In our red-and-blue nation, opinions are increasingly black and white. Folks may hold starkly divergent opinions that are both right. Community Impact Fees present just such an instance.
You may have seen outrage expressed in these pages and elsewhere that four Great Barrington cannabis dispensaries sued the town last month seeking return of previously paid Community Impact Fees. One view holds that, of course, there are impacts to our community from cannabis. The opposing view holds that Community Impact Fees were wrongfully dissipated, have been unlawfully retained, and are now due return. Both positions are genuine and unassailable. Cannabis certainly has an impact, and the Community Impact Fees most certainly must be returned. Both are right.
Let’s start with consideration of Sheela Clary’s recent column concerning the “impact” portion of Community Impact Fees as Ms. Clary understands it. Ms. Clary reasonably asks her readers to consider the effect of potent cannabis on the developing brain of a 15-year-old. Setting aside the fact that it is illegal to sell cannabis to 15-year-olds, let’s accept that heavy use of cannabis is inconsistent with adolescent neurodevelopment. Ms. Clary’s column also addressed Cannabinoid Hyperemesis Syndrome (CHS), a condition that causes episodes of severe abdominal pain due to near-daily, long-term use of cannabis. Given these alleged pernicious effects, Ms. Clary appears particularly piqued that one dispensary stated that there was “zero impact” on the town arising from cannabis sales. Ms. Clary noted that a local psychologist stated, “I’d love to see the studies they’ve done to determine the zero impact.”
None of the dispensaries intend to stifle any 15-year-old’s brain development. That is bad for the 15-year-old and very bad for any dispensary caught selling to a minor, which is grounds for license revocation. And no dispensary would want any patron to overuse its recreational product to the point of CHS. Sickening your patrons makes for a generally poor long-term business plan; though, much like bars and casinos, some customers don’t know when to walk away or when to run.
When it comes to the “impact” of cannabis sales on Great Barrington, it appears that what we have here is a failure to communicate. Ms. Clary’s use of the term “impact” and the term as used in the statute establishing Community Impact Fees are distinct. No dispensary has said that cannabis does not have any impact; rather, the dispensaries state in their lawsuits precisely what the town annually certified for each dispensary—that is, when it comes to the determination of “impact” as the term is defined in the statute, there have been zero impacts. The dispensaries take the town at its word. Ms. Clary is right that cannabis has an impact, and the dispensaries are right that none of the impacts Ms. Clary identified are the ones intended to be resolved through Community Impact Fees. Both are right.
As noted in Ms. Clary’s column, Great Barrington set up a volunteer committee, the Community Impact Fee Committee, to review and approve applications from organizations seeking to mitigate cannabis effects. This fact suggests that the town misunderstood the statute from the outset, because the statute intended distribution of Community Impacts Fees to be rather mechanical. Massachusetts law provides that “fees” are intended to reimburse a town for costs incurred. If a municipality’s police department incurred overtime costs of $100,000, then the municipality is due $100,000 as reimbursement for that expense. A committee could bless the expenditure by saying, “yup, that’s right,” but it is unlikely anyone would want to serve.
The chair of Great Barrington’s Community Impact Fee Committee has expressed dismay that the dispensaries are seeking return of Community Impact Fees. Among other things, the Committee chair’s letter makes the following points:
- “The town has spent a small fraction of the CIF money … The approach to spend the money slowly is strategic, as the true impact will not be known for many years.”
- “[T]here are undoubtedly health risks associated with [cannabis] use.”
- “If you agree that the $6 million belongs to the town and not in the pockets of a few business owners who agreed to pay it, then I hope you will join me in speaking out.”
- “It is true that the town had no direct costs to report relating to the dispensaries—no traffic congestion or increased crime to contend with, for example.”
The town wisely banked rather than spent about two-thirds of the collected fees, but it is doubtful that it has done so because it is waiting to determine the impacts of cannabis. Rather, it is more likely it was counseled to spend the collected sums slowly as the statute since 2021 has been under attack based on the very grounds presented in the Great Barrington litigation.
While there may well be health risks associated with cannabis misuse, the statute is not concerned with health risks. The statute simply provides “that the community impact fee shall be reasonably related to the costs imposed upon the municipality by the operation of the marijuana establishment …” Community Impact Fees are intended to reimburse municipalities for rather mundane expenditures—police overtime, mentioned above, and the like. Health risks may exist, but Great Barrington has been impacted exactly not at all by any known cannabis-related health issues that are reimbursable from Community Impact Fees.
Use of Community Impact Fees is a statutory matter not subject to popular debate. The Committee chair is seeking public support for keeping the money in the town’s coffers. There may well be overwhelming support for supporting worthy local nonprofits (as there should be), but that is not the question presented in the litigation. Matters of statutory construction will be resolved in court with reference to a dictionary and perhaps the statute’s legislative history. Judges will consider the statute, not public opinion. And we wouldn’t want it any other way.
To her credit, the Committee chair stated precisely what the town has stated repeatedly: “that the town had no direct costs to report relating to the dispensaries.” And that is precisely what the statute requires in order for the town to use the collected fees for reimbursement.
It is reasonable to be outraged that Massachusetts’ statute did not provide a mechanism to counter cannabis effects on our towns. It is also reasonable for cannabis dispensaries to seek return of the Community Impact Fees that they paid. Both positions are right.
Survey Monkey Question: Here is a link to the following Survey Monkey poll: Having annually certified that it incurred no costs due to the operation of any marijuana establishments, should Great Barrington settle the dispensaries’ litigation by returning the Community Impact Fees currently in its possession to the dispensaries? Results will be reported in this space soon.
Survey Monkey Results: In a recent column, we asked, “Would you prefer to have town meetings held on Saturdays?” As of publication, 83.33 percent of respondents said “yes.”
