Can localities opt out of legal marijuana sales? Virginia lawmakers debating role of public opinion

Virginia

RICHMOND, Va. (WRIC)- Virginia lawmakers are debating the role of public opinion in the push to legalize recreational marijuana sales for those 21 and older.

The path the General Assembly chooses to take could have major implications for access in certain parts of the state and even the fate of the legal market altogether.

Local authority is one of many details being decided in the coming weeks, as the House and Senate work to come to a consensus on diverging bills. The two versions that passed last week have to be reconciled before Gov. Ralph Northam will have an opportunity to make changes of his own.

Neither chamber decided to embrace the approach originally crafted by Northam’s Administration, which would’ve required localities to opt-in to commercial sales.

Sen. Adam Ebbin (D-Alexandria), a chief co-patron of the Senate bill, said his caucus preferred an opt-out provision. He said localities wanting to ban retail sales would have to win the approval of voters in a ballot referendum, rather than an ordinance that could quickly be passed by a local governing body.

“There was a desire to have less of a patch-work approach and to have it legal in more places than not…and not to go down the same road as liquor-by-the-drink,” Ebbin said, referring to the Commonwealth’s alcohol sales prohibition strategy.

Under the Senate’s bill, localities who opt-out of retail sales would lose out on tax revenue, although marijuana cultivation could still occur within their borders.

According to Ebbin, the Senate Judiciary Committee also decided to include a statewide advisory referendum to take the public’s temperature on marijuana legalization this November.

While the vote would be non-binding, Ebbin said it could influence the opinion of lawmakers ahead of another key step. The Senate’s bill also includes a re-enactment clause that would need to win approval of the General Assembly in 2022.

If it fails, it could block commercial sales from ever hitting the shelves in Virginia, according to Ebbin. That outcome would be more likely if Republicans take back control of the House of Delegates in elections later this year.

“We’ve never had a General Assembly that is as supportive of legalization as this one. The concern with a re-enactment clause is that the 2022 General Assembly may not be as supportive and could vote against the measure, essentially ending any progress on legalization in Virginia,” said Jenn Michelle Pedini with the marijuana advocacy group NORML.

Pedini said the House bill doesn’t call for a statewide advisory referendum or the passage of a re-enactment clause next year.

House Majority Leader Charniele Herring (D-Alexandria) said her chamber’s approach also wouldn’t allow localities to opt-out of the legal market. However, they would be able to control where and when vendors could operate through the zoning process.

“The General Laws Committee thought it would be better not to have opt-out because a business could be started and then a locality could say ‘we don’t want this anymore’ and harm the business,” Herring said.

Asked if localities could effectively squash the market through the zoning process alone, Herring said, “I don’t know…in a commercial area it would probably be difficult to prevent but different localities have different processes in place.”

On if the Senate would consider moving towards the House’s approach, Ebbin said, “I’m open to it but I have to talk to my colleagues in the Senate and come up with a fair compromise. I don’t know exactly what that will be yet.”

An extensive study conducted by the Joint Legislative Audit and Review Commission ahead of the session found that local governments in most other legalized states have ‘substantial authority’ over commercial marijuana operations within their borders.

With this in mind, JLARC conducted an anonymous survey of government leaders across the Commonwealth to assess the likelihood of local bans. Overall, 76 localities responded, accounting for about 60 percent of the state’s population, according JLARC’s Chief Legislative Analyst Mark Gribbin.

The report suggested that “a majority of localities in Northern Virginia and Tidewater would be likely to participate in a commercial market, but localities in Southwest and Southern Virginia may be less interested in participating.”

Gribbin said Central Virginia was more of a “mixed bag,” adding that the survey suggested regional variation between urban, suburban and rural pockets across the state.

“More urban and suburban areas would probably be more likely to allow it,” Gribbin said.

JLARC also studied the pros and cons of granting local authority. Gribbin said the main reason to support it is to respect public opinion, as prohibition is unlikely to actually prevent use of the drug. He said the main risks are limiting access to marijuana, stunting the new industry and encouraging illegal sales to continue.

“Our best guess is that, even if you allow prohibitions, it probably wouldn’t hurt the state market and there would probably be enough cities and towns spread around throughout the state that, even if there were a lot of local bans in the area, you could probably drive a county or two over,” Gribbin said.

In Bristol, Virginia, where a recent referendum to allow casino gambling caused months of controversy, City Manager Randall Eads hopes the General Assembly allows localities to make a decision through an ordinance.

“I think referendums should only be used in rare circumstances. Your city council members are elected to represent the will of the people and I think those leaders should have the ability to make a decision,” Eads said.

Eads isn’t taking a position on marijuana legalization but he noted that the Bristol City Council could be ‘open to it.’

The Virginia Association of Counties also didn’t take a stance in a statement.

As we continue to analyze these bills and engage with the bill’s patrons and Northam administration officials, we do support providing counties with the greatest flexibility possible in how legalization and subsequent commercialization of marijuana will be regulated in their communities. This extends to local land use authority, local taxation and revenue distribution, and a local retail option.

Chris J. McDonald, Virginia Association of Counties Director of Government Relations

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