Acceptance of General Laws Chapter 64N, Section 3 - a Local Tax Option pertaining to the sale of marijuana and marijuana products

Petitioner: Department of Planning and Community Development

Annual Town Meeting, May 2018

In November 2016, Brookline residents voted (59.98% in favor) to legalize recreational Marijuana uses proposed by Question 4, including retail (sales to the ultimate consumer), manufacturing, cultivation, and lab testing uses. The new law as amended by the legislature in July 2017 is codified at Massachusetts General Laws Chapter 94G and 94I. It establishes a new State agency called the Cannabis Control Commission that is responsible for issuing State regulations and providing State oversight of Marijuana Establishments. The State law does not provide any cap on the number or type of Marijuana Establishments the Cannabis Control Commission may license in a particular community. In addition, it sets a strict timeline (90 days) for Cannabis Control Commission decision-making on applications, and it provides limited bases for Cannabis Control Commission application denials (a conflict with a local by-law being one such basis). The new law prohibits State licensing of operations within 500 feet of K-12 schools unless a local law reduces that distance. The Cannabis Control Commission's draft regulations propose a default buffer zone (in the event no local one is established) of 500 feet from public or private schools, daycare centers, or any facility in which children commonly congregate. The new law permits communities to create their own caps and siting measures, and to otherwise regulate the time, place and manner of Marijuana Establishment operations, with some restrictions.

In November 2013, after the State legalized medical Marijuana, the Town enacted a General By-Law Select Board local licensing scheme for medical Marijuana treatment centers (known as "RMDs") modeled after local licensing schemes for liquor, restaurants, hotels, etc. Town Meeting also passed at that time a Zoning By-Law governing the siting of RMDs and allowing them by special permit. Under the medical Marijuana law, as with the new recreational Marijuana law, the State (in that case, the Department of Public Health) licensed the facilities and provided State oversight. The State medical Marijuana law created certain caps on the numbers of such facilities around the State. The purpose of creating a medical Marijuana local licensing scheme in addition to the existing medical Marijuana State licensing scheme was to provide for a degree of local oversight over such business operations, analogous to that inherent in the liquor licensing process (which entails dual State and local licensing and oversight). With regard to implementation of the Town's medical Marijuana local licensing scheme, in late 2015, the Select Board, after a public process and public hearing, issued a license to the New England Treatment Access, Inc. ("NETA") that contained license conditions recommended by Town Departments that included Health, Police, and Transportation. It appears that the local licensing model established for medical Marijuana and implemented in the case of NETA has been
successful and has possibly provided some initially concerned community members with a degree of confidence in the operation by virtue of a measure of local in addition to State oversight.

The Town currently has in effect a Table of Uses that provides for a moratorium on recreational Marijuana Establishments that ends the earlier of December 2018 or when the AGO approves amendments to the Table of Uses. However, the AGO has stated publicly that there may be a question as to whether the Cannabis Control Commission will honor moratoria in its applications decision-making. Moreover, it can take up to three (3) months or more for the AGO to issue a decision on whether or not to approve a by-law. The Cannabis Control Commission license applications period opens on April 1, 2018, and the Cannabis Control Commission could begin issuing licenses as early as June 1, 2018. The applications of existing RMDs (Brookline has 1, NETA) that wish to also sell recreational Marijuana receive priority Cannabis Control Commission review. Due to the above timeline, Town Meeting should pass measures at the 2018 Annual Town Meeting if it wishes to have Town measures in place that will shape the Cannabis Control Commission's license decision-making before the moratorium period concludes and the Cannabis Control Commission begins issuing licenses. Notably, Zoning By-Laws take effect on the date of Town Meeting's vote, pursuant to M.G.L. c. 40A, section 5. General By-Laws do not take effect until satisfaction of the requirements of M.G.L. c. 40, section 32, including AGO approval.

The Select Board's Licensing Review Committee (LRC), with input from the Planning Board (through Planning Department staff who attended the LRC meetings), Town residents who attended the LRC's publicly noticed meetings, NETA (through its representatives in attendance at some of the LRC's meetings), and Town Departments that included Planning, Building, Police, Fire, Health and Town Counsel's Office, has worked to advance a number of proposals for this Town Meeting to provide for local regulation and oversight of Marijuana uses in time for the beginning of Cannabis Control Commission licensing. A detailed description of the LRC's and Town department's process is set forth in Section 2 below. Section 3 below contains a more detailed description of the foregoing Warrant Article. Please refer to the Explanations to the other Warrant Articles that came out of the process (described below) for more detailed information about them.

The first proposal that came out of the process is this Warrant Article 17. It is proposed with goals similar to the RMD licensing scheme and related Zoning By-Law. It proposes to exercise a measure of local control over the siting, density, and number of Marijuana Establishments within the Town (analogously, the State liquor law, Chapter 138, provides for caps on the number of liquor licenses in the Town based on the census; the medical Marijuana law also had provided for certain caps). The proposed Zoning By-Law also proposes regulatory measures modeled after those contained in the NETA Select Board license conditions which are similarly the result of input from various Town Departments such as Health, Police, Fire, and Building. The zoning proposal contains regulatory measures for Marijuana Establishments such as a prohibition on sale of Marijuana to minors, compliance with requirements for use of hazardous materials in the extraction process, and other measures targeted toward the promotion of the public health and safety. It provides for a flexible special permit application process providing for Department input. It proposes a cap on the number of special permits issued to Storefront Marijuana Retailers that corresponds to the cap on the number of Select Board Marijuana Retailer licenses established by a General By-Law in effect (see the second item described below). It proposes "default" caps that roughly mirror the caps proposed in Warrant Article 18 (see the paragraph below) in the event a General By-Law cap is not in effect at the time of a special permit application (e.g., because the AGO has not yet approved the proposed General By-Law), since Zoning By-Laws take effect on the date of Town Meeting's vote, and Cannabis Control Commission licensing could begin on June 1.

A second Marijuana-related Warrant Article 18 proposes a new Article to the Town's General By-Laws entitled "Marijuana Establishments," proposing a Select Board licensing scheme similar to that the Town established for RMDs in 2013 and to that which the State legislature wrote into the State liquor laws. To date, the AGO has not considered a by-law proposal for a local licensing scheme under the new recreational Marijuana law, and has publicly stated that it has not yet determined whether or not it will be approving such proposals. On the other hand, the AGO has already approved special permit schemes established in other communities. Therefore, the above proposes a Zoning By-Law providing for siting by special permit (along the lines of what the AGO already approved in another community) as well as a general by-law providing for a Select Board local licensing process. It is contemplated that the Select Board Marijuana Establishment license will entail an annual renewal (unless the license states a different term, e.g., in the event the Cannabis Control Commission creates on-day licenses), while the special permit is not proposed to be time-limited (based on recent guidance from the State suggesting that local licensing schemes will be approved). The two contain much the same regulatory provisions in contemplation of the possibility that a majority less than 2/3 (the super-majority required to pass Zoning By-Laws) may be in favor of some or all of the language. In addition, there may be gray areas pertaining to whether certain types of regulatory measures are more appropriate for a Zoning By-Law versus a general by-law. Finally, having both a regulatory special permit scheme and a Select Board licensing scheme will assure strong local oversight over these businesses in partnership with the State. Therefore, a "boots and suspenders" approach is proposed, and the language is generally included in both.

With regard to the proposed caps set forth in this Warrant Article and in Warrant Article 18 pertaining to the various types of Marijuana Retailers, the Town Moderator has determined that he would consider motions at Town Meeting to increase or eliminate caps to be within the scope of the original article. He would not consider motions to decrease caps to be within the scope. Therefore, a third Warrant Article 19 for this Town Meeting proposes a Town Meeting motion to set lower caps for Marijuana Retailers than proposed by Warrant Article 18 (again, a ban is not proposed, given that 60% of Town voters approved Question 4 in November 2016).

A fourth Marijuana-related Warrant Article 20 for this Town Meeting proposes a new Article to the General By-Laws pertaining to general Marijuana- and Hemp-related conduct within the Town and on Town property that is entitled "Marijuana and Hemp, and Marijuana and Hemp Products."

A fifth Marijuana-related Warrant Article 21 for this Town Meeting proposes amendments to certain sections of Article 10 of the Town's By-Laws designating the Town Departments responsible for enforcement of the proposed new Marijuana-related Articles to the General By-Laws.

The sixth and final Marijuana-related Warrant Article 22 for this Town Meeting proposes to adopt the local option tax on recreational Marijuana sales.

Official Town Meeting Vote Select Board Advisory Board

Favorable Action

Favorable Action

Favorable Action




Final Result:

Favorable Action

Community Organization Recommendations
PAX Green Caucus

Favorable Action

Official Text of the Article

VOTED: That the Town of Brookline accept G.L. c. 64N, section 3 to impose an excise on the retail sales of marijuana for adult use at the rate of 3 percent.…