Pot is legal in Massachusetts. What do opposing towns do now?

Unlike most other state laws legalizing marijuana, Massachusetts requires all towns to sell pot. Opting out is difficult, but local leaders are finding other ways to push back.

One ride on Boston’s Red Line subway is enough to span the spectrum of Massachusetts’s mixed feelings about legalizing recreational marijuana.

In Boston's Harvard Square, where the smell of pot in places wafts through the streets, Cambridge residents are celebrating after passing Referendum 4 last week by an overwhelming majority.

At the southern end of the line in Braintree, a town of 37,000 residents on the South Shore, some are smarting at being forced to allow pot sales starting in 2018 – after they voted against it.

“Bottom line: I couldn’t figure out what the benefit would be to have this become legal,” says Mayor Joe Sullivan of Braintree, which voted no. “But more importantly than that, as a mayor, I was concerned about what I saw as a deeply flawed referendum question. Whether or not you voted for it, you’re in.”

Unlike most of the other seven states that have legalized pot, Massachusetts’ new law – one of the most liberal in the country – doesn’t just give local communities the right to sell it. It requires them to do so unless they opt out. That’s a complicated process, and may result in very few towns being able to overturn it. 

And rightly so, argue proponents, who have expressed frustration that some local leaders have yet to implement a 2012 referendum that legalized medical marijuana. They champion this year’s ballot initiative as empowering the people. That mechanism enabled them to legalize pot over the objections of their elected representatives – including the governor, the attorney general, and the mayor of Boston.

“We fully understand that legalization of marijuana makes people uncomfortable. We are reversing a policy that has been in place for over a century,” says Jim Borghesani, communications director for the “Yes on 4” organization. “I think all elected officials should respect due process and put aside any personal feelings they may have…. They owe it to the law that was just passed by a solid majority to approach this new policy in a reasonable way.”

An estimated $4 million went into generating public support for the referendum, which produced TV commercials and sent multiple mailings to residents.

Boston’s WBUR radio station reported that roughly three-quarters of that came from the New Approach political action committee in Washington, and that a review of their tax filings “confirms the vast majority of contributions to the PAC come from individuals with no apparent ties to the marijuana industry.”

Lawmakers say they were up against more powerful forces, and were unable to convey to the public their concerns about the impact of the law.

"When you’re running a statewide campaign against a well-funded industry … they make claims we can’t refute them,” says Vinny deMacedo, state senator for the Plymouth and Barnstable districts.

Referendum passes by 53.6 percent

Gov. Charlie Baker, Boston Mayor Marty Walsh, and State Attorney General Maura Healey all spoke out against the referendum earlier this year, arguing that the state of Massachusetts had already gone far enough, decriminalizing the drug in 2008 and legalizing medicinal marijuana in 2012.

But Referendum 4 supporters argued that legalization – which opens the way for regulation – will clear the court system of marijuana-related cases, protect minorities from disproportionate arrests, bring drug dealings out of the shadows, and utilize tax revenue for worthy causes such as education, law enforcement, and drug treatment.

Massachusetts voters passed the referendum with 53.6 percent, joining voters in Nevada, California, and Maine who also legalized recreational marijuana on Election Day. They now join Colorado, Washington, Oregon, Alaska, and the District of Columbia as America’s pot havens – despite a federal law that makes all forms of marijuana illegal.

Lack of local control

Similar to other states’ legislation, Referendum 4 prohibits marijuana consumption in public places, and limits public possession to one ounce. But for a state that was considered on the fence for legalizing recreational marijuana, other restrictions are surprisingly mild.

Pot users in Massachusetts can have up to 10 ounces of marijuana in their homes as well as 12 plants – at least double the number of plants allowed by Colorado, Alaska, Oregon, and Washington.

And Massachusetts’ proposed marijuana tax is only 12 percent, which includes an excise tax of 3.75 percent – far less than the other four states’ excise taxes, which range from 25 to 37 percent. Still, the new law is expected to yield $300 million in new revenue.

“This 24-page legislation is what made the idea – to me – challenging,” says Senator deMacedo, a Republican whose constituency includes part of Cape Cod, which voted overwhelmingly against the measure. “The 12 home-grows, the low taxes, the lack of local control – those are the things that really concerned me.”

The referendum gives local leaders discretion over the “time, place and manner of marijuana establishments,” but they are unable to determine the number of establishments or their location. Each town is required to permit the number of marijuana retailers equivalent to 20 percent of the town’s liquor licenses.

“We don’t even know where the locations are going to be,” says Mary, a resident of Cambridge, who didn't give her last name. “They were talking about one [that would be located] two miles away from the high school. That’s not right.”

“A vote is a vote – we get that,” says deMacedo. “But that doesn’t mean we can’t encourage communities to make their own individual decisions.”

What’s next?

Mr. Borghesani advises city officials to give the referendum a chance. But he also adds: “This is a state law, and as with any state law, all communities have to comply.”

That is, unless they vote to opt out.

In order to do so, at least 10 percent of registered voters need to sign a petition against the measure to bring it to vote. Scheduling such a vote is logistically difficult, explain opponents. Some towns won’t hold an election for at least another year, and any future election would almost certainly be lacking the funds and voter turnout of a presidential year.

For those reasons, Sullivan is not immediately pursuing an opt-out vote. For now, he's focused on other possible solutions for Braintree: reducing the 20 percent requirement, granting zoning discretion to limit where dispensaries can be located, and raising taxes to help fund public safety efforts. 

“Simply, those communities that voted for it, great,” says Sullivan, but adds that communities who don’t want pot dispensaries should be respected, too. “I’m trying to be understanding of the statewide vote, but I’m also trying to promote the fact that Braintree didn’t vote for this, and we deserve recognition for that.”

(Editor's note: This story was updated to correct the time at which recreational marijuana sales will begin in Massachusetts.)