§ 3 — Local control

Massachusetts § 3

• Jurisdiction: Massachusetts
• Part I: ADMINISTRATION OF THE GOVERNMENT
• Title XV: REGULATION OF TRADE
• Ch. 94G: REGULATION OF THE USE AND DISTRIBUTION OF MARIJUANA NOT MEDICALLY PRESCRIBED

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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 operate to: (i) prevent the conversion of a medical marijuana treatment center licensed or registered not later than 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 (ii) limit the number of marijuana establishments below the limits established pursuant to clause (2);(2) limit the number of marijuana establishments in the city or town; provided, however, that in the case of a city or town in which the majority of voters voted in the affirmative for question 4 on the 2016 state election ballot, entitled ''Legalization, Regulation, and Taxation of Marijuana'', 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:(i) prohibit the operation of 1 or more types of marijuana establishments within the city or town;(ii) limit the 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 section 15 of chapter 138; or(iii) limit the 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, however, that if a city or town enacts an ordinance or by-law above the commission's standard, that local ordinance or by-law shall not 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)(1) For the purposes of this subsection, the following words shall, unless the context clearly requires otherwise, have the following meanings:''Ballot question committee'', as defined in section 1 of chapter 55.''Registrars'', as defined in section 1 of chapter 50.(2) The city council of a city and the board of selectmen or town council of a town shall, upon the filing with the city or town clerk of a petition meeting the requirements of this subsection, request that the question of whether to allow, in the city or town, the sale of marijuana and marijuana products for consumption on the premises where sold, be submitted to the voters of the city or town.The petition shall be on a form prepared by the state secretary, signed by not less than 10 per cent of the number of voters of the city or town who voted at the preceding biennial state election and submitted in a timely manner, after filing the petition with the city or town clerk, to the board of registrars or election commissioners. The board of registrars or election commissioners shall certify the signature of registered voters not more than 7 days after receipt of the petition. Upon certification of the signatures, the following question, and a fair and concise summary of the question to be prepared by the city solicitor or town counsel, shall be placed on the ballot for the next regularly occurring municipal or state election in the city or town:''Shall [city or town] allow the sale of marijuana and marijuana products, as those terms are defined in section 1 of chapter 94G of the General Laws, for consumption on the premises where sold, a summary of which appears below?''Notwithstanding the foregoing, the question shall appear on the ballot for the next regularly occurring municipal election if the election is to be held not less than 35 days after certification. To appear on the ballot for the next regularly occurring biennial state election, the city or town clerk shall provide notice, including the ballot question and summary, to the state secretary not later than the first Wednesday in August before the election.If a majority of the votes cast in the city or town are in favor of allowing the consumption of marijuana or marijuana products on the premises where sold, such city or town shall have authorized the consumption of marijuana and marijuana products on the premises where sold.(3) As an alternative to a local voter initiative petition process under paragraph (2), a city or town may, by ordinance or by-law, allow the consumption of marijuana or marijuana products on the premises where sold. No local voter initiative shall be required if the sale of marijuana and marijuana products for consumption on the premises is authorized by local law.(4) A ballot question committee organized to favor or oppose a question placed on the ballot pursuant to paragraph (2) of this subsection shall comply with applicable guidance and regulations issued by the office of campaign and political finance for municipal ballot question committees.(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.(d)(1) A marijuana establishment or a medical marijuana treatment center seeking a new license or renewal of a license to operate or continue to operate in a municipality that permits such operation shall negotiate and execute a host community agreement with that host community setting forth the conditions to have a marijuana establishment or medical marijuana treatment center located within the host community, which shall include, but not be limited to, all stipulations of responsibilities between the host community and the marijuana establishment or medical marijuana treatment center.(2)(i) Notwithstanding any general or special law to the contrary, a host community agreement may include a community impact fee for the host community; provided, however, that no host community agreement shall include a community impact fee after the eighth year of operation of a marijuana establishment or a medical marijuana treatment center. The community impact fee shall: (A) be reasonably related to the costs imposed upon the municipality by the operation of the marijuana establishment or medical marijuana treatment center, as documented pursuant to subparagraph (iii); (B) amount to not more than 3 per cent of the gross sales of the marijuana establishment or medical marijuana treatment center; (C) not be effective after the marijuana establishment or medical marijuana treatment center's eighth year of operation; (D) commence on the date the marijuana establishment or medical marijuana treatment center is granted a final license by the commission; and (E) not mandate a certain percentage of total or gross sales as the community impact fee.(ii) Notwithstanding any general or special law to the contrary, the community impact fee shall encompass all payments and obligations between the host community and the marijuana establishment or a medical marijuana treatment center. The community impact fee shall not include any additional payments or obligations, including, but not limited to, monetary payments, in-kind contributions and charitable contributions by the marijuana establishment or medical marijuana treatment center to the host community or any other organization. Payment of the community impact fee shall be due annually to the host community, with the first payment occurring not sooner than upon the first annual renewal by the commission of a final license to operate the marijuana establishment or medical marijuana treatment center. Any other contractual financial obligation that is explicitly or implicitly a factor considered in, or is a condition of a host community agreement, shall not be enforceable. Nothing in this section shall preclude a marijuana establishment or a medical marijuana treatment center from voluntarily providing organizations with monetary payments, in-kind contributions and charitable contributions after the execution of the host community agreement; provided, however, that a host community agreement shall not include a promise to make a future monetary payment, in-kind contribution or charitable contribution.(iii) Any cost imposed upon a host community by the operation of a marijuana establishment or medical marijuana treatment center shall be documented by the host community and transmitted to the licensee not later than 1 month after the date of the annual renewal of a final license to operate the marijuana establishment or medical marijuana treatment center and shall be a public record as defined by clause Twenty-sixth of section 7 of chapter 4 and chapter 66. If a licensee believes the information documented and transmitted by a host community is not reasonably related to the actual costs imposed upon the host community in the preceding year by the operation of the marijuana establishment or medical marijuana treatment center, the licensee may bring a breach of contract action against the host community and recover damages, attorneys' fees and other costs encompassed in the community impact fee that are not reasonably related to the actual costs imposed upon the city or town.(3) The commission shall review and approve each host community agreement as part of a completed marijuana establishment or medical marijuana treatment center license application and at each license renewal. If the commission determines that a host community agreement is not in compliance with this section, the commission shall provide written notice of any deficiencies and may request additional information from the prospective licensee and host community. The commission shall not approve a final license application unless the commission approves the host community agreement and certifies that the host community agreement complies with this subsection. The commission shall complete its review of a host community agreement not later than 90 days after it is received by the commission.(4) A host community may waive the host community agreement requirement; provided, however, that the host community shall submit to the commission a written waiver executed by the host community and the marijuana establishment or medical marijuana treatment center.(5) Notwithstanding any general or special law to the contrary, the commission shall promulgate regulations to establish minimum acceptable standards for host communities to promote and encourage full participation in the regulated marijuana industry by people from communities that have previously been disproportionately harmed by marijuana prohibition and enforcement and to positively impact those communities; provided, however, that a host community may establish procedures and policies beyond the minimum regulations established by the commission. A city or town that is not a host community shall establish such procedures and policies before entering into a host community agreement with a marijuana establishment or medical marijuana treatment center.(6) The commission shall issue rules and promulgate regulations necessary to implement this subsection.(e) If an ordinance or by-law shall be submitted for approval pursuant to clause (2) of subsection (a), the following procedures shall be followed:(1) The city solicitor or town counsel shall prepare a fair and concise summary of the proposed ordinance or by-law which shall make clear the number and types of marijuana establishments which shall 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 of votes cast 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 by the city or town council, with the approval of the mayor or chief executive officer of a city that does not have a mayor, and subject to a municipal charter, if applicable.(f) A city or town shall adhere to cannabis control commission regulations promulgated pursuant to section 4 regarding procedures and policies for host communities to promote and encourage full participation in the regulated marijuana industry by people from communities that have been disproportionately harmed by marijuana prohibition and enforcement and may establish additional procedures and policies to further this goal. The failure of a host community to adhere to such procedures and policies shall result in a monetary penalty to the host community equal to the annual total of community impact fees received from all marijuana establishments or medical marijuana treatment centers operating within the host community, to be deposited into the Cannabis Social Equity Trust Fund established in section 14A of chapter 94G.