Anyone contemplating operating an alternative treatment center and registering to sell cannabis for therapeutic purposes in NH will find state statute does not contain an extensive list of restrictions as to where a treatment center can be located, how it advertises its services and what it can do onsite.
At first glance, the statute appears to contain only a few restrictions. For example, under state law, a treatment facility cannot be located in a residential district or within a pre-existing designated drug-free school zone. While this may seem simple enough, don’t be fooled. The statute contains one sentence that opens a whole host of complex issues. Specifically, the NH Department of Health and Human Services must consider, among other things, compliance with local zoning laws in evaluating applications for alternative treatment center registration certificates.
What About Local Zoning Laws?
Typically, zoning laws divide all the land within the municipality into different zones, with certain restrictions on property use, most commonly related to the type of use (such as residential, commercial, industrial or agricultural), lot size, frontage on the road, building size and height, lighting, advertising and parking, among many others.
Moreover, regulations can break down even further to set specific rules applicable to particular types of uses, including cannabis dispensaries. So, while you may have initially thought that the state law was all you had to contend with, the reality is that you will also need to address separate local rules that can vary wildly from municipality to municipality, from zone to zone within the municipality, and from use to use within the zone. Let the fun begin.
While some communities are open to alternative treatment centers, others are wary and more resistant to allowing medical cannabis businesses to operate within their borders. And, depending on the community, you may find that the applicable restrictions impede or, at a minimum, significantly complicate your efforts to get your business off the ground.
What Kind of Restrictions?
While the restrictions specific to alternative treatment centers vary by community, here are some common trends in NH:
• Restriction to a particular zoning district or districts, likely a commercial, industrial or manufacturing district;
• A requirement that the facility be located on a particular type of street (such as a higher capacity road as opposed to a
side street);
• Limitations on how and where the center can advertise. Some towns require that advertising not be visible from outside the building or within the town boundary line;
• A requirement for adequate buffering, through existing vegetation or landscaping, to avoid any adverse effect on neighboring property values;
• A requirement that the facility not be located within 1,000 feet of a school, a designated drug-free zone or a residential zoning district;
• Prohibitions on drive-through and home-based services, disposal of cannabis remnants or byproducts in exterior refuse containers, use of cannabis at the property (sorry, this will not be like a brewery tasting room) and the emission of cannabis-related fumes, vapors or odors that can be smelled or otherwise perceived from beyond the lot lines of the property;
• A requirement that the facility be located in a permanent building, as opposed to a trailer or similar structure;
• Limitations on hours of operation; and
• A requirement that the center develop a security plan and have it approved by the police department and/or fire department.
That’s A Lot
It can be. Depending on the community where you are seeking to locate your treatment center, zoning issues can be overwhelming. But there are ways to manage the process easily:
1. Investigate before investing. Address any applicable zoning issues before investing too much money into the project. There is nothing worse than purchasing a property that seems perfect for an alternative treatment center, only to find out later that local regulations prohibit using it for that purpose.
2. Start early. The process of addressing zoning hurdles might require navigating complex regulations and will likely take longer than expected. Don’t expect the process to move quickly and be flexible.
3. Communicate early and often with municipal officials. Engage with the city or town and solicit feedback from municipal officials on the proposal during the conceptual phase, and incorporate that feedback into the formal applications.
4. Ask for help. It can be difficult to sift through all of the municipal websites, ordinances and maps in an effort to parse out what rules the municipality has in place, where in town treatment centers are permitted, and the other miscellaneous rules and regulations that will need to be complied with in order to secure a formal approval. Enlist the help of experts, including local cannabis attorneys, who understand zoning and related rules.
Megan C. Carrier and Jennifer P. Lyon are attorneys with Sheehan Phinney, based in Manchester. Carrier is a member of the firm’s cannabis law group, and she and Lyon are members of the business litigation group. For more information, visit sheehan.com.
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