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1/20/2017

AG OK's local temporary moratorium on recreational marijuana businesses

Published on Massachusetts Municipal Association (https://www.mma.org )

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AG OK's local temporary moratorium on recreational marijuana businesses 0,

January 19, 2017

The Attorney General's Office yesterday approved a local zoning bylaw that imposes a temporary moratorium on recreational marijuana businesses in the town.

The AG's Office wrote that the moratorium is "consistent with the Town's authority to impose reasonable time limitations on development so that the Town can engage in a legitimate planning study."

The AG's ruling on the bylaw from the town of West Bridgewater is expected to serve as guidance for municipalities across the state that seek adequate time to establish local rules and procedures for recreational marijuana activities within their borders, or to hold a local vote on whether to allow recreational marijuana businesses at all.

At least 20 communities have either enacted a moratorium or begun the process to bring the matter before their spring town meeting or municipal election.

The West Bridgewater bylaw, approved at a special town meeting last Dec. 14, institutes a moratorium on "the use of land or structures for a recreational marijuana establishment" through June 30, 2018. The AG's Office found that the moratorium is allowable because it is "limited in time period and scope."

At the statewide election last November, voters approved a law allowing the cultivation, distribution, possession and use of marijuana for recreational purposes. On Dec. 15, it became legal for Massachusetts residents age 21 or older to possess, grow, use and "gift" certain amounts of marijuana, but the sale and distribution of recreational marijuana does not become legal until a new Cannabis Control Commission issues regulations regarding implementation of the law.

The law approved by voters set a deadline of Sept. 15, 2017, for the regulations, but the Legislature in late December enacted a six-month extension, which the governor signed on Dec. 30. So the Cannabis Control Commission now has until March 15, 2018, to issue regulations.

The town of West Bridgewater was seeking the opportunity to review the regulations governing this new form of business before taking local action.

The town's bylaw states: "The regulation of Recreational Marijuana Establishments and Marijuana Retailers raise novel and complex legal, planning, and public safety issues, and the Town needs time to study and consider the regulation of Recreational Marijuana Establishments and Marijuana Retailers ... as well as to address the potential impact of the State regulations on local zoning and to undertake a planning process to consider amending the Zoning Bylaw regarding regulation of

https://www.mma.org/print/16922 1/2

1/20/2017 AG OK's local temporary moratorium on recreational marijuana businesses

Recreational Marijuana Establishments and Marijuana Retailers and other uses related to the regulation of recreational marijuana"

The AG's Office ruled that towns retain the authority to "impose reasonable time limitations" ... "when the stated intent is to manage a new use, such as recreational marijuana establishments" and there is a need for further study of a complex matter. The ruling did not, however, identify a timeframe for what would be considered a "reasonable time limitation."

Under state law, general and zoning bylaws cannot take effect unless the town has satisfied posting/publishing requirements and the AG's Office has ruled that the bylaw is within the town's power and does not conflict with state laws or the state constitution.

The recreational marijuana law allows for municipalities to adopt ordinances or bylaws that regulate the "time, place, and manner of operations" of recreational marijuana facilities, so long as such bylaws or ordinances are not "unreasonably impracticable."

Local governments seeking to limit the number of marijuana dispensaries to less than 20 percent of the number of liquor licenses issued for the municipality will need to have that limit or ban approved by "a vote of the voters," construed by many experts to be a referendum at the next available election.

Legislative leaders have indicated that they will consider further refinements to the law during the current formal session. Such changes could include adjusting the level of revenue to be collected under the new law, to ensure that the revenue is at least sufficient to cover the costs of regulation, or changes to the composition of the Cannabis Control Commission and/or the Cannabis Advisory Board.

• Download letter from Attorney General's Office approving West Bridgewater bylaw [31 (125K PDF)

Written by MMA Publications Editor & Web Director John Ouellette

Source URL: https://www.mma.org/ag-o10/0ET/080 °/099s-local-temoorary-moratorium-recreational-marijuana-businesses

https://wwwmma.org/print/16922 2/2

MAURA HEALEY

ATTORNEY GENERAL

THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL

CENTRAL MASSACHUSETTS DIVISION 10 MECHANIC STREET, SUITE 301

WORCESTER, MA 01608 (508) 792-7600

(508) 795-1991 fax www.mass.gov/ago

January 18, 2017

Anne G Iannitelli, Town Clerk Town of West Bridgewater 65 North Main Street West Bridgewater, MA 02379

Re: West Bridgewater Special Town Meeting of December 14, 2016 - Case # 8242 Warrant Article # 2 (Zoning)

Dear Ms. Iannitelli:

Article 2 — We approve the amendments adopted under Article 2 at the West Bridgewater Special Town Meeting of December 14, 2016 because, as explained below, the temporary moratorium on recreational marijuana establishments is consistent with the Town's authority to impose reasonable time limitations on development so that the Town can engage in a legitimate planning study.

The amendments adopted under Article 2 amend the Town's zoning by-laws to add a new Section 10.1, "Temporary Moratorium on the Sale and Distribution of Recreational Marijuana." The new Section 10.1 institutes a temporary moratorium, through June 30, 2018, on the use of land or structures for a Recreational Marijuana Establishment and Marijuana Retailer (as defined in Section 10.1.2). The stated purpose of the temporary moratorium is:

By vote at the State election on November 8, 2016, the voters of the Commonwealth approved a law regulating the cultivation, distribution, possession and use of marijuana for recreational purposes. The law provides that it is effective on December 15, 2016 and the Cannabis Advisory Board is required to issue regulations regarding implementation by September 15, 2017.111

Currently under the Zoning Bylaw, Recreational Marijuana Establishments and Marijuana Retailers are not a permitted use in the Town and any regulations promulgated by the State Cannabis Advisory Board are expected to provide guidance to the Town in regulating Recreational Marijuana Establishments and Marijuana Retailers.

1 We note that it is the Cannabis Control Commission, not the Cannabis Advisory Board, that is charged with issuing regulations. See Section 4(a) of Chapter 94G (as amended by Chapter 351 of the Acts of 2016).

Further, the ballot measure establishes two important provisions that require ballot action by the Town prior to the adoption of zoning. First, the Town must, by ballot, determine whether it will issue licenses for Recreational Marijuana Establishments and Marijuana Retailers and second, by ballot that cannot occur before November 6, 2018, the next biennial state election, on whether to allow on-site consumption of marijuana products should the Town decide to allow licenses for such facilities.E21

The regulation of Recreational Marijuana Establishments and Marijuana Retailers raise novel and complex legal, planning, and public safety issues and the Town needs time to study and consider the regulation of Recreational Marijuana Establishments and Marijuana Retailers and address such novel and complex issues, as well as to address the potential impact of the State regulations on local zoning and to undertake a planning process to consider amending the Zoning Bylaw regarding regulation of Recreational Marijuana Establishments and Marijuana Retailers and other uses related to the regulation of recreational marijuana. The Town intends to adopt a temporary moratorium on the use of land and structures in the Town for Recreational Marijuana Establishments and Marijuana Retailers so as to allow the Town sufficient time to engage in a planning process to address the effects of such structures and uses in the Town and to adopt provisions of the Zoning Bylaw in a manner consistent with sound land use planning goals and objectives.

We approve this temporary moratorium because it consistent with the Town's authority to "impose reasonable time limitations on development, at least where those restrictions are temporary and adopted to provide controlled development while the municipality engages in comprehensive planning studies." Sturges v. Chilmark, 380 Mass. 246, 252-253 (1980). Such a temporary moratorium is clearly within the Town's zoning power when the stated intent is to manage a new use, such as recreational marijuana establishments, and there is a stated need for "study, reflection and decision on a subject matter of [some] complexity." W.R. Grace v. Cambridge City Council, 56 Mass. App. Ct. 559, 569 (2002) (City's temporary moratorium on building permits in two districts was within city's authority to zone for public purposes.) The time limit West Bridgewater has selected for its temporary moratorium (through June 30, 2018) appears to be reasonable in these circumstances, where the Cannabis Control Commission regulations have not yet been issued and those regulations "are expected to provide guidance", to the Town. 3 Section 10.1.1. The moratorium is limited in time period and scope (to the use of land

2 Although not determinative of our decision on Article 2, we note that this text in Article 2 does not clearly reflect the language of the state ballot question passed on November 8, 2016 (Chapter 334 of the Acts of 2016). First, it is not clear from the state ballot question that a town has the power to issue a "license" for marijuana establishments or marijuana retailers. The state ballot question appears to establish the Cannabis Control Commission as the sole licensing authority. See G.L. c. 94G, § 5. The state ballot question does indicate that a town may prohibit the operation of one or more types of marijuana establishments in the town, but whether a complete prohibition on such establishments must be made by by-law vote or town ballot vote (or both) is not clear from the text of the state ballot question. See G.L. c. 94G, § 3(a) (2).

3 We note that Chapter 351 of the Acts of 2016, approved by the Governor on December 30, 2016 and effective immediately as an emergency law, extends the time period for the issuance of the regulations by six months to

2

and structures for recreational marijuana establishments and marijuana retailers), and thus does not present the problem of a rate-of-development bylaw of unlimited duration which the Zuckerman court determined was unconstitutional. Zuckerman v. Hadley, 442 Mass. 511, 512 (2004) ("[A]bsent exceptional circumstances not present here, restrictions of unlimited duration on a municipality's rate of development are in derogation of the general welfare and thus are unconstitutional.")

Because we find the amendments adopted under Article 2 are clearly within the Town's zoning power, and otherwise do not conflict with the laws or Constitution of the Commonwealth, (see Bloom v. Worcester, 363 Mass. 136, 154 (1973)), we approve them.

Note: Pursuant to G.L. c. 40, § 32, neither general nor zoning by-laws take effect unless the Town has first satisfied the posting/publishing requirements of that statute. Once this statutory duty is fulfilled, (1) general by-laws and amendments take effect on the date these posting and publishing requirements are satisfied unless a later effective date is prescribed in the by-law, and (2) zoning by-laws and amendments are deemed to have taken effect from the date they were approved by the Town Meeting, unless a later effective date is prescribed in the by-law.

Very truly yours,

MAURA HEALEY ATTORNEY GENERAL

grayetod ef 9fley By: Margaret J. Hurley Chief, Central Massachusetts Division Director, Municipal Law Unit 10 Mechanic Street, Suite 301 Worcester, MA 01608 (508) 792-7600 ext. 4402

cc: Town Counsel David Gay

March 15, 2018. (See Section 11 of Chapter 351 of the Acts of 2016). This amendment supports the conclusion that a moratorium through June 30, 2018 is reasonable in order to provide the Town time to study and consider the regulations and engage in a planning process within the context of the regulations.

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1/20/2017 Section 1

"Farmer", a person substantially engaged in the occupation of farming which shall include, but not be limited to, farming in all its branches, the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural, aquacultural, floricultural or horticultural commodities, the growing and harvesting of forest products upon forest land, the raising of livestock including horses, the keeping of horses as a commercial enterprise, the keeping and raising of poultry, swine, cattle and other domesticated animals used for food purposes, bees, fur-bearing animals, and any forestry or lumbering operations, performed by a farmer engaged in agriculture or farming as herein defined, or on a farm as an incident to or in conjunction with such farming operations including, but not limited to, preparations for market, delivery to storage or to market or to carriers for transportation to market.

"Farming", the tillage or use of the soil to raise food for man or beast, the raising of tobacco, or the propagation and growing of trees, shrubs, vines and plants for transplanting and sale.

https://malegislature.gov/Laws/GeneralLaws/PartlfritleXIV/Chapter90/Section1 1/1

1/20/2017

Section 1

Part I ADMINISTRATION OF THE GOVERNMENT

Title IX TAXATION

Chapter 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND

Section 1 LAND IN AGRICULTURAL USE DEFINED

Section 1. Land shall be deemed to be in agricultural use when primarily and directly used in raising animals,

including, but not limited to, dairy cattle, beef cattle, poultry, sheep, swine, horses, ponies, mules, goats, bees

and fur-bearing animals, for the purpose of selling such animals or a product derived from such animals in the

regular course of business; or when primarily and directly used in a related manner which is incidental thereto

and represents a customary and necessary use in raising such animals and preparing them or the products

derived therefrom for market.

https://malegislature.gov/Laws/GeneralLaws/Partl/Title1X/Chapter61A/Section1 1/1

1/20/2017 Section 2

Part I ADMINISTRATION OF THE GOVERNMENT

Title IX TAXATION

Chapter 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND

Section 2 LAND IN HORTICULTURAL USE DEFINED

Section 2. Land shall be considered to be in horticultural use when primarily and directly used in raising fruits,

vegetables, berries, nuts and other foods for human consumption, feed for animals, tobacco, flower, sod, trees,

nursery or greenhouse products, and ornamental plants and shrubs for the purpose of selling these products in

the regular course of business; or when primarily and directly used in raising forest products under a certified

forest management plan, approved by and subject to procedures established by the state forester, designed to

improve the quantity and quality of a continuous crop for the purpose of selling these products in the regular

course of business; or when primarily and directly used in a related manner which is incidental to those uses

and represents a customary and necessary use in raising these products and preparing them for market.

https://m al egisl ature.gov/Laws/GeneralLaws/Partl/Titl elX/Chapter61A/Secti on2 1/1

1/20/2017 Section 3

Part I ADMINISTRATION OF THE GOVERNMENT

Title IX TAXATION

Chapter 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND

Section 3 LAND OF FIVE-ACRE MINIMUM AREA ACTIVELY DEVOTED TO AGRICULTURAL OR HORTICULTURAL USES DEFINED; GROSS SALES AND PROGRAM PAYMENT STANDARD

Section 3. Land not less than five acres in area shall be deemed to be actively devoted to agricultural or

horticultural uses when the gross sales of agricultural, horticultural or agricultural and horticultural products

resulting from such uses together with the amount, if any, payable under a soil conservation or pollution

abatement program of the federal government or the commonwealth total not less than five hundred dollars per

year or when the use of such land is clearly proven to be for the purpose of achieving an annual total of not less

than five hundred dollars from such gross sales and program payments within the normal product development

period as determined by the farmland valuation advisory commission established pursuant to section eleven of

this chapter. In cases where the land is more than five acres in area, the gross sales and program payment

standard above set forth shall be increased at the rate of five dollars per acre except in the case of woodland or

wetland for which such increase shall be at the rate of fifty cents per acre.

https://malegislature.gov/Laws/GeneralLaws/PartifTitleIX/Chapter61A/Section3 1/1

1/20/2017 Section 4

Part I ADMINISTRATION OF THE GOVERNMENT

Title IX TAXATION

Chapter 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND

Section 4 VALUATION OF LAND IN AGRICULTURAL, ETC. USE; CONTIGUOUS LAND; TAX RATE

Section 4. For general property tax purposes, the value of land, not less than five acres in area, which is actively

devoted to agricultural, horticultural or agricultural and horticultural uses during the tax year in issue and has

been so devoted for at least the two immediately preceding tax years, shall, upon application of the owner of

such land and approval thereof, be that value which such land has for agricultural or horticultural purposes. For

the said tax purposes, land so devoted shall be deemed to include such contiguous land under the same

ownership as is not committed to residential, industrial or commercial use and which is covered by application

submitted pursuant to section six. Land shall be deemed contiguous if it is separated from other land under the

same ownership only by a public or private way or waterway.

Land under the same ownership shall be deemed contiguous if it is connected to other land under the same

ownership by an easement for water supply. All such land which is contiguous or is deemed contiguous for

purposes of this chapter shall not exceed in acreage one hundred per cent of the acreage which is actively

devoted to agricultural, horticultural or agricultural and horticultural uses.

The rate of tax applicable to such agricultural or horticultural land shall be the rate determined to be applicable

to class three, commercial property under chapter fifty-nine.

https://malegislature.gov/Laws/GeneralLaws/PartlfTitlelX/Chapter61A/Section4 1/1

1/20/2017

Section 5

Part I ADMINISTRATION OF THE GOVERNMENT

Title IX TAXATION

Chapter 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND

Section 5 CONTIGUOUS LAND UNDER ONE OWNERSHIP WITHIN MORE THAN ONE CITY OR TOWN

Section 5. Where contiguous land in agricultural, horticultural or agricultural and horticultural uses under one

ownership is located in more than one city or town, compliance with the five-acre minimum area requirements

of section four shall be determined on the basis of the entire area of such land and not on the basis of the land

area which falls within the bounds of any particular city or town.

https://malegislature.gov/Laws/GeneralLaws/Partlfritle1X/Chapter61A/Section5 1/1

1/20/2017

Section 6

Part I ADMINISTRATION OF THE GOVERNMENT

Title IX TAXATION

Chapter 61A ASSESSMENT AND TAXATION OF AGRICULTURAL AND HORTICULTURAL LAND

Section 6

ANNUAL DETERMINATION OF ELIGIBILITY FOR VALUATION; APPLICATION; FORM;

CERTIFICATION

Section 6. Eligibility of land for valuation, assessment and taxation pursuant to section four shall be determined

separately for each tax year. Application therefor shall be submitted to the board of assessors of each city or

town in which such land is situated not later than October first of the year preceding each tax year for which

such valuation, assessment and taxation are being sought and may not thereafter be withdrawn. Application

shall be made on a form prescribed by the commissioner of revenue and provided for the use of claimants by

said board of assessors. Such form shall provide for the reporting of information pertinent to the provisions of

this chapter and of Article XCIX of the Articles of Amendment to the Constitution of the Commonwealth and

for certification by the applicant that he will immediately notify the board of assessors in writing of any

subsequently developing circumstance within his control or knowledge which may cause a change in use of the

land covered by such form prior to October first next following. Any application submitted under this section

and covering leased land shall be accompanied by a written statement signed by any lessee of his intent to use

such land for the purposes set forth in said application. A certification by a landowner that the information set

forth in his application is true may be prescribed by said commissioner to be in lieu of a sworn statement to that

effect. An application so certified shall be considered as if made under oath and subject to the same penalties as

provided by law for perjury.

https://m al egi slature.gov/Laws/GeneralLaws/Partlfri tl elX/Chapter61A/Section6 1/1