Attorney Guides Towns on Local Options For Marijuana Regulation
LENOX, Mass. — Attorney Raymond Miyares is advising towns to adopt moratoriums on recreational marijuana — six months ago.
Miyares is legal counsel for a number of towns across the state. He says the timeline for implementation of recreational marijuana is putting towns in the position of being "stampeded" with little chance to regulate.
"It seems to me that most towns are not going to be ready to write their zoning bylaws next spring," Miyares said.
But that's when something will need to be on the books in order to limit where such facilities can go. The law allows for marijuana retail to be allowed anywhere a town is zoned for retail; manufacturing in all manufacturing zone; and testing in all testing zones. When a prospective business applies for a license from the state, towns need to have those laws in place if they want to object to the issuance.
Town meetings are typically held in April or May, when bylaws can be passed. But, the state isn't releasing its regulations until March, giving little time for local towns to craft bylaws in sync with that language and go through the necessary public hearing and notification process.
"You will be writing something that almost certainly will conflict with state regulations," Miyares said of attempts to craft bylaws at this point. "Everyone is well advised to sit tight and wait until those regulations are out so when you are writing zoning provisions, you are writing something that is consistent."
Only Lee and Egremont have placed moratoriums, which temporarily halts the establishment of marijuana businesses. Miyares said the attorney general's office is only approving moratoriums through 2018, so if those two towns don't pass bylaws this upcoming string, both will have a few months in 2019 before town meeting when no local restrictions will be in place.
"We're being stampeded," he said.
Miyares returned to Town Hall on Thursday to provide an update on the marijuana regulations to local officials. He had previously presented in January after the law was passed through a statewide ballot. Berkshire Regional Planning Commission convened both meetings to keep local officials up to date with ins and outs of local control.
"We thought this was a very important topic that will be facing all of our municipalities," BRPC Assistant Director Tom Matuszko said. "We are very lucky to have Ray Miyares again to give a presentation. He's been very generous with his time for this."
Voters across the state approved legalizing recreational marijuana in November. That established a Cannabis Control Commission in state government to oversee it; included a 3.75 percent excise tax; gave towns a 3 percent optional local tax; had limited land use regulations.
Shortly afterward, the Legislature put a six-month delay in the process and completely rewrote the law.
The commission was reconfigured from having three people all appointed by the state treasurer to five — one from the treasurer, one from the governor, one from the attorney general, and two from a majority vote of all three. Those serving in each position are required to have certain backgrounds. That group, which will be fully formed on Friday, will put together state regulations on the industry by March 15.
"They will have regulatory authority over medical marijuana facilities as well," Miyares said, medical marijuana had been under the oversight of the Department of Public Health.
Lawmakers also changed the taxation levels. The excise tax was increased to 10.75 percent, on top of the 6.25 percent sales tax.
"Basically the state is raking in 17 percent of the sales and the local municipality has the option of adding three more percent for a total of 20," Miyares said.
The law also increased the membership of a Cannabis Advisory Board from 15 members to 25.
Meanwhile, the time was "streamlined considerably." Last Dec. 15, individuals were allowed to possess and cultivate marijuana for personal use, with some limitations on the amounts.
The commission puts forth regulations on March 15. On April 1, those interested in the commercial licenses are allowed to apply. And on June 1, the licenses can be issued.
Back in January, Miyares had said pulling a building permit for such a facility can happen at any time, and that remains true.
"I was predicting there would be a run on building permits soon after Dec. 15 and I was completely wrong. I am not aware of any building permits," he said on Thursday.
But that timeline gives small towns few chances to craft and pass bylaws to regulate retail. Miyares said 90 percent of the bylaws in place say nothing about recreational marijuana facilities — only a few towns had included a sentence about retail when they passed bylaws on medical marijuana, which was legalized five years ago.
If towns want to limit the number of retailers to fewer than 20 percent of the number of package stores or an equal number of medical marijuana facilities, or if a town wants to ban it altogether, the process gets even more complicated than passing land-use regulations.
"The process you have is based on whether your city or town voted yes or no on Question 4 [that legalized retail marijuana]. It is the first time I've ever seen a statute that tied a legal consequence to a previous vote, that the voters didn't know they were voting on," Miyares said.
For the towns that voted against the ballot question in November, the process is easier and can be done by a simple town meeting or city council vote.
"This was not a question that received unanimous approval, except in Berkshire County," Miyares said.
All Berkshire cities and town approved it. That makes banning or limiting the number of shops much more difficult.
"The fact that a town voted yes should not, in my mind, mean that people were voting to have retail facilities in their own towns — they may have just been saying we think weed should be allowed and the rest of it is details," he said.
To limit below 20 percent of liquor stores or ban it altogether, Miyares said there needs to be both a ballot vote and a town meeting vote. Town counsel needs to write a summary of the proposed bylaw to appear on the ballot, put the full text of it on a ballot, receive a majority vote at the election, and get a 2/3 majority vote from town meeting or city council.
"The process seems to assume that this is the order you are going to go in. You are going to do the ballot question first and then it is going to go to town meeting or the city council. That's lunacy. It makes far more sense to go to town meeting or city council and get your bylaw passed. And then it can go to the ballot," Miyares said.
He is suggesting the town go to town meeting first, that way if voters opt to change anything, the ballot procedure doesn't have to be redone. The approved bylaw from town meeting can then be the one placed on the ballot.
"It is nutty to suggest that the ballot question should go first," Miyares said.
If towns do nothing, then the facilities fall into the zoning categories already in place. Depending on municipal schedules, putting a ban or limiting the facilities could be a two-year process.
So far, only six towns have been approved for total bans: East Bridgewater, Foxborough, Medfield, North Reading, Reading, and Westborough. Many towns have adopted moratoriums to buy time to get zoning or general bylaws in place.
What won't be legal in any town right away is on-premises consumption. Miyares said if a city or town wants to allow such businesses, it needs to be approved at the ballot during a state election. The next state election will be in 2018. But, a city council or board of selectmen aren't able to put it on the ballot. That question must be done by a petition from 10 percent of the registered voters.
"It is going to be hard but I imagine there will be places that will go through that and that should make the election in Nov. 2018 even more interesting," he said.
When the law is in place, the state commission is where the proprietor will submit any license application. From there, the state notifies the town and gives the municipality 90 days to object; the objection must be correlated to specific laws on the books at the time. If the town doesn't respond at all, then the license can be issued regardless of the local condition.
"This specially says if you are not finished, you haven't gone through the whole prohibition process, you can't object," he said.
Miyares said he has a concern that the law doesn't specify where exactly that notification is going to and who is supposed to respond. He fears the notifications could get lost in the shuffle with nobody knowing exactly who could get the notification.
Miyares also added that facilities will be required to have a host community agreement. He said towns have an additional option of a 3 percent community impact fee, which will be eyed to collect additional revenue for increased police or public health services. But, he said all of those costs must be proven and the agreement can only last five years.
Tags: bylaws, marijuana,
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