Revised law in most instances requires voter approval on recreational pot restrictions.

Although legislators spent eight months revising the state's new recreational marijuana law, confusion remains on the issue of local control.

Despite recent statements by lawmakers and advocates, the law does not allow town selectmen to act unilaterally to ban retail pot businesses from their communities.

Before imposing any restrictions, the selectmen in towns that voted against the statewide ballot question in November to legalize the drug must submit a bylaw to town meeting. That forum must approve the bylaw with a two-thirds majority, as is necessary with any zoning bylaw.

This is at odds with accounts from legislators and media outlets that selectmen or "town officials" in communities that voted against Question 4 could impose the ban without going back to voters.

Those confused included a local senator and an author of the original ballot question.

On July 28 Gov. Charlie Baker signed a long-debated compromise bill that altered the ballot question. The bill changed parts of the original law related to taxation of the product, packaging of marijuana and local control. It made no changes in terms of individual possession by adults over 21.

In regard to local control the new law sets up two scenarios for communities, depending on how residents voted on the original measure.

For cities and towns in which a majority of voters approved the state ballot question — which includes Provincetown, Truro, Wellfleet and Eastham — the pot businesses may be banned only by a vote at a local election.

For municipalities in which the majority rejected recreational marijuana — which includes the other 11 Cape towns — the legislative body may vote to ban recreational marijuana businesses.

The key term is “legislative body,” said Brewster Town Counsel Jonathan Silverstein, of KP Law. In most Cape towns, that would be town meeting. In larger communities, such as Barnstable, it would be the town or city council.

This was news to several lawmakers.

State Sen. Julian Cyr, D-Truro, said he assumed the decision could be made by a board of selectmen or a town council. But after checking with the authors of the compromise bill, he corrected himself, saying the intent of the law was to allow communities that voted against Question 4 to impose restrictions through their normal processes, such as bylaws.

State Rep. Randy Hunt, R-Sandwich, posted a blog on his website Aug. 1 incorrectly explaining the compromise law.

“For the cities and towns in which a majority voted against Question 4: The municipal legislative body has the power to issue unilateral restrictions or prohibitions on recreational marijuana. In the 5th Barnstable District, the Barnstable Town Council and the Bourne and Sandwich boards of selectmen have this authority, as their respective towns voted against the ballot initiative this past November.”

Hunt said he corrected that blog Tuesday. He attributed the error to a staff member. The blog also correctly notes that in towns such as Sandwich where voters already have rejected retail recreational marijuana businesses in local elections, no further action will be required.

During debate on the bill in June, state Sen. Viriato "Vinny" deMacedo, R-Plymouth, was quoted in the Times as lauding the bill for putting local control into the hands of town officials.

"This brings local control back in line with every other thing we do in government," he said. "When an industry is moving in, if it's a liquor store, it's done at the elected board level."

In the same article Jim Borghesani, communications manager for Yes on Question 4, criticized the local-control section as an affront to the body politic.

"It's possible that one selectman could change a vote and override the will of voters in that community," he said.

Until Tuesday, Valerio Romano, a Boston lawyer who helped write Question 4, was also under the impression that selectmen could impose a ban. He came to realize that “legislative body” referred to town meeting in many Massachusetts towns.

“This changes the way I look at it, too,” Romano said.

Such misunderstandings were widely repeated in the press.

Bob Salsberg of The Associated Press wrote July 28, “The revamped law would allow local elected officials in municipalities where a majority of voters rejected the ballot question to ban or limit marijuana establishments.”

On Saturday, an article in the Cape Cod Times stated, “Legislation signed July 28 by Gov. Charlie Baker allows selectmen or town councils in communities that rejected marijuana legalization at the ballot in November to implement bans unilaterally.”

Not everyone misinterpreted the law.

Quincy-based lawyer Adam Fine, a member of the committee that wrote Question 4, said the process for instituting a ban was straightforward.

“Normally how a community would enact any other bylaw is how it would enact a ban,” said Fine, whose firm, Vicente Sederberg, represents a long list of clients in the marijuana industry.

Although Fine was clear on the process, he was not surprised by the confusion over the new recreational marijuana law. “I think with any law there’s a learning period,” he said. “I believe Question 4 was fine as it was, but people complained about ambiguity.

“I understand people want clarity, and I think fundamentally the law is good and we can move forward with the program,” Fine said.

— Follow on Twitter: @kcmyerscct, @cmlindahl, @ChrisLegereCCT.







Visualization:: Gregory Bryant / Cape Cod Times | Pot plant image: FeaturePics.com





