General vs. Zoning Ordinance or Bylaw – How to Choose?
Every municipality has, at one time or another, faced the problem of deciding whether to adopt a particular requirement as a general ordinance or bylaw, rather than as a zoning requirement. Zoning ordinances and bylaws are more difficult to adopt because they require a 2/3 vote, and they also generally do not apply to pre-existing uses and structures. So Cities and Towns often prefer, if they can, to use general ordinances and bylaws instead.
The proliferation of marijuana ordinances and bylaws in recent years has provided no shortage of examples, and the Land Court was presented with one in Valley Green Grow, Inc. v. Town of Charlton. The Town had amended its Zoning Bylaw in 2018 to allow adult marijuana uses in certain districts by special permit. Citizens unhappy with that vote submitted a petition for the fall Special Town Meeting to rescind the Zoning Bylaw change and to adopt a General Bylaw to ban adult use marijuana establishments throughout the Town. The rescission of the Zoning Bylaw failed to receive the required 2/3 majority to pass, but the General Bylaw prohibiting all adult use marijuana required only a majority vote, and passed.
In approving the General Bylaw, the Attorney General’s Municipal Law Unit stated that it was beyond its review authority to disapprove a bylaw merely because it is in conflict with other Town bylaws. A challenge to the General Bylaw thus followed in Land Court. As framed by the Court, the question presented in that case whether the General Bylaw was actually in the nature of a zoning bylaw and therefore invalid for failure to follow the process set forth in M.G.L. c.40A, §5 for the adoption of zoning changes.
The Court noted the general rule that not all regulation of land use must be embodied in zoning ordinances or bylaws. For example, most communities have earth removal regulations as part of their general bylaws or ordinances. So how to determine whether a matter should be regulated by a general or zoning bylaw?
The Court relied on precedent to answer that question by posing another question: How has the municipality regulated the matter in the past? “A general bylaw may only regulate a subject if there is no history in the municipality of the subject being treated under zoning.”
If a municipality chooses, in the first instance, to regulate adult use marijuana establishments under a general bylaw, it may do so. But once it has regulated them by zoning, it can change the regulation only by amending its zoning bylaw. Since Charlton had, just a few months earlier, chosen to regulate adult use marijuana through its Zoning Bylaw, its effort to ban adult use marijuana through adoption of a General Bylaw was invalid.