The compromise does not alter the role of local voters in controlling the number of licenses issued in most communities.
The ballot question defined the scope of local control very carefully in Chapter 94G, Section 3. The compromise makes the following changes:
- As to when local officials must go to the voters to limit the number, in communities that voted against the question, the local officials do not have to have an additional election if they impose limits before December 31, 2019. The 91 communities that voted no last November comprise 28% of the state’s population.
- As to time, place and manner regulations, it makes clear that they cannot be used to circumvent the procedures for limiting the number of establishments — if local officials wish to prohibit outlets or severely limit the number, they must go to the voters. In addition, clarifies language intended to allow the conversion of medical marijuana establishments.
It is worth noting that the ballot question bars local regulations that are “unreasonably impracticable”, a term it defines in G.L. c. 94G, s.1:
“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.
This limitation and definition are unchanged in the compromise. All town bylaws are subject to review by the Attorney General pursuant to G.L., c. 40, s.32 and the Attorney General will need to make a finding that the law is not unreasonably impracticable before approving a new local ordinance or bylaw. And, of course, an aggrieved entrepreneur could have resource to the courts if either a city ordinance or a town by-law was not compliant with the statute.
The compromise changes to Section 3 are marked in the copy immediately below:
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 activityoperate to (1) prevent the conversion of a medical marijuana establishment licensed on or before July 1, 2017 engaged in the cultivation, manufacture or sale of marijuana or marijuana products to a marijuana establishment engaged in the same type of activity under this chapter or (2) limit the number of marijuana establishments below the limits established pursuant to paragraph (2);
(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, provided, however, that, in the case of a city or town in which the majority of voters voted in the affirmative for Chapter 334 of the acts of 2016 and, after December 31, 2019 in the case of any other city or town, the city or town shall submit any by-law or ordinance for approval to the voters pursuant to the procedure in subsection (e) before adopting the by-law or ordinance if it would
sthe operation of 1 or more types of marijuana establishments within the city or town;
sthe 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
sthe 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.
(3) restrict the licensed cultivation, processing and manufacturing of marijuana that is a public nuisance;
(4) establish reasonable restrictions on public signs related to marijuana establishments provided that if a city or town enacts an ordinance or by-law above the commission’s standard, no such local ordinance or by-law may impose a standard for signage more restrictive than those applicable to retail establishments that sell alcoholic beverages within that city or town; and
(5) establish a civil penalty for violation of an ordinance or by-law enacted pursuant to this subsection, similar to a penalty imposed for violation of an ordinance or by-law relating to alcoholic beverages.
(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 per cent 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.
(c) No city or town shall prohibit the transportation of marijuana or marijuana products or adopt an ordinance or by-law that makes the transportation of marijuana or marijuana products unreasonably impracticable.
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 andA marijuana establishment or a medical marijuana treatment center seeking to operate or continue to operate in a municipality which permits such operation shall execute an agreement with the host community setting forth the conditions to have a marijuana establishment located within the host community which shall include, without limitation, all stipulations of responsibilities between the host community and the marijuana establishment or a medical marijuana treatment center. An agreement between a marijuana establishment or a medical marijuana treatment center and a host community may include a community impact fee for the host community, provided, however that the community impact fee shall be reasonably related to the costs imposed upon the city or town by the operation of a marijuana establishment and shall, in no event, amount to more than three percent of the gross sales of the establishment or be effective for longer than 5 years. 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.
(e) If an ordinance or by-law must be submitted for approval pursuant to subsection (a)(2), the following procedures will be followed:
(1) The city solicitor or town counsel shall prepare a fair and concise summary of the proposed ordinance or by-law which will make clear the number and types of marijuana establishments which will be permitted to operate under the proposed ordinance and by-law and shall be included on the ballot.
(2) A ballot shall be prepared asking “Shall this [city or town] adopt the following [by-law or ordinance]? [solicitor/counsel summary] [full text of by-law or ordinance]
(3) If the majority of the votes cast in answer to the question are in the affirmative, the city or town may adopt the by-law or ordinance, but if the majority is in the negative, the city or town shall not adopt the by-law or ordinance.
A ballot question under this subsection may be placed on the ballot at a regular or special election held by the city or town by a vote of the board of selectmen or city or town council, with the approval of the mayor, and subject to a municipal charter, if applicable.