MMLA, MMA, CMRPC The New marijuana law: how municipalities can March 10, 2017 Land use planning and zoning: issues and options for marijuana establishments Jeff bagg, principal planner The New marijuana law: how municipalities can (and should) respond

CMRPC.ORG/RECREATIONALMARIJUANA

What’s happening right now…

Attorney General beginning to issue decisions: West Bridgewater Westborough Municipalities are beginning to act: Ballots to ban Temporary moratoriums

What are the local control options 1. “Time, place, and manner” bylaw 2. Regulatory referendum (i.e. “vote of the voters”/ballot question) Prohibit Limit to 20% of package storages Less than “registered” medical use

Section 3. Local control A city or town may adopt ordinances and by-laws that impose reasonable safeguards on the operation of marijuana establishments, provided they are not unreasonably impracticable and are not in conflict with this chapter or with regulations made pursuant to this chapter and that: govern the time, place and manner of marijuana establishment operations and of any business dealing in marijuana accessories, except that zoning ordinances or by-laws shall not prohibit placing a marijuana establishment which cultivates, manufactures or sells marijuana or marijuana products in any area in which a medical marijuana treatment center is registered to engage in the same type of activity;

Section 3. Local control A city or town may adopt ordinances and by-laws that impose reasonable safeguards on the operation of marijuana establishments, provided they are not unreasonably impracticable and are not in conflict with this chapter or with regulations made pursuant to this chapter and that: govern the time, place and manner of marijuana establishment operations and of any business dealing in marijuana accessories, except that zoning ordinances or by-laws shall not prohibit placing a marijuana establishment which cultivates, manufactures or sells marijuana or marijuana products in any area in which a medical marijuana treatment center is registered to engage in the same type of activity; This is similar to language in Chapter 40A, Section 9 which allows the imposition of “conditions, safeguards and limitations on time or use”.

Section 3. Local control A city or town may adopt ordinances and by-laws that impose reasonable safeguards on the operation of marijuana establishments, provided they are not unreasonably impracticable and are not in conflict with this chapter or with regulations made pursuant to this chapter and that: govern the time, place and manner of marijuana establishment operations and of any business dealing in marijuana accessories, except that zoning ordinances or by-laws shall not prohibit placing a marijuana establishment which cultivates, manufactures or sells marijuana or marijuana products in any area in which a medical marijuana treatment center is registered to engage in the same type of activity; "Unreasonably impracticable", that the measures necessary to comply with the regulations, ordinances or by-laws adopted pursuant to this chapter subject licensees to unreasonable risk or require such a high investment of risk, money, time or any other resource or asset that a reasonably prudent businessperson would not operate a marijuana establishment”   NOTE: This language is unique and does not readily correspond to language in Chapter 40A. For example, uses protected under Chapter 40A, Section 3 includes the following language “no zoning ordinance or bylaw shall prohibit or unreasonably regulate the….”

This is similar to the language under Chapter 40A, Section 9: Section 3. Local control A city or town may adopt ordinances and by-laws that impose reasonable safeguards on the operation of marijuana establishments, provided they are not unreasonably impracticable and are not in conflict with this chapter or with regulations made pursuant to this chapter and that: govern the time, place and manner of marijuana establishment operations and of any business dealing in marijuana accessories, except that zoning ordinances or by-laws shall not prohibit placing a marijuana establishment which cultivates, manufactures or sells marijuana or marijuana products in any area in which a medical marijuana treatment center is registered to engage in the same type of activity; This is similar to the language under Chapter 40A, Section 9:   Zoning ordinances or by-laws shall provide for specific types of uses which shall only be permitted in specified districts upon the issuance of a special permit. Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law, and shall be subject to general or specific provisions set forth therein; and such permits may also impose conditions, safeguards and limitations on time or use.

Section 3. Local control A city or town may adopt ordinances and by-laws that impose reasonable safeguards on the operation of marijuana establishments, provided they are not unreasonably impracticable and are not in conflict with this chapter or with regulations made pursuant to this chapter and that: govern the time, place and manner of marijuana establishment operations and of any business dealing in marijuana accessories, except that zoning ordinances or by-laws shall not prohibit placing a marijuana establishment which cultivates, manufactures or sells marijuana or marijuana products in any area in which a medical marijuana treatment center is registered to engage in the same type of activity; The phrase “in any area” is unclear. It is not similar or comparable to any existing language under Chapter 40A. It does not correlate to a “district”, measured distance, or other geographic reference. When read together with the regulator referendum language, it is reasonable to assume that this language could be changed/interpreted to state more clearly that a recreational marijuana establishment cannot be prohibited in a district where Medical Marijuana facilities are allowed. It would also assume that a bylaw could not regulate the number of establishments in said “area” as that limitation is outlined in the referendum language.

There are at least two potential interpretations.: Section 3. Local control A city or town may adopt ordinances and by-laws that impose reasonable safeguards on the operation of marijuana establishments, provided they are not unreasonably impracticable and are not in conflict with this chapter or with regulations made pursuant to this chapter and that: govern the time, place and manner of marijuana establishment operations and of any business dealing in marijuana accessories, except that zoning ordinances or by-laws shall not prohibit placing a marijuana establishment which cultivates, manufactures or sells marijuana or marijuana products in any area in which a medical marijuana treatment center is registered to engage in the same type of activity; There are at least two potential interpretations.: A conservative interpretation would require that an establishment be registered. While it is unclear, it would be assumed that this would require a Provisional Certificate as referenced elsewhere in the law. A liberal interpretation would correspond to clarification of the phrase “area” to “district” and lowering the threshold to be where a medical marijuana center “is allowed”. It may be assumed that the most liberal interpretation will prevail based on the language requiring stricter regulation only by referendum.

Section 3. Local control A city or town may adopt ordinances and by-laws that impose reasonable safeguards on the operation of marijuana establishments, provided they are not unreasonably impracticable and are not in conflict with this chapter or with regulations made pursuant to this chapter and that: govern the time, place and manner of marijuana establishment operations and of any business dealing in marijuana accessories, except that zoning ordinances or by-laws shall not prohibit placing a marijuana establishment which cultivates, manufactures or sells marijuana or marijuana products in any area in which a medical marijuana treatment center is registered to engage in the same type of activity; If a Recreational Marijuana use must be allowed where a Medical Marijuana use is registered, this may be the only option to regulate it NOTE: this is just one possible interpretation (for discussion purposes only)

Uses must be allowed in at least one zoning district? Section 3. Local control A city or town may adopt ordinances and by-laws that impose reasonable safeguards on the operation of marijuana establishments, provided they are not unreasonably impracticable and are not in conflict with this chapter or with regulations made pursuant to this chapter and that: govern the time, place and manner of marijuana establishment operations and of any business dealing in marijuana accessories, except that zoning ordinances or by-laws shall not prohibit placing a marijuana establishment which cultivates, manufactures or sells marijuana or marijuana products in any area in which a medical marijuana treatment center is registered to engage in the same type of activity; So, what does it all mean? Site Plan Review? Uses must be allowed in at least one zoning district? NOTE: this is just one possible interpretation (for discussion purposes only)

Regulatory referendum

limit the number of marijuana establishments in the city or town, except that a city or town may only adopt an ordinance or by-law by a vote of the voters of that city or town if the ordinance or by- law: prohibits the operation of 1 or more types of marijuana establishments within the city or town; limits the number of marijuana retailers to fewer than 20 per cent of the number of licenses issued within the city or town for the retail sale of alcoholic beverages not to be drunk on the premises where sold under chapter 138 of the General Laws; or limits the number of any type of marijuana establishment to fewer than the number of medical marijuana treatment centers registered to engage in the same type of activity in the city or town. This section does not appear to be time limited and gives local control (Board of Selectman can initiate the question) Local ballot question must be filed 35 days prior to Annual Election It appears that the primary scenario will be town wide ballot vote to do one of the listed options followed by the need for a separate zoning amendment (either through Town Meeting or City Council)

limit the number of marijuana establishments in the city or town, except that a city or town may only adopt an ordinance or by-law by a vote of the voters of that city or town if the ordinance or by- law: prohibits the operation of 1 or more types of marijuana establishments within the city or town; limits the number of marijuana retailers to fewer than 20 per cent of the number of licenses issued within the city or town for the retail sale of alcoholic beverages not to be drunk on the premises where sold under chapter 138 of the General Laws; or limits the number of any type of marijuana establishment to fewer than the number of medical marijuana treatment centers registered to engage in the same type of activity in the city or town. A ballot question to prohibit will be pursued by communities. It should be noted that the potential for the vote to fail does exist. Refers to number of licensed package stores. Quota is based on one per every 5,000 of population. Requires that a municipality have a registered facility.

limit the number of marijuana establishments in the city or town, except that a city or town may only adopt an ordinance or by-law by a vote of the voters of that city or town if the ordinance or by- law: prohibits the operation of 1 or more types of marijuana establishments within the city or town; limits the number of marijuana retailers to fewer than 20 per cent of the number of licenses issued within the city or town for the retail sale of alcoholic beverages not to be drunk on the premises where sold under chapter 138 of the General Laws; or limits the number of any type of marijuana establishment to fewer than the number of medical marijuana treatment centers registered to engage in the same type of activity in the city or town. The MMLA has raised several important questions that must be resolved as they may relate to whether a community could be vulnerable by not putting this question to referendum. Several communities have asked whether such a prohibition vote eliminates the option for a group to force an onsite consumption question on the ballot. There remain issues and questions about the potential for a referendum vote to pass but potential fail to achieve a 2/3 vote at Town Meeting. Could both of the referendum questions re-occur in the future?

limit the number of marijuana establishments in the city or town, except that a city or town may only adopt an ordinance or by-law by a vote of the voters of that city or town if the ordinance or by-law: prohibits the operation of 1 or more types of marijuana establishments within the city or town; limits the number of marijuana retailers to fewer than 20 per cent of the number of licenses issued within the city or town for the retail sale of alcoholic beverages not to be drunk on the premises where sold under chapter 138 of the General Laws; or limits the number of any type of marijuana establishment to fewer than the number of medical marijuana treatment centers registered to engage in the same type of activity in the city or town. A community pursuing a prohibition ballot question should understand the potential for the vote to fail. A multipronged approach may be warranted (one which initiates a ballot question followed by a Town Meeting action, such as for a temporary moratorium)

On-site consumption referendum

(b) The city council of a city and the Board of Selectmen of a town shall, upon the filing with the city or town clerk of a petition (i) signed by not fewer than 10 percent of the number of voters of such city or town voting at the state election preceding the filing of the petition and (ii) conforming to the provisions of the General Laws relating to initiative petitions at the municipal level, request that the question of whether to allow, in such city or town, the sale of marijuana and marijuana products for consumption on the premises where sold be submitted to the voters of such city or town at the next biennial state election. If a majority of the votes cast in the city or town are not in favor of allowing the consumption of marijuana or marijuana products on the premises where sold, such city or town shall be taken to have not authorized the consumption of marijuana and marijuana products on the premises where sold. This language suggests that if a petition is filed, the Board of Selectmen must place the question on the ballot. This is different than the language regarding the preceding referendum section which gave the Board of Selectmen authority over the process. Here, a municipality is subject to coordination of a modest number of signatures. This is critical given the close nature of the “yes”/”no” vote breakdown on Question 4 across the state.

(b) The city council of a city and the Board of Selectmen of a town shall, upon the filing with the city or town clerk of a petition (i) signed by not fewer than 10 percent of the number of voters of such city or town voting at the state election preceding the filing of the petition and (ii) conforming to the provisions of the General Laws relating to initiative petitions at the municipal level, request that the question of whether to allow, in such city or town, the sale of marijuana and marijuana products for consumption on the premises where sold be submitted to the voters of such city or town at the next biennial state election. If a majority of the votes cast in the city or town are not in favor of allowing the consumption of marijuana or marijuana products on the premises where sold, such city or town shall be taken to have not authorized the consumption of marijuana and marijuana products on the premises where sold. This language is critical and interpretation should be confirmed. However, it is different than the previous section which is not time restricted thus allowing a Board of Selectmen to act proactively. This language appears to set a future election as the first opportunity for this question to be forced onto the ballot (this would give communities some time to consider this implication). It has been noted that nothing appears to prevent the early filing of such a petition – even though action may not occur until November 2018. The K&P memo notes that the Secretary of State requirements may require filing as early as August 2017.

There are significant questions here: (b) The city council of a city and the Board of Selectmen of a town shall, upon the filing with the city or town clerk of a petition (i) signed by not fewer than 10 percent of the number of voters of such city or town voting at the state election preceding the filing of the petition and (ii) conforming to the provisions of the General Laws relating to initiative petitions at the municipal level, request that the question of whether to allow, in such city or town, the sale of marijuana and marijuana products for consumption on the premises where sold be submitted to the voters of such city or town at the next biennial state election. If a majority of the votes cast in the city or town are not in favor of allowing the consumption of marijuana or marijuana products on the premises where sold, such city or town shall be taken to have not authorized the consumption of marijuana and marijuana products on the premises where sold. There are significant questions here: Concern over the variation of licenses noted in the Law, including “special event” licensing, indoor and outdoor cafes, and non-smoked edibles. Concern regarding the lack of local oversight, inspection, and monitoring of activities. Zoning is a blunt tool, and additional local oversight may be necessary. Compare to alcohol licensing. Edibles allow a potential work-around to existing smoking prohibitions and standard Board of Health standards. This is a significant departure from sales-like uses. If approved, the creation of subsequent zoning and other local oversight may be required.

This requires careful review and interpretation. (b) The city council of a city and the Board of Selectmen of a town shall, upon the filing with the city or town clerk of a petition (i) signed by not fewer than 10 percent of the number of voters of such city or town voting at the state election preceding the filing of the petition and (ii) conforming to the provisions of the General Laws relating to initiative petitions at the municipal level, request that the question of whether to allow, in such city or town, the sale of marijuana and marijuana products for consumption on the premises where sold be submitted to the voters of such city or town at the next biennial state election. If a majority of the votes cast in the city or town are not in favor of allowing the consumption of marijuana or marijuana products on the premises where sold, such city or town shall be taken to have not authorized the consumption of marijuana and marijuana products on the premises where sold. The MMLA memo cites some ambiguity about whether a community is “taken to have authorized” on premise consumption if there is no ballot question and vote dis-allowing it. This requires careful review and interpretation.

More regarding on-site consumption… The language refers to “marijuana” and “marijuana products”. The existing opportunities for edibles and other methods are innovative and there is no way to fully understand how this aspect of marijuana products may evolve once legalized. The Act defines “marijuana products” as: “Products that have been manufactured and contain marijuana or an extract from marijuana, including concentrated forms of marijuana and products composed of marijuana and other ingredients that are intended for use or consumption, including edible products, beverages, topical products, ointments, oils, and tinctures.”

Section 4 (b) (1) gives the Cannabis Control Commission the following authority: (b) In furtherance of the intent of this act, the commission may also adopt regulations in accordance with chapter 30A of the General Laws which: Establish and provide for issuance of additional types or classes of license to operate marijuana-related businesses, including licenses that authorize only limited cultivation, processing, manufacture, possession or storage of marijuana or marijuana products to consumers, licenses that authorize the consumption of marijuana or marijuana products on the premises where sold, licenses that authorize the consumption of marijuana at special events in limited areas and for a limited time and licenses intended to facilitate scientific research or education.”

What’s missing?

Local licensing Will it be “unreasonably impracticable” to create a local license requirement when you compare a retail dispensary to other uses that are commonly regulated both by land use and local licensing?

State Alcohol Licensing Procedure (may vary depending on municipality) Applicant submits to Town/City Local public hearing is held Abutters notice. May be approved or denied If approved at local level, application forwarded to ABCC ABCC sends approval back to Town/City for issuance Proposed Recreational Marijuana License procedure (subject to CCC regulations) Applicant submits to State CCC CCC forwards to Town/City for compliance with Bylaws/Ordinance consistent with Section 3 If compliant with local requirements, CCC may issue subject to criteria in Section 4 (a)(3)

Looking ahead to model bylaws: Consider municipal application requirements that accurately reflect and/or hinge on State CCC process Consider “finding” criteria that are quantitative, clear, and fact based Consider parking needs, traffic, pedestrian queuing/lines if high demand is expected Be prepared and ready to amend to match subsequent “opening up” of license options and/or onsite consumption

A few last notes:

(3) establish reasonable restrictions on public signs related to marijuana establishments. Can/should municipalities be considering temporary moratoriums for signs?

Host Community Agreements No agreement between a city or town and a marijuana establishment shall require payment of a fee to that city or town that is not directly proportional and reasonably related to the costs imposed upon the city or town by the operation of a marijuana establishment. Any cost to a city or town by the operation of a marijuana establishment shall be documented and considered a public record as defined by clause Twenty-Sixth of section 7 of chapter 4 of the General Laws.

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