- Luke Eastman
At a November selectboard meeting, Gwynn Zakov issued an ominous warning to Barre Town officials about cannabis: Act before it's too late.
"We are 100 percent dependent on the legislature to take care of us," the lobbyist for the Vermont League of Cities & Towns said. "This is your one time to speak up and ask for what you need," she added. "Once it's law, it's law — and undoing laws is really difficult."
Zakov was referring to S.54, a bill currently in the Vermont House that would establish a state-regulated retail cannabis market. Her organization has spent the last couple of months encouraging municipalities to support the legislation only if it gives them the power to prohibit weed shops from opening within their borders.
The group has even created a boilerplate resolution about the issue, which it sent to 246 Vermont cities and towns late last year. Approximately 20 municipalities, including Barre Town, have adopted the resolution in some form or another.
"We just want to make sure that communities have the local control that they need," Zakov said in an interview. "Leave it up to the communities to decide whether they want in."
The resolution also requests that any new law enable municipalities to charge cannabis establishments licensing and permitting fees and that sales be subject to a 5 percent local option tax — more than double the amount currently in the bill.
The local action makes it clear that communities want a say in whatever decision legislators in Montpelier make. While Zakov and some local officials cheer the grassroots advocacy as the Vermont way, others worry it could hurt the market — and consumers — before it even opens.
"If you look at the dynamics of how Vermonters shop and where they have to go for their retail goods, do we want to continue to funnel everybody to Burlington, the White River Junction area and Brattleboro?" asked state Rep. Sarah Copeland Hanzas (D-Bradford). "Or do we want some of this to be allowed to buoy up communities in more rural parts?"
The legislature's two chambers have presented different approaches, though both would allow towns to prohibit retail weed establishments. The version of S.54 that the Senate passed last session would require that a municipality hold a vote before it could ban cannabis stores, a provision known as "opt-out."
The House version would require the opposite. Towns would have to hold a vote before retail shops could open. That's known as "opt-in."
Copeland Hanzas chairs the House Government Operations Committee, which advanced S.54 last session with an opt-in provision as part of what she called a "difficult" and "unfortunate" compromise. She said she hopes municipalities — especially those in rural areas — will see that there are other ways to control the impacts of retail establishments.
The Vermont League of Cities & Towns resolution supports an opt-in system. Zakov said other states have found that the provision allows communities to take as much time as needed to understand the impact of joining the market.
But critics say it gives too much power to municipalities. George McNaughton, a Progressive Springfield Selectboard member who ran unsuccessfully for a state House seat in 2018, called opt-in a "torpedo" that's "intended to kill hosting of marijuana facilities."
When Springfield considered the resolution in November, McNaughton said he convinced his colleagues to replace opt-in with opt-out. The burden, he argued, should be placed on those who wish to prohibit the community from participating in the market.
The board passed the amended resolution by a 4-1 vote.
"If the people really, really feel strongly that they don't want a marijuana facility, then they can petition," McNaughton said.
The two New England states that already legalized sales have settled the question of local control differently.
In Massachusetts, which created an adult-use marijuana market in 2018, towns must opt-out. Kevin Conroy, a cannabis attorney in the Bay State, said that's the right tack. He spoke about Massachusetts' experience last month during a Burlington panel discussion on cannabis hosted by Vermont Attorney General T.J. Donovan.
"People who want access to cannabis are going to get access to cannabis," Conroy said in an interview. "By [banning sales], you're just furthering the black market, which means that this is done underground, isn't regulated, isn't taxed. You'd rather have a regulated, taxed product in your community."
Maine, where retail sales are expected to begin this spring, has an opt-in system. Many residents preferred allowing municipalities to make their own decision, said Erik Gundersen, director of the Maine Office of Marijuana Policy. He, too, participated in Donovan's panel about weed in December.
While declining to say what system he preferred, Gundersen opined that the "slow burn" should help Maine grow its market at a sustainable rate.
That "slow burn" might be slower than initially predicted: Gundersen said only about 30 of some 450 Maine municipalities voted to opt in, meaning consumers will either need to travel to a store or stick with the black market.
Most of the holdouts are taking a wait-and-see approach, Gundersen said, so he's "not in panic mode quite yet." But he said the legal market's ability to "survive and thrive" would eventually depend on how many municipalities decide to participate.
In Vermont, some towns have already taken a stand against the sticky icky.
Thetford passed an ordinance last month that bans the sale or cultivation of marijuana for commercial purposes. Newport and Clarendon have passed similar ordinances, while Dover has prohibited medical dispensaries.
Some who helped pass the measures say they hope any future legislation will honor their stance.
Among those was Bill Huff, a 2018 Republican state Senate candidate who helped circulate a petition in Thetford calling on the selectboard to consider the prohibition.
Huff argued that small towns are ill-equipped to handle the expected traffic increase from retail dispensaries and said he hoped Thetford's ban would help influence lawmakers as they draft the final legislation.
Middlebury attorney and drug reform advocate Dave Silberman said he thinks other municipalities will also prohibit sales if the legislature allows it. "It gives conservative local leaders the ability to stick their head in the sand and say, 'We've stopped the menace of marijuana from coming to our town,'" Silberman said.
Given a choice, Silberman and other legalization advocates say they much prefer the opt-out model. But Gov. Phil Scott has said that he would only support legislation that allows municipalities to opt in to retail sales, and Silberman said he would prefer to remain pragmatic. Scott, after all, has vetoed cannabis legislation before.
"When the governor expresses a stated concern with a bill, you're better off addressing it than telling the governor to go pound sand," Silberman said.
After years of near misses, Matt Simon, the New England political director with the Marijuana Policy Project, was also willing to compromise if it meant a bill would be signed into law. "We're not interested in dying on that hill," Simon said. "We want to get this thing done in 2020. Vermonters have been waiting far too long for this."
Just how much longer that wait will be remains unclear.
House Speaker Mitzi Johnson (D-South Hero) hasn't committed to bringing S.54 to a vote, noting that she and other representatives still have concerns about impacts to highway safety, youth usage and the environment.
"We're in the middle of the process. We don't have a House position on tax-and-regulate at this point," she told Seven Days last month. "My job is basically to be the facilitator for all of that to make sure that the committees get to weigh in."
"We've got a ways to go," she added.
Other House Democratic leaders appear optimistic that a bill will make it through the process this time around. "The fact that we are talking about this bill shows that this is a priority, and it's going to move," said House Majority Leader Jill Krowinski (D-Burlington). "We're not going to have it done the first week of session, but we are absolutely addressing this bill."
The measure is before the tax-focused Committee on Ways and Means, and Johnson said she expects at least three other committees to take a look.
Sen. Dick Sears (D-Bennington), a cosponsor of S.54, said he would not be concerned if the House settled on an approach that differed from the Senate's. Differences can be hashed out in a conference committee, he said, where members can also work with the governor's office and find the best path forward.
Getting the bill to that point is now his biggest concern.
"I can't even get a House vote. This is what's frustrating," Sears said. "Right now, given the comments from the speaker and others, that's where the holdup is, and it's been there for years."