Town Counsel Updates Planning Board on Marijuana Establishments in Aftermath of New Bylaw Banning Such Uses

This week Town Counsel appeared before the Brewster Planning Board and provided guidance following the December 3 Special Town Meeting which approved of a new General Bylaw banning all recreational Marijuana Establishments from operating within the Town (the “General Bylaw Marijuana Ban”).

Counsel advised that the new by-law creates a conflict with the current Zoning Bylaw, §179-38 which was enacted by Town Meeting on March 12, 2018 and allows such uses in limited areas, subject to the review and approval of the Planning Board through the issuance of a Special Permit and Site Plan Approval. The General Bylaw Marijuana Ban will not become effective until it is reviewed and approved by the Attorney General. The Attorney General’s office has 90 days from the date of submission of a Bylaw by the Town Clerk to issue its approval decision. Thus, the General Bylaw Marijuana Ban, although adopted by Town Meeting has not yet completed the entire approval process.

In the meantime, an application has been filed with the Planning Board for a recreational marijuana establishment under §178-38 of the current Zoning Bylaw. The Planning Board was informed that it does not have the authority to resolve the conflict between these two conflicting provisions of local law and can only act pursuant to the authority and obligations vested in it under the Zoning Act, G.L. c.40A , and the Town’s Zoning Bylaw. This includes the obligation to schedule, hold public hearings and issue decisions on Special Permit and Site Plan Approval applications that are properly filed with this Board.

Counsel advised the Planning Board to continue to accept applications, hold public hearings, and issue decisions for recreational marijuana establishments under the Zoning Bylaw. However, an applicant’s ability to operate such an establishment may ultimately be impacted by the Attorney General’s decision on the General Bylaw Marijuana Ban and any subsequent legal actions regarding the conflict in our local bylaws.