medical marijuana zoning_lehrer

Zoning for Registered Marijuana Dispensaries in Massachusetts

A project of the

INSTITUTE FOR POLICY ANALYSIS AND REGIONAL ENGAGEMENT

(IPARE) BRIDGEWATER STATE UNIVERSITY

DIVISION OF EXTERNAL AFFAIRS

Jody H. Lehrer, JD, MPA

October 2014

Updated April 28, 2015

ZONING FOR REGISTERED MARIJUANA DISPENSARIES IN MASSACHUSETTS


A project of the

INSTITUTE FOR POLICY ANALYSIS AND REGIONAL ENGAGEMENT

(IPARE)

BRIDGEWATER STATE UNIVERSITY DIVISION OF EXTERNAL AFFAIRS

October 2014

Updated April 28, 2015

Note to Reader (April 28, 2015)

This research presents findings from an 18-month, three phase research project conducted from March 1, 2013 to August 12, 2014 on zoning for RMDs in Massachusetts under the (at the time) new law, “An Act for the Humanitarian Medical Use of Marijuana. 1 ” Findings pertain to: municipalities (towns and cities) that adopted moratoria on RMDs or have zoned to allow for RMDs; zoning districts where RMDs are allowed (e.g., industrial, commercial); buffer zones relative to existing land uses (e.g., schools, churches, public housing); and more. The primary sources of data for the research included review of town by-laws and city ordinances and review of decisions by the Municipal Law Unit (MLU) of the Massachusetts Attorney General relating to zoning by-laws concerning RMDs. The Massachusetts AG must review town general and zoning by-laws to determine consistency with the constitution and the laws of the Commonwealth. During the study, the researcher reviewed zoning in 182 municipalities (52% of all municipalities) regarding RMDs and studied 236 AG decisions on zoning by-laws relating to RMDs. Sixty-eight percent of all municipalities had adopted zoning allowing for RMDs, with forty-five percent allowing for RMDs in industrial zones, followed by 20% in business, office, and research parks. A quick review of the Municipal Law Unit section of the AG’s website reveals that since August 12, 2014, there has been substantial zoning activity relative to RMDs: the AG has issued 46 decisions as of August 13, 2015. This activity does not even include what may be happening in cities. In fact, there is no centralized locale for obtaining the larger view of what the cities are doing regarding RMD-related zoning: the MLU decisions pertain only to towns. It is obvious that more research is needed to update prior findings, to explore ancillary issues such as sluggish implementation of the new law, and to examine new efforts to legalize marijuana. Jody H. Lehrer

1 Chapter 369 of the Acts of 2012.

Table of Contents Executive Summary ................................................................................................................................................... 1

Three Phases of Research on Zoning for RMDs ......................................................................................... 4

The Massachusetts Attorney General and By-Law Reviews ................................................................. 5

Research Phases ........................................................................................................................................................... 7 Phase I - March 1, 2013 – August 31, 2013 ................................................................................................ 7

Overview ................................................................................................................................................................ 7

Methodology ......................................................................................................................................................... 8

Findings .................................................................................................................................................................. 8

Phase II – September 1, 2013 – April 30, 2014 .................................................................................... 10

Overview ............................................................................................................................................................. 10

Methodology ...................................................................................................................................................... 11

Findings ............................................................................................................................................................... 11

Phase III – May 1, 2014 to August 12, 2014 ........................................................................................... 16

Overview ............................................................................................................................................................. 16

Methodology ...................................................................................................................................................... 16

Findings ............................................................................................................................................................... 16

Project Conclusion ................................................................................................................................................... 21

Research Overview ............................................................................................................................................ 21

Findings Overview ............................................................................................................................................... 21

References .................................................................................................................................................................. 24

Zoning for Medical Marijuana Dispensaries in Massachusetts


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EXECUTIVE SUMMARY

This paper presents the findings from 18 months of research on municipal zoning in Massachusetts under the “Act for the Humanitarian Medical Use of Marijuana (“Act”),2 created after more than 63% of voters passed Ballot Question 3. The research examines zoning for “Registered Marijuana Dispensaries” (RMDs3), as defined in the Act. According to regulations promulgated by the Massachusetts Department of Public Health (DPH) a “Medical Marijuana Treatment Center,” called a Registered Marijuana Dispensary (“RMD”), is defined, in pertinent part, as:

A not-for-profit entity registered under 105 CMR 725.100 … that acquires, cultivates, possesses, processes (including development of related products such as edible MIPs, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to registered qualifying patients or their personal caregivers.

The Act enables qualified patients with a debilitating medical condition to obtain and possess marijuana for medicinal use. The Act eliminates civil and criminal penalties for the medical use of marijuana by qualifying patients. The Act also enables a qualifying patient to obtain a “hardship cultivation registration” from the Department of Public Health (DPH) for a “verified financial hardship, a physical inability to access reasonable transportation, or the lack of a treatment center within a reasonable distance of the patient’s residence.” To fully understand what the law requires, one must refer to the Act itself, and to the applicable regulations promulgated by the DPH4. The researcher examines many variables concerning zoning for RMDs but had to narrow the scope of the study so as to have sufficient time to analyze data and to write this paper. Table A shows the expanded list of variables studies, but the actual research scope follows:

x Municipalities with moratoria on RMDs versus those that allow for RMDs; x Types of zoning districts where RMDs may operate;

2 Chapter 369 of the Acts of 2012. 3 105 CMR 725.004. 4 DPH regulations found at 105 CMR 725 became effective on May 24, 2013.



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x Buffer zones set for RMDs relative to existing land uses (e.g., schools, daycare facilities, playgrounds, parks, libraries);

x Distances of buffer zones; x Whether a special permit is required or RMDs are allowed to operate by right.

TABLE A – Expanded List of Topics on Which Data was Collected

Moratoria Established

Municipalities with moratoria

Moratoria approved by AG (towns only)

Moratoria disapproved by AG (towns only)

Moratoria approved in part and disapproved in part by AG

Moratoria expiration date

Moratoria that expired as of April 30, 2014- end of Phase II research

By-Laws Allowing for RMDs by Special Permit but that Establish Moratoria on Special Permits

By-Laws Allowing RMDs but that Establish Temporary Moratoria on RMDs

By-Laws Adopting Requirements for RMDs and Off Site Medical Marijuana Dispensaries (OMMDs)

By-Laws with Provisions Garnering AG Warnings or Caveats

Excludes Marijuana from the Listed Use as Farm

Exclusion of Accessory Use (acquisition, cultivation, possession, processing, etc. of marijuana, products containing marijuana etc. may not be considered accessory to use)

Temporary moratoria applies to cultivation, distribution, possession, use for medical purposes etc.

Identifying zoning districts where RMDs will be allowed may undermine purpose and need for temporary moratoria

Length of Moratoria (e.g., not to go beyond 12/31/14 - may fail reasonable basis standard- Sturges)

Nothing contained in this Article shall be construed to permit …use of land or structures for activity involving marijuana, other than as a MMTC/ RMD

Moratoria adopted to allow town to consider regulations and related uses "to the extent it is determined to allow them"

Moratorium applies to use of land or structures for purposes of cultivation, distribution, possession and use of marijuana for medical purposes

The moratorium is necessary to give the town time to consider whether to allow RMDs

By-Laws Adopting Moratoria but Disapproved by AG

Less than 3/4 vote to approve



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Length of Moratorium (e.g., Canton had a two year moratorium)

Adopted as General Rather Than Zoning Bylaw

No Public Hearing Held

Moratorium effective until date certain OR such future time as ATM enacts superseding zoning by-laws… this is unlawful because it is of potentially unlimited duration

By-Laws Allowing for RMDs & AG Review Status

Approved by AG (towns only)

Disapproved by AG (towns only)

Approved in part/Disapproved in part by AG (towns only)

AG Reasons for Disapproval of By-law Provisions (this excludes moratoria bylaws)

Restricts quantity of marijuana per patient per day

Allows Outdoor Temporary RMDs

Special Permit Required for Hardship Cultivation

Limits Hardship Cultivation to Adult Entertainment District

Prohibits Off Site Delivery of Medical Marijuana by MMTCs

How RMDs are Allowed

By Special Permit

By Right

Zoning Districts Where RMDs are Allowed

Commercial

Retail

Overlay (Other than Medical Marijuana Overlay District)

Medical Marijuana Overlay

Medical Professional or Health Service

Industrial

Business

Office or Research

Adult Entertainment

Residential



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Three Phases of Research on Zoning for RMDs The research was conducted in three chronological phases over an 18 month period resulting in two papers: the first addressed findings from Phases I and II; the second (this one) pertains to Phase III and overall research findings. Research began on March 1, 2013 and ended on August 12, 2014, when data collection terminated. This paper describes each phase, including an overview, the research methodology used, and findings. One should keep in mind that when determining the numbers and percentages of municipalities that had adopted temporary moratoria on RMDs or zoning allowing for RMDs, the researcher has figured in findings from previous phases. The researcher constantly re-reviewed the zoning status of municipalities reviewed in the prior research phase. This was because many municipalities that had

Other

Existing Land Uses from which Buffer Zones are Established for RMDs

Schools

Day care or childcare

Playgrounds

Parks

Libraries

Places that sell alcohol

Facilities or places where children congregate

Swimming pools, youth centers, arcades

Adult entertainment zones

Halfway house, sober house, drug or alcohol rehab facility, AA or NA meetings

Places of worship

Other RMDs

Residential areas

Distance of Buffer Zones

Buffer zone distances in various zoning by-laws or ordinances (100 to 3000 feet)



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originally adopted moratoria later zoned to allow for RMDs (e.g., Acushnet, Athol, Billerica, Danvers). Other municipalities that had neither adopted moratoria nor zoned to allow for previously, zoned to allow for RMDs in Phase III (e.g., Andover, Avon, Georgetown, Mansfield). Therefore, Phase III data is cumulative. For this reason, when viewing Table B, below, showing the research phase, phase duration, and the number and percentage of municipalities studied, one cannot meaningfully add the number of municipalities studied and arrive at the total studied. In all, the researcher examined 182 municipalities during the research project.

Table B – Findings Overview

Phase Duration Municipalities Studied

% of All Municipalities

Phase I March 1, 2013 – August 31, 2013 151 43%

Phase II September 1, 2013 – April 30, 2014 164 47%

Phase III May 1, 2014 to August 12, 2014 182 52%

Data collection in Phase III ended on August 12, 2014 enabling the researcher to analyze the massive amount of data collected in time to deliver the paper to BSU by mid-September. Data analysis involved assessing the bylaws and ordinance from 182 municipalities, as well as the decisions of the Attorney General regarding town bylaws. See the section below on the Attorney General and zoning bylaws.

The Massachusetts Attorney General and By-Law Reviews A primary source of data relied upon in during this research was the review of decisions of the Municipal Law Unit of the Attorney General (AG) of the Commonwealth of Massachusetts relating medical marijuana zoning by-laws. The AG’s website states that whenever a town adopts or amends its general or zoning by-laws, the Town Clerk in that town must submit the by-law to the AG for review and approval within 30 days of adjournment of town meeting. The AG then has 90 days in which to decide whether the proposed amendments are consistent with the constitution and laws of the Commonwealth.



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If the AG determines that an inconsistency exists, the inconsistent provisions will be disapproved. The MLU is responsible for conducting the review and issuing a decision in writing that either approves or disapproves the bylaws or amendments. The AG’s ability to conduct a review of town by-laws – zoning or general – is constrained:

The AG's limited standard of review requires her to approve or disapprove by-laws based solely on their consistency with state and federal law, not on any policy views she may have on the subject matter or wisdom of the by-law. Amherst v. Attorney General, 398 Mass. 793, 795-96, 798-99 (1986).

The AG website allows one to search for town zoning by-laws by either topic or town. For example, one may search for zoning (or general) by-laws reviewed by the AG relative to Agawam, Swampscott, or Pembroke. Also, one may search for all by-laws adopted by any town pertaining to a given topic (e.g., sex offenders; solar; CORI fingerprints; vacant and foreclosing buildings; and elections). Examination of AG decisions on zoning by-laws relative to RMDs is important because the decisions represent a determination by the chief lawyer and law enforcement officer of the Commonwealth5 regarding consistency of general and zoning by-laws with the constitution and laws of the Commonwealth. Also, of the 351 municipal governments in Massachusetts, two hundred and ninety six (296) are towns that are required to obtain an AG review relative to their by-laws. This means that eighty-four percent (84%) of all municipalities have their by-laws reviewed. Of the 351 municipalities, 39 are cities, another 14 are towns with city forms of government that retain the title “town,” and two others use the title “city” but have neither wards nor precincts. None of these 55 municipalities are subject to AG review regarding their bylaws or ordinances. Nonetheless, the research entailed review of as many of the by-laws and ordinances of these 55 municipalities as possible in order to collect information relative to a greater number of municipalities in Massachusetts.

5 http://www.mass.gov/ago/about-the-attorney-generals-office/



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In all, in addition to reviewing AG decisions relative to zoning by-laws on medical marijuana, and the by-laws themselves, the researcher reviewed by-laws and ordinances as time permitted in as many other municipalities as possible. The researcher did not review the by-laws of any towns for which the AG did not issue a decision. For example, if at an Annual Town Meeting, voters approved a by-law amendment on medical marijuana but the measure was not yet submitted to the AG or the measure was still in the 90-day review “pipe line,” it was not included in this paper. In all, the research involved reviewing 236 decisions pertaining to 182 towns. The reason that the number of AG decisions is greater than the number of towns is due to the fact that some towns adopted more than one zoning bylaw relating to medical marijuana. For example: many towns first adopted moratoria and later zoned for RMDs: both of these zoning by-law amendments would have to be reviewed by the AG.

RESEARCH PHASES

Phase I - March 1, 2013 – August 31, 2013

Overview Phase I began March 1, 2013, four months after enactment of the new law (November 2012), and two months before DPH regulations became effective (May 24, 2013), and concluded on August 31, 2013. The researcher conducted this phase of the research while a graduate student in Bridgewater State University’s Master of Public Administration Program. Research funding was provided by university’s Institute for Policy Analysis and Regional Engagemen (IPARE). At the time that Phase I began, four months after enactment of the new law and prior to promulgating of DPH regulations, the municipalities in the Commonwealth had very little to look at in terms of what their neighbors were doing and no systematic compiled data on early actions of municipals existed. This research constituted the first effort to capture what municipalities were doing regarding zoning for RMDs. Both the researcher and the university realized the value of getting an early start on examining zoning efforts for RMDs, an entirely new land use in the Commonwealth. The City of Brockton was selected as a partner in the research given BSU’s long-standing professional relationship with the city.



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Methodology The primary sources of data relied upon during Phase I included: review of the Act and implementing DPH regulations; study of AG decisions relating to zoning by-laws on medical marijuana; review of bylaws themselves; and phone and/or email contact with planning officials as needed to obtain clarification regarding zoning requirements and/or zoning adoption status as necessary. During Phase I the researcher produced six deliverables provided to Office of the Mayor in Brockton. See Table C below.

Table C – Deliverables - Phase I

Handout 1 Timeline for Ballot Question 3 & DPH Regulations

Handout 2 Overview of Ballot Question 3 (Section by Section)

Handout 3 Overview of DPH Implementing Regulations (Section by Section)

Handout 4 List of Other States with Similar Laws

Handout 5 Matrix of City/Town Bylaws in Massachusetts

Handout 6 California City/Town Bylaws (Dina’s product)

PowerPoint Summary of all handouts with Brockton specific information

Findings Findings from Phase I were based on data from 151 (43%) of all municipalities. Data were gathered from 131 towns and 20 cities. A substantial majority (77%) had adopted moratoria. Only 11% permitted RMDs. See Table D. Planning officials in five percent (5%) of municipalities indicated they would wait for other municipalities to act before they did. In the AG review of a Wakefield zoning by-law amendment that would permanently ban RMDs, the AG declared that the town’s action would “frustrate the purpose” of the Act6 and disapproved the by-law amendment. In another decision pertaining to the Town of Burlington, issued on the same day as the Wakefield decision, the AG stated that a town could impose a temporary moratoria as this was within a Town’s zoning power “when the stated intent is to manage a new use, such as medical marijuana treatment centers” and when there exists a stated need for “study, reflection and decision

6 Case 6601. Later, at its Annual Town Meeting on May 6, 2013, the town adopted temporary moratoria until June 30, 2014; this was approved by the AG (Case 6680).



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on a subject matter of [some] complexity...7” Municipalities could enact a temporary moratorium in

order to study zoning issues related to development of dispensaries8.

Table D - Findings Phase I Data on 20 Cities Regarding Zoning for RMDs

# %

Adopted moratoria 15 75%

Zoned to permit RMDs 3 15%

Bans RMDs completely 1 5%

Moratoria rejected by voters at Annual Town Meeting NA

No moratoria or zoning to permit RMDs likely 0 0%

Considering zoning ordinance to permit RMDs 0 0%

Waiting for other local governments to act 1 5%

Data on 131 Towns Regarding Zoning for RMDs

# %




Moratoria rejected by voters at Annual Town Meeting 3 2%

No moratoria or zoning bylaws to permit RMDs likely 2 2%

Considering zoning to permit RMDs 2 2%


Data on Zoning for RMDS from 151 Towns & Cities (43% of municipalities)

# %




Moratoria rejected by voters at Annual Town Meeting 3 2%

No moratoria or zoning bylaws to permit RMDs likely 2 1%

Considering zoning to permit RMDs 2 2%


7 Citing W.R. Grace v. Cambridge City Council, 56 Mass. App. Ct. 559, 569 (2002) 8 Case 6619, Town of Burlington.



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Phase II – September 1, 2013 – April 30, 2014

Overview This research phase (September 1, 2013 to April 30, 2014) began where Phase I left off in order to ensure continuity and to include among the data collected the AG decisions issued since the end of Phase I. As has been stated, the AG must review town zoning and general by-laws but has no authority to review city ordinances or the by-laws of towns with city forms of government (e.g., Agawam, Barnstable), or ordinances adopted by municipalities with the title “city” but with no wards or precincts (i.e., the City of Easthampton). The researcher, however, continued to track zoning in these other municipalities in order to capture the actions of as many municipalities as possible. The final AG decision issued in Phase II on medical marijuana was Case 7097 (South Yarmouth) on April 29, 2014. This was the last decision reviewed in Phase II. All AG decisions on medical marijuana issued after this date (through August 12) were assessed in Phase III . Findings from Phase II address:

(1) Municipalities that impose temporary moratoria on RMDs versus those that zone to allow RMDs;9

(2) Zoning districts where RMDs are allowed to operate (e.g., industrial, commercial, business); (3) Buffer zones – including types of existing land uses for which buffer zones are set (e.g.,

schools, playgrounds, churches) and buffer zone distances; and (4) Municipalities requiring special permits for RMDs versus allowing operation by right.

9 This researches uses the term “allows” or “allowing,” rather than “permits” or “permitting” since the word “permit,” as a noun, means “a written warrant or license granted by one having authority.” Many municipalities require that RMDs obtain a “special permit” from a permit-granting authority (e.g., a planning board) in order to operate. Therefore, the researcher utilizes the word “allow” to distinguish from the issuance of a permit for an RMD.



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Methodology Principal sources of data in Phase II included AG decisions regarding zoning by-laws in towns, the zoning by-laws themselves, and reviews of many city ordinances and by-laws not subject to review by the AG, as well as email or phone contact with selected municipal officials where necessary for clarification relevant to the research data.

Findings Findings from Phase II were released to the Massachusetts planning community through the MassPlanners list serve (of the Massachusetts Chapter of the American Planners Association). The researcher intended to facilitate to the greatest degree possible the decision-making process of planners relative to zoning for RMDs. Phase II findings are presented both in narrative format and in charts, bar graphs and the like.

(1) Moratoria versus zoning to allow RMDs Findings show that of 164 municipalities examined (47% of all municipalities), 70% had adopted moratoria and 30% adopted by-laws or ordinances allowing for RMDs. Sixty one percent (61%) of municipalities that had moratoria in place had designated June 30, 2014 as the expiration date. Another 23% of municipalities selected a date after June 30, 2014 for expiration of moratoria. Table E shows findings relating to moratoria separately from those pertaining to zoning allowing for RMDs.

TABLE E - Phase II Research Overview

All municipalities in Massachusetts 351

Number of municipalities examined relative to zoning & RMDs 164

Municipalities examined as % of all municipalities 47%

Municipalities with Moratoria on RMDs

Total # of municipalities examined that adopted moratoria on RMDs 115

Municipalities that adopted moratoria as % of all municipalities examined (115/164) 70%

Number of towns with moratoria (not including towns with city forms of government) 105

Number of cities with moratoria 6

Number of towns that have a city form of government and have established moratoria 4

Municipalities with moratoria expiring on 06/30/14 as % of all municipalities with moratoria 61%

Municipalities with moratoria expiring after 06/30/14 as % of all municipalities with moratoria 23% Number of towns with moratoria where AG issued warning (not disapproval) concerning one or more by-law provision - as % of all municipalities with moratoria 18%



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Towns with moratoria receiving AG warning if by-law states is needed to give town “time to consider WHETHER TO ALLOW RMDs"- as % of all towns with an AG warning 48%

Municipalities Allowing for RMDs

Total number of municipalities allowing for RMDs 49

Number of municipalities allowing for RMDs as % of all municipalities studied 30%

Number of towns allowing for RMDs (excluding towns with city forms of government) 31

Number of cities with by-laws allowing for RMDs 11

Number of towns with city forms of government allowing for RMDs 6

Communities with "city" title but no wards or precincts 1

(2) Zoning Districts

Findings revealed that municipalities allowed for RMDs to be located in several types of zoning districts including: industrial; business, office and research park; commercial; medical marijuana overlay districts (that in some municipalities span more than one type of zoning district); and other districts (e.g., adult entertainment). Table F, below, shows that 22% of the 49 municipalities allowing for RMDs permit them in more than one type of zoning district (e.g., industrial and commercial). In fact, in Greenfield and Amherst RMDs are allowed in three different zoning districts. Because some municipalities allow RMDs in more than one type of zoning district, the sum of the percentages of municipalities allowing RMDs in each type of zoning districts, shown in Table F (e.g., percentage of municipalities allowing RMDs in industrial zones) exceeds 100%. Each row must be read independently. Table F shows that 65% of the municipalities allow RMDs in industrial zones; followed by 27% allowing for RMDs in business, office, or research parks.

TABLE F – Zoning for RMDs by Type of Zoning Districts

Allowing RMDs in more than one TYPE of zoning district- as % of municipalities permitting RMDs 22%

Allowing RMDs in industrial districts as % of municipalities permitting RMDs 65%

Allowing RMDs in business, office or research parks as % of municipalities permitting RMDs 27%

Allowing RMDs in commercial districts as % of municipalities allowing for RMDs 14%

Allowing RMDs in medical marijuana overlay district as % of municipalities allowing for RMDs 8% Allowing RMDs in other zoning districts (retail, adult entertainment, general use) as % of all municipalities allowing for RMDs 6%

Allowing RMDs in medical professional or health services district as % of municipalities allowing for RMDs 4%

Allowing RMDs in residential/business districts as % of municipalities allowing for RMDs 2%



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(3) Buffer Zones Chart 1, below, shows that municipalities set buffer zones for RMDs from many types of existing land uses (e.g., schools, libraries, places that sell alcohol, churches). Chart 1 shows that the all municipalities have buffer zones relative for RMDs relative to schools, daycare, and places where children congregate. This is due to the fact that DPH regulations state that absent a local requirement on the subject, an RMD may not be sited within a radius of 500 feet from a “school, daycare center, or any facility in which children commonly congregate.” Therefore, this researcher presumed a buffer zone of 500 feet for any municipality that did not adopt a different buffer zone, as the state provision applies “if no local requirement exists.” According to a December 13, 2013 DPH guidance memorandum on DPH regulations for municipalities, “facilities in which children commonly congregate” include:

Dance schools, gymnastic schools, etc. if children commonly congregate there in a structured, scheduled manner. It includes facilities where services or programs targeting children or youth take place. It includes a private home housing a family day care center, but not a private home where children happen to live. It includes a city or town park if the park includes play structures intended for children to use. It does not include other facilities, such as ice cream shops, where children may happen to congregate, but not in a structured, scheduled manner.”

The distances of buffer zones vary among municipalities relative to schools, daycare centers, and facilities where children congregate For example, Concord and Chelmsford have a 3,000-foot set- back for schools, while Provincetown sets a 100-foot buffer zone. As to buffer zones for other existing land uses, 31% of municipalities have adopted buffer zones for RMDs from playgrounds, parks, and recreational facilities (Chart 1). Twenty percent (20%) of municipalities require that a buffer zone for RMDs relative to buildings with residential use or to residential districts, to other RMDs or buildings containing them, and to libraries.



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Chart 2, below, identifies the mean average buffer zone for RMDs relative to different land uses. The researcher determined the mean average buffer zones by adding all buffer zone distances for a given land use and dividing the total by the number of municipalities with such a buffer zone. For example, if three municipalities adopt a buffer for churches of 100, 300, and 500 feet respectively, totaling 900 feet, then one would divide 900 by 3 (municipalities), resulting in a mean average set back of 300 feet. The distances of buffer zones vary depending on the land use, and vary from municipality to municipality. The mean average set back for schools is 597 feet, and for playgrounds is 668 feet. Municipalities are not always consistent in describing the land uses for that they want to buffer from RMDs. For example, some municipalities specify that the buffer zones for RMDs from playgrounds applies to “public playgrounds” (e.g., Ashland, Mashpee, Spencer, Lynn), while others simply used the term “playground” (e.g., Millis, Norton, Oak Bluffs). The mean set back for playgrounds, therefore, applies to any mention of playgrounds for the purposes of this research. The largest buffer zone for RMDs relative to a particular land use is for adult entertainment zones. Only one municipality established a set back relative to adult entertainment zones in Phase II (Attleboro). It might be noted that one municipality relegates RMDs to the adult entertainment zone (Westborough).

Schools, daycare, places where children…Playgrounds, parks, and recreational facilities

LibrariesOther RMDs or buildings containing them

Buildings with residential use or residential…Adult entertainment areas, halfway houses,…

Swimming pools, youth centers, arcadesPlaces of worship

Places that sell alcohol

0% 50% 100% 150%

Chart 1: Percentage of municipalities adopting buffer zones from specific land uses



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(4) Special Permits v. By Right RMD Operation Municipalities allowing for RMDs do so either by requiring a “special permit” issued by a special permit granting authority (e.g., a Planning Board), or “by right” (no special permit required), and sometimes with site plan approval. Eighty two percent (82%) of municipalities require special permits, compared to 18% that allow RMDs by right. One municipality, Worcester, requires a special permit if the dispensary facilities do not also cultivate medical marijuana but allows RMDs by right if the dispensaries also cultivate. Another municipality, Lexington, distinguishes between a “medical marijuana distribution center” and a “medical marijuana treatment center” (called RMDs in DPH regulations). The distribution center distributes, dispenses, and administers medical marijuana and is allowed in central business and retail shopping districts by special permit. The MMTC engages in the activities of the distribution center but also may “…acquire, cultivate, possess, process, transfer, transport, sell…” medical marijuana. The MMTC is allowed by right in the central manufacturing district.

0 200 400 600 800 1000

Schools

Playgrounds combined (public or not)

Parks and recreational areas combined (public…

Libraries (public or not)

Swimming pool, youth center, arcades

Halfway houses, sober houses, drug & alcohol…

Adult entertainment zones

Places of worship

Other RMDs or buildings containing them

597

668

629

844

758

833

1000

550

644

Chart 2: Mean Average Buffer Zone for Land Uses in Feet - Phase II



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Phase III – May 1, 2014 to August 12, 2014

Overview Phase III research began May 1, 2014, and data collection ended August 12, 2014, followed by data analysis and the writing of this paper, delivered to BSU in late September. This end date for data collection allowed the researcher to track zoning efforts after June 30, 2014 - when 61% of moratoria would expire. During this phase, the researcher was also able to continue examining zoning in municipalities that had not adopted moratoria. Findings in Phase III concern:

(1) Zoning action relative to research phase (e.g., municipalities that adopted moratoria before Phase III but zoned to allow RMDs in Phase III) (see Table H);

(2) Whether municipalities adopted moratoria or allow for RMDs; (3) Zoning districts in which RMDs are allowed; (4) Buffer zones including types of existing land uses for which buffer zones are set for RMDs

and buffer zone distances; and (5) Municipalities requiring special permits for RMDs versus allowing operation by right.

Methodology As in the first two phases of the research, Phase III involved the review of AG decisions regarding zoning by-laws relating to medical marijuana that were issued between May 1, 2014 and August 12, 2014. The researcher reviewed 74 new AG decisions during this phase . The researcher studied most of the by-laws themselves, as well as the by-laws and ordinances of many municipalities not subject to AG review. Finally, the researcher corresponded with municipal officials to obtain clarification regarding zoning provisions if necessary. Overall, the researcher examined zoning in 182 municipalities.

Findings Research during Phase III entailed reviewing zoning by-laws or ordinances adopted or amended in 182 municipalities relative to medical marijuana. Sixty-eight percent (68%) of municipalities had amended their by-laws or ordinances to allow for RMDs, contrasted with 11% in Phase I, and 30% in Phase II. In Phase III, 32% of the municipalities had moratoria in place, contrasted with 77% in



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Phase I and 70% in Phase II. Virtually all of the municipalities that had moratoria in place in Phase III had adopted them in Phase I or II.

TABLE G – Phase III - Moratoria Versus Zoning to Allow RMDs Municipalities that had adopted zoning allowing for RMDs as of

Phase III Municipalities that had moratoria on

RMDs in place in Phase III All municipalities

studied in Phase III

123 59 182

68% 32% 100%

(1) Zoning action relative to research phase

Table H below shows the numbers and percentages of municipalities based on the type and the research phase. Table H shows that 31% of municipalities had adopted moratoria prior to Phase III but adopted zoning allowing for RMDs in Phase III. Another six percent (6%) of municipalities both established moratoria and zoned to allow for RMDs prior to Phase III (e.g., Ashland, Brookline, and Dighton).

TABLE H – Zoning Actions Taken By Municipalities & Respective Phases

Action # of municipalities

% of studied municipalities

No action before Phase III; zoned for RMDs in Phase III 12 7%

Moratoria adopted before Phase III; zoned for RMDs in Phase III 57 31%

Moratoria and zoning for RMDs adopted before Phase III 11 6%

Moratoria adopted prior to Phase III; No further action 58 32%

No moratoria adopted; zoned for RMDs before Phase III 43 24%

Moratoria adopted in Phase III 1 1%

Total Municipalities Studied in Phase III 182 100%

(2) Moratoria versus zoning to allow RMDs Phase III findings showed that 68% of municipalities had zoned for RMDs regardless of the phase in which zoning was adopted, compared to 32% that had adopted moratoria. Table H, above, shows that 31% of municipalities that zoned to allow for RMDs had moratoria in place prior to this phase. Another 7% had taken no action prior to Phase III but zoned to allow for RMDs in Phase III.



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(3) Zoning Districts Table I, below, shows the findings relative to the types of zoning districts in which RMDs can operate and the percentage of municipalities allowing for RMDs in particular types of the studied municipalities.

TABLE I - Phase III – Zoning for RMDs by Type of Zoning District

Number of municipalities allowing RMDs in more than one type of zoning district 25

Allowing RMDs in more than one TYPE of zoning district- as % of municipalities allowing for RMDs 20%

Allowing RMDs in industrial districts as % of all municipalities allowing for RMDs 45%

Allowing RMDs in business, office or research park districts as % of all municipalities allowing for RMDs 23%

Allowing RMDs in commercial districts as % of all municipalities allowing for RMDs 16%

Allowing RMDs in medical marijuana overlay district as % of all municipalities allowing for RMDs 20%

Allowing RMDs in other zoning districts (adult entertainment, other) as % of all municipalities allowing for RMDs 7%

Allowing RMDs in medical professional or health services district as % of all municipalities allowing for RMDs 2%

Allowing RMDs in residential as % of all municipalities allowing for RMDs 1%

Allowing RMDs in retail districts as % of all municipalities allowing for RMDs 1%

Table I, above, shows that, as was the case in Phase II, the majority of municipalities that had zoned to allow for RMDs had done so in industrial zoning districts (even if they may also allow RMDs in other districts). However, Phase III findings show that 45% of municipalities allow RMDs in industrial zones, while Phase II indicates that 65% permit RMDs in industrial zones. Still, overall, a majority of municipalities designate industrial districts as a permissible location for RMDs. Phase III findings indicate that after industrial zones, the next largest percentage of municipalities allow RMDs in business, office, or research parks (23%), compared to the 27% that are shown to allow RMDs in such districts in Phase II.

(4) Buffer Zones

Phase III findings revealed what municipalities were doing regarding buffer zones for RMDs from existing land uses. The types of existing land uses from which municipalities established buffer



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zones for RMDs had not changed from Phase II (e.g., playgrounds, parks, libraries, swimming pools) but there were some changes in buffer zone distances. For example, the mean average set back for RMDs with respect to libraries (whether specified as public by municipalities or unspecified). In Phase II, the mean average set back for RMDs from libraries was 844 feet, while the mean average set back in Phase III relative to libraries was 717. The researcher did have the time to try to examine the rationale for such a change but suggests that changes might be due to the fact that the sample size was larger in Phase III (49 municipalities had adopted zoning in Phase II and 123 had done so in Phase III). Regarding buffer zones from schools, the mean average distance that RMDs must be set back from schools did not change significantly from Phase II to Phase III. In Phase II the mean average set back from schools was 597 feet, while in Phase III it was 606 feet, a slight increase in the buffer zone in Phase II. Likewise, the mean average set back for playgrounds according to Phase II findings was 668 feet, and the mean average set back in Phase III was found to be 662, again, not significantly different.

Some clarification must be provided regarding determining the mean averages for certain land uses, specifically for playgrounds and for schools, daycares, and facilities in which children congregate. As for playgrounds, it should be noted that with respect to playgrounds, some municipalities refer to “public playgrounds” (e.g., Ashland, Mashpee, Spencer, Lynn) while others refer to playgrounds without specifying “public” or “private” (e.g., Leicester, Millis, Norton. Oak Bluffs). The mean average set back discussed here applies to playgrounds collectively, however defined, as no single municipality established a set back under both terms. As for schools, daycare facilities, and facilities in which children commonly congregate, the researcher presumed a 500-foot set back for each municipality that did not adopt a different set back. This was also done in Phase II. The reason for this presumption is that DPH regulations mandate such a set back for these land uses absent a local provision to the contrary. Therefore, for those municipalities that do not adopt a different set back for such land uses (e.g., Hanson, Dover) the researcher added the 500-foot state default set back when calculating mean average set back distances. The researcher presumed that the state default set back existed for 19% of all



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municipalities that zoned to allow for RMDs (81% of the municipalities had specifically identified the set backs within their zoning by-laws or ordinances). As stated previously, while the mean average buffer zones for RMDs from various land uses did not change from phase to phase, they vary significantly from municipality to municipality. For example, Concord and Chelmsford establish a 3,000-foot set back; Provincetown sets a 100-foot buffer zone for schools. For some land uses, like “daycare centers,” determining the mean average set back is difficult due to differing terminology used by municipalities and also the fact that “daycare center,” as used in DPH regulations found at 105 CMR 725.110(A)(14), is not defined. Different municipalities use different terms to address childcare or day care. Some municipalities establish set backs from “licensed daycare” (e.g., Amherst, Athol, East Longmeadow); others set buffer zones from “family daycare,” perhaps in addition to “licensed daycare” (e.g., Burlington), but not always (e.g., Leicester). Nonetheless, DPH regulations require a 500-foot set back from “daycare centers,” however defined. Therefore, the researcher presumed that all municipalities have a set back –either their own or the state’s (in the absence of a locally adopted one).

(5) Special Permits v. By Right RMD Operations Phase III findings showed that 87% of municipalities require an RMD to obtain a special permit (compared to 82% in Phase II) and 13% allowed an RMD to operate by right, (compared to 18% in Phase II). In both phases, it was shown that the vast majority of municipalities (87% and 82%, respectively) require RMDs to obtain a special permit.



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Project Conclusion

Research Overview This 18 month long research project, conducted in three consecutive phases, focused on zoning in municipalities in Massachusetts relative to RMDs. Overall, the research involved examination of zoning in 182 municipalities (52% of all municipalities) and of 236 AG decisions on zoning by-laws regarding medical marijuana. The research also entailed review of the by-laws themselves, and of many by-laws and ordinances from municipalities not subject to AG review (e.g., cities). Overall, with each phase of research a greater number of municipalities moved from having temporary moratoria in place to adopting zoning measures allowing for RMDs. Given the similarities discerned in the types of existing land uses from which RMDs in the many municipalities must be set back, and the similarity in language regarding moratoria, and the influx of questions from planners regarding the findings of this research it was evident that municipalities looked to earlier actors regarding zoning for RMDs in an effort to inform their own actions.

Findings Overview Moratoria versus Zoning to Permit RMDs: Phase I findings showed that municipalities were not prepared or willing to allow for RMDs. Phase I findings showed that 77% of the municipalities had adopted temporary moratoria on RMDs, whereas only 11% had adopted zoning to allow for RMDs. By Phase II, the percentage of municipalities that had adopted zoning measures to allow for RMDs had risen to 30%. Still, in both Phase I and Phase II, the majority of municipalities examined had adopted moratoria on RMDs: 77% and 70%, respectively. The majority of municipalities that had adopted moratoria included in their by-laws or ordinances language stating that the town:

Needs time to study and consider the regulation of Medical Marijuana Treatment Centers and address such novel and complex issues, 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 medical marijuana treatment centers and other uses related to the regulation of medical marijuana.”10

10 Just a few of the towns with by-laws containing this language are Hopkinton, Ipswich, Lakeville, Medway. Pembroke, Stockbridge, and Seekonk.



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By Phase III, the percentage of municipalities with moratoria in place was 32%, while the percentage of municipalities that permitted RMDs was 68%. This percentage of municipalities allowing for RMDs was more than double the percentage shown to have allowed for RMDs in Phase II (30%). Zoning Districts Allowing RMDs: Zoning by-laws and ordinances varied as to the types of zoning districts where RMDs are allowed. Phase II findings showed that 22% of the municipalities permitted RMDs in more than one type of zoning district (e.g., Ashland allows RMDs in highway commercial and general industry; Spencer allows RMDs in commercial and general industrial zones). Phase III findings were similar: 20% of municipalities allowed for RMDs in more than one type of zoning districts. Phase II showed that 65% of municipalities allowed for RMDs in industrial zones, followed by 27% that permitted RMDs in business, office, and research parks. Phase III findings indicated that the percentage of municipalities allowing for RMDs in industrial zones had been reduced to 45%, followed by 23% allowing for RMDs in business, office, and research parks (23%). Still, in both Phase II and Phase III, industrial zones were the most popular followed by the business, office, and research park zones. Findings were similar relative to commercial zone designations for RMDs: Phase II (14%) and Phase III (16%). Buffer Zones for RMDs: The research shows that municipalities established buffer zones for RMDs from many existing land uses (e.g., schools, houses of worship). For example, Phase II findings revealed that 31% of municipalities set buffer zones for RMDs from playgrounds, parks, and recreational facilities. Set back distances also varied from municipality to municipality, and land use to land use. For example, the mean average buffer zone for RMDs from libraries is 844 feet while the mean average set back for places that sell alcohol is 500 feet. Future research opportunities: Some of the other findings made that were not able to be fully assessed due to time and other resource constraints include:



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x Application fees for special permits: Municipalities may sometimes require an application fee for special permits (e.g., For example: Lynnfield sets a $1500 fee and a renewal fee of $2500);

x Different requirements for distribution versus cultivation/processing: Some municipalities differentiate between medical marijuana facilities that distribute/dispense/administer medical marijuana and those that acquire, cultivate, possess, process, transfer, transport, sell, distribute, dispense. Essentially, the difference relates to whether a facility distributes versus cultivates and processes. By drawing this distinction some municipalities designate different zoning districts for the two functions (e.g., Athol, allowing dispensing operations in two zoning districts and processing in three). Other communities that distinguish between these two functions or operations include Lexington, Worcester, Agawam, Springfield, South Hadley, and Whately.

x Different SPGAs: Municipalities differ in designating a special permit granting authority (SPGA) for the purposes of RMDs: the SPGA may be the Planning Board (e.g., Westminster, Harvard, Hopkinton, Sturbridge, Lancaster, Stoneham, Scituate, Salisbury, Needham, Newbury); the Zoning Board of Appeals (e.g., Hudson, Lakeville, Stoughton, Southborough, Sharon, Rockland, Orleans, Paxton, Seekonk) or the Board of Selectman (e.g., Stockbridge). In Medway, the SPGA is the Planning and Economic Development Board. The rationale for such distinctions may be examined.

x Different Special Permit Lapsing Periods: Municipalities differ in terms of the lapsing of special permits for RMDs: three years (e.g., Orleans); two years (e.g., Westport, Westminster, Southborough, Salisbury, Seekonk, Marion); five years (e.g., Sturbridge, Lancaster, Stoneham, Sudbury, Holden); or one year (e.g., Lynnfield, Sharon.)



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Quick Overall Findings Summary

Phase Duration Municipalities Studied

% of All Municipalities

Phase I March 1, 2013 – August 31, 2013 151 43%

Phase I revealed that 77% of municipalities had adopted temporary moratoria on zoning for RMDs and 11% had zoned to permit RMDs.

Phase II September 1, 2013 – April 30, 2014 164 47%

Phase II showed that 70% (rather than 77% in Phase I) of municipalities had moratoria in place and 30% (rather than 11% in Phase I) had zoned to allow for RMDs.

Phase III May 1, 2014 to August 12, 2014 184 52%

Phase III findings revealed 68% of municipalities had zoned to allow RMDs and 32% percent had moratoria in place.

References The Commonwealth of Massachusetts Executive Office of Health and Human Services Department of Public Health Guidance for Municipalities Regarding the Medical Use of Marijuana - Updated December 13, 2013 Request for Approval for Promulgation of Regulations at 105 CMR 725.000: Implementation of An Act for Humanitarian Medical Use of Marijuana (Chapter 369 of the Acts of 2012)- a Memorandum to the Interim Commissioner Lauren Smith and Members of the Public Health Council from the DPH Medical Marijuana Work Group - May 8, 2013 The Commonwealth of Massachusetts, Department of Public Health, “FAQ Regarding the Medical Use of Marijuana in Massachusetts,” Undated. For more information about all Massachusetts AG decisions, please see: http://www.mlu.ago.state.ma.us/

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