Presentation at Hazy Days: A SWAP/MWRC Forum on Planning for Recreational Marijuana, 2/14/2017

1. Tuesday, February 14, 2017
Review of Local Control
Jeff Bagg, Principal Planner
 What is happening right now
 What are the local control options
 What is missing
HAZY DAYS:
PLANNING FOR RECREATIONAL MARIJUANA

2. CMRPC.ORG/RECREATIONALMARIJUANA

3.  What’s happening right now…

7. The Westborough example (the hat trick)

10.  What are the local control options
1. “Time, place, and manner” bylaw
2. Regulatory referendum (i.e. “vote of the voters”/ballot question)

11. Section 3. Local control
(a)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:
(1)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;

12. Section 3. Local control
(a)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:
(1)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”.

13. Section 3. Local control
(a)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:
(1)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 language is defined in the law as:
"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….”

14. Section 3. Local control
(a)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:
(1)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.

15. Section 3. Local control
(a)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:
(1)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.
The term “area” is too vague and 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 by the legislature 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.

16. Section 3. Local control
(a)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:
(1)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.

17. Section 3. Local control
(a)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:
(1)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)

18. Section 3. Local control
(a)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:
(1)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)

20. Regulatory referendum

21. (2)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:
(i)prohibits the operation of 1 or more
types of marijuana establishments within
the city or town;
(ii)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
(iii)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 “regulatory referendum”
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)

22. (2)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:
(i)prohibits the operation of 1 or more
types of marijuana establishments within
the city or town;
(ii)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
(iii)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.

23. (2)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:
(i)prohibits the operation of 1 or more
types of marijuana establishments within
the city or town;
(ii)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
(iii)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.

24. (2)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:
(i)prohibits the operation of 1 or more types
of marijuana establishments within the city
or town;
(ii)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
(iii)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)

25. On-site consumption referendum

26. (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.

27. (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.

28. (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:
1. Concern over the variation of licenses noted in
the Law, including “special event” licensing,
indoor and outdoor cafes, and non-smoked
edibles.
2. 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.
3. Edibles allow a potential work-around to existing
smoking prohibitions and standard Board of
Health standards.
4. This is a significant departure from sales-like
uses. If approved, the creation of subsequent
zoning and other local oversight may be required.

29. (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.

30. 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.”

31. 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:
(1)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.”

33. What’s missing?

34. 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?

35. State Alcohol Licensing Procedure
The first step in the licensing process is the granting of an application by the Local Licensing Authorities (the
“LLA”). The second step is approval by the Alcoholic Beverages Control Commission (the “ABCC”). If the ABCC
approves the license, the LLA issues the license. An applicant for an alcoholic beverages license may not
operate a licensed premise until the LLA issues a license…

36.  A few last notes:

37. (3) establish reasonable restrictions on public signs related to
marijuana establishments.

38. 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.

39.  END