Marijuana Legalization in the State of Maine

By Leah Rachin 

On November 8th, Mainers will go to the polls to vote on a number of statewide ballot questions. Among them is whether or not the State should allow (and subsequently regulate and tax) the sale and possession of marijuana for recreational purposes, under the proposed Marijuana Legalization Act (the “Act”). Not only would the bill permit the possession and recreational use of up to 2 ½ ounces of marijuana, but perhaps more importantly, it would allow the state and municipalities to license both “retail marijuana establishments” (including stores and cultivation/manufacturing facilities) and “marijuana social clubs.”

Whether marijuana legalization in Maine becomes a reality is still an open question; however, many Maine municipalities are exploring their own regulatory options, should this measure pass.

First, it is important for municipalities to note what they cannot do if this ballot measure passes. Municipalities may not prohibit the private use or cultivation of marijuana completely, so long as that use is by a person over the age of 21. Additionally, municipalities may not pass ordinances that universally prohibit marijuana use of any kind.   

However, municipalities have numerous options available to ensure that possible legalization of recreational marijuana is regulated in a way that is appropriate for their particular city or town.  The options include: 

1. Moratoria: As an initial measure, municipalities can choose to enact a moratorium on all marijuana establishments, allowing additional time to plan and study their potential impact. This action is explicitly allowed by Maine law (30-A M.R.S.A. § 4356) upon a finding that a development moratorium is necessary either to prevent an overburdening of resources or because existing regulations are inadequate to prevent serious public harm. Arguably, the need for additional public safety officers, or the need for additional time to amend the municipality’s comprehensive plan and ordinances would satisfy these criteria. It should also be noted that there may still time in some municipalities to enact moratoria before Election Day.  Counsel should be consulted as soon as possible if such an option appeals.
2. Zoning: The Act explicitly allows a municipality to use its zoning power to regulate both the operation and the location of any marijuana “retail establishment or social club.” This means that similar to the use of heavy industrial or retail zones to protect predominantly residential areas, a municipality can limit where and how many businesses selling or growing marijuana may set up shop.  The Act even allows municipalities to prohibit them entirely.
3. Independent Review: Before any marijuana retail establishment or social club can operate, municipalities have the option of creating and using their own licensing process (separate and distinct from the State of Maine’s). This process can include a public hearing on each proposed establishment, and can be tailored to meet the specific needs of the community. 
4. Odor Ordinances: Some municipalities may also consider adopting ordinances to combat the smell of marijuana, and other odors that residents may find offensive. If drafted properly, the ordinance could allow regulation of a whole variety of offensive odors, providing a valuable tool for local code enforcement officers. Counsel should be consulted to ensure both that the ordinance fits the needs of the municipality and that it is drafted to survive common legal challenges based on whether or not the ordinance properly defines exactly what types and what amounts of odor may be prohibited.   

While the possibility of marijuana legalization may cause anxiety for some municipalities, you should rest assured that many options exist to help adapt to the potential new reality. Counsel should be consulted, however, to ensure that any proposed ordinances or other actions comport with the proposed Marijuana Legalization Act and existing law.   

Leah Rachin is an attorney with Bergen Parkinson, LLC and is a member of the firm’s Municipality Practice Group. The group routinely represents and counsels city and town municipalities in the state of Maine.  Contact: lrachin@bergenparkinson.com