Land use is the frontline

I previously wrote about action by a local government in New Jersey to ban dispensaries and land use litigation in California, specifically the Pack v Long Beach case. There have been many more legal developments in New Jersey, California and elsewhere with regard to the authority of local governments to ban dispensaries even when they are legal under state law. Several decisions including the Ter Beek v City of Wyoming decision from Michigan (my thanks to Adam Scavone for bringing this decision to my attention) and the City of Riverside v Inland Empire’s Patient Health and Wellness Center decision from California have held that federal law does not preempt state law permitting the operation of cannabis dispensaries. However, in Riverside a California appellate court held that state law does not preempt local zoning regulations that ban dispensaries under the guise of “regulation.” This decision is under review by the California Supreme Court along with several other decisions on the question of state preemption of local law.

Recent developments in Massachusetts confirm further my position that the frontline of cannabis law is at the local level, not the conflict between federal and state law since, in practice, the operation of a dispensary is subject to authorization by local government. A recent article about the new Massachusetts law demonstrates that the classic next step after enactment of a state medical cannabis law is action by localities to ban dispensaries or at least declare moratoria pending “further study” of the issue.

The takeaway from the foregoing is that persons seeking to legalize the supply side of cannabis in their localities should take action to cultivate their local governments in anticipation of favorable state laws and/or be ready to brief the inevitable legal argument as to whether state law preempts local law with regard to dispensaries.


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