non-medical marijuana establishments. 

• At the February 2020 Special Town Meeting, the town voted to amend the general bylaw to allow certain medical marijuana establishments to also operate as recreational marijuana establishments and to delete the prohibition against marijuana establishments and instead regulate all non-medical marijuana establishments by zoning. In addition, voters amended the zoning by-laws to add a new zoning by-law that regulates non-medical marijuana establishments.

• At the July 2020 Annual Town Meeting the town re-codified its zoning by-laws, including by-laws pertaining to medical and non-medical marijuana. 

“Thus, as of October 3, 2020,” the AG wrote, “the Town’s zoning by-law allowed commercial marijuana establishments with certain regulations; allowed medical marijuana establishments with certain regulations; and allowed certain medical marijuana establishments to convert to commercial marijuana establishments.”

Votes ‘not readily overturned’

In disallowing the votes, the Attorney General’s office said it does not take such actions lightly.

“The Attorney General’s office does not readily overturn decisions made by town voters,” AG Healey said. The office has “limited power of disapproval,” and “it is fundamental that every presumption is to be made in favor of the validity of municipal” decisions.

To disapprove a by-law, “the Attorney General must cite an inconsistency between the by-law and the state Constitution or laws, (and) State statutes have given considerable latitude to municipalities.”

That said, “a general by-law may not be effective to change earlier zoning by-law provision,” the AG said, noting that zoning by-laws require a two-thirds majority vote, while general by-laws can be adopted by a simple majority vote.

Charlton case

In making its decision, the Attorney General pointed to a similar case involving the western Massachusetts town of Charlton and its dealings with marijuana sales.

Voters in that town had proposed a zoning by-law amendment that would have rescinded the comprehensive zoning by-law previously adopted to regulate commercial marijuana in town: this measure won a majority vote but not the two-thirds vote needed to amend a zoning by-law.

In the view of the Land Court which overturned the votes, the Charlton “town meeting evaded the strict two-thirds vote requirement … for amending a zoning bylaw by enacting a general bylaw instead.”

“Therefore,” said the AG, “we are constrained to disapprove and delete the general by-laws adopted under Articles 3 and 4 by their similarity — in content and history — to the Charlton general by-law so recently invalidated by the Land Court.”