Marijuana’s Legal Limbo Poses Challenges for Municipalities

On November 8, 2016, Maine voters approved a ballot question legalizing possession and use of marijuana by persons 21 and older, and to allow commercial cultivation and sale of marijuana, subject to state and local regulation.  The new law, the Marijuana Legalization Act, took effect January 30, 2017, but the Legislature imposed a moratorium on the parts of the law regarding retail sales of marijuana until February 1, 2018.  The purpose of the moratorium was to give the Legislature time to develop rules implementing a licensing system for retail marijuana growers and sellers.  In November 2017, however, Governor Paul LePage vetoed a measure that would have established that system.  As of February 2018, Maine has no system in place for licensing retail marijuana operations.

Although the state licensing process remains in flux, local governments may begin to receive inquiries and applications for local land approvals from marijuana businesses hoping to hit the ground running once the state system is in place.  This is because the Marijuana Legalization Act provides for a strong element of local control over commercial marijuana uses.  The Act creates a two-step application process: applicants must receive both state and local approval.  

Municipalities have several options in terms of regulating retail marijuana operations.  Municipalities can elect to become so-called “dry towns” by enacting ordinances prohibiting retail marijuana operations within their limits.  Note that local governments cannot prohibit personal cultivation or use of marijuana permitted by the Act.  Municipalities who choose not to prohibit retail marijuana operations can impose their own rules and regulations, such as limiting the number of licenses available, restricting the location and operation of marijuana businesses through zoning, or prohibiting certain types of operations or products.

Of course, it may be difficult for municipalities to assess what processes or additional regulations they need in place where details of the state’s licensing system remain undecided.  For this reason, among others, some municipalities have decided to impose local moratoria on marijuana sales while they develop rules and procedures even though the state is not issuing licenses at this time.

The legal landscape regarding marijuana is shifting rapidly at both the state and federal levels.  Cities and towns should seek legal counsel as to how to best address these issues in their municipalities.

Jonathan P. Hunter, Attorney at Law, Rudman Winchell