Draft of Marijuana Bylaw for Public Hearing on 04/29/2019

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Town of Otis:      Draft (4) Bylaw    3-30-19

 

ARTICLE #___                                                                                                                      

 

 

ADD TO THE END OF SECTION_6.0_  ( SPECIAL REGULATIONS )

 

6.7 MARIJUANA ESTABLISHMENTS (ME) & MEDICAL MARIJUANA TREATMENT CENTERS (MMTC)

6.7.1  Purpose.

 

The purpose of this section is to provide for the placement of Marijuana Establishments (MEs) and Medical Marijuana Treatment Centers in suitable locations in the Town of Otis (the “Town”) in recognition of and in accordance with “The Regulation of the Use and Distribution of Marijuana Not Medically Prescribed,” M.G.L. c. 94G and “Medical Use of Marijuana”, M.G.L. c. 94I. The specific purpose of this section is to safeguard the built environment by permitting compliance with state law in a manner consistent with community and neighborhood concerns, while also ensuring that those entities permitted to operate a ME or Medical Marijuana Treatment Center, as defined herein, comply with the relevant provisions of Chapter

334 of the Acts of 2016, Chapter 351 of the Acts of 2016, Chapter 55 of the Acts of 2017, and the regulations promulgated by the Cannabis Control Commission (CCC) found at 935 CMR 500.000 and 105 CMR 725.000 et seq.

 

6.7.2  Definitions.

 

CRAFT MARIJUANA COOPERATIVE – a Marijuana Cultivator comprised of residents of the commonwealth organized as a limited liability company or limited liability partnership under the laws of the commonwealth, or an appropriate business structure as determined by the CCC, and that is licensed to cultivate, obtain, manufacture, process, package and brand marijuana and Marijuana Products to deliver marijuana to MEs but not to consumers.

 

INDEPENDENT TESTING LABORATORY – a laboratory that is licensed by the CCC and is: (i) accredited to the most current International Organization for Standardization 17025 by a third-party accrediting body that is a signatory to the International Laboratory Accreditation Accrediting Cooperation mutual recognition arrangement or that is otherwise approved by the commission; (ii) independent financially from any medical marijuana treatment center or any licensee or ME for which it conducts a test; and (iii) qualified to test marijuana in compliance with 935 CMR 500.160 and M.G.L. c.94C, § 34.

 

LICENSE – the certificate issued by the CCC that confirms that a ME has met all applicable requirements pursuant to St. 2012, c. 334, as amended by St. 2017, c. 55 and 935 CMR 500.000. A ME may be eligible for a provisional or final license.

 

MARIJUANA ESTABLISHMENT (ME) – a Marijuana Cultivator, Craft Marijuana Cooperative, Marijuana

Product Manufacturer, Marijuana Retailer, Independent Testing Laboratory, Marijuana Research Facility, Marijuana Transporter, or any other type of licensed marijuana-related business, except a medical marijuana treatment center.

 

MARIJUANA CULTIVATOR – an entity licensed to cultivate, process, and package marijuana; to deliver marijuana to MEs; and to transfer marijuana to other MEs but not consumers.

 

MARIJUANA CULTIVATION FACILITIES – facilities that a Marijuana Cultivator may be licensed to operate.

 

MARIJUANA PRODUCT MANUFACTURER – an entity licensed to obtain, manufacture, process, and package marijuana and Marijuana Products; to deliver marijuana and Marijuana Products to other MEs, and to transfer marijuana and Marijuana Products to other MEs but not consumers.

 

MARIJUANA PRODUCTS – products that have been manufactured and contain marijuana or an extract from marijuana, including concentrated forms of marijuana and products composed of marijuana and other ingredients that are intended for use or consumption, including edible products, beverages, topical products, ointments, oils and tinctures.

 

MARIJUANA RETAILER – an entity licensed to purchase and deliver marijuana and Marijuana Products from MEs and to deliver, sell, or otherwise transfer marijuana and Marijuana Products to other MEs and to consumers.

 

MARIJUANA TRANSPORTER – an entity, not otherwise licensed by the CCC, that is licensed to purchase, obtain, and possess cannabis or marijuana product solely for the purpose of transporting, temporary storage, sale and distribution to MEs, but not to consumers.

 

MEDICAL MARIJUANA TREATMENT CENTER – a not-for-profit entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their personal caregivers.

 

MICRO-BUSINESS – a ME that is licensed to act as a: licensed Marijuana Cultivator in an area less than 5,000 square feet; licensed Marijuana Product Manufacturer, and licensed marijuana delivery service in compliance with the operating procedures for each such license.

 

RESEARCH FACILITY – an entity licensed to engage in research projects by the CCC.

 

SPECIAL PERMIT GRANTING AUTHORITIES, the Planning Board shall be the Special Permit Granting Authority (SPGA) for all MEs and Medical Marijuana Treatment Centers.  The Zoning Board shall be the Special Granting Authority for all property variances and changes of use special permits.

 

SPECIAL OVERSIGHT AUTHORITIES, The Conservation Commission and The Board of Heath shall have authority over those areas within their specific jurisdictions in respect to any given application.

 

  • Designated Locations for MEs and Medical Marijuana Treatment Centers.

 

6.7.3.1  MEs and Medical Marijuana Treatment Centers may be sited on any property within the Town provided it is not restricted by any provision of this Bylaw and a business and/or a light  industrial zoning variance is granted to the applicant for the proposed site & usage.

 

  • No ME or Medical Marijuana Treatment Center shall be located within 1000 feet of any licensed public or private school providing education in pre k, kindergarten or any of grades 1 through 12, any public playground, or licensed daycare or other similar facility where organized youth activities occur. Distances shall be between the nearest property lines of each use. The Special Permit Granting Authority may reduce this setback distance if it finds site-specific circumstances or barriers adequately separate the proposed marijuana use and a protected use. The burden shall be on the Applicant to demonstrate that reducing the minimum setback will serve the purpose of this Section and address the concerns of the Special Permit Granting Authority.

 

  • Designated Number of MEs and Medical Marijuana Treatment Centers.

 

6.7.4.1  The total aggregate number of non-retail MEs in the Town shall not exceed Three (3) establishment(s).

  • The total number of Marijuana Retailers shall not be greater than one (1)

6.7.4.3       The total number of Medical Marijuana Treatment Centers shall not be greater than one (1).

 

 

6.7.5 Special Permit Required. No ME or Medical Marijuana Treatment Center shall be operated or expanded without first obtaining a Special Permit from the Town Special Permit Granting Authority in accordance with this Section and Section 9.3, “Special Permits”

 

6.7.5.1  The Special Permit Granting Authority shall be the Planning Board.

 

6.7.5.2  A Special Permit shall only be valid for use by the Applicant and will become null and void upon the sale or transfer of the license of an ME or Medical Marijuana Treatment Center or change in the location of the business.

 

6.7.5.3  In the event that the Commonwealth’s licensing authority suspends the license or registration of a ME or Medical Marijuana Treatment Center, the Special Permit shall be so suspended by the Town until the matter is resolved to the satisfaction of said licensing authority.

 

6.7.5.4  The Special Permit shall be considered null and void if meaningful construction has not begun on the project within 2 years of obtaining said permit, as determined by the Building Inspector or their designee(s).

 

  • Conditions of Special Permit approval may include but are not limited to the following:

 

6.7.5.5.a  Site Plan Review

6.7.5.5.b  Street, side or rear setbacks greater than the minimum required by this bylaw;

6.7.5.5.c  Proposed modification of the exterior features or appearances of any structure;

6.7.5.5.d  Limitation of size, number of occupants or hours of operation;

6.7.5.5.e  Regulation of number, design and location of access for vehicles or other traffic features;

6.7.5.5.f  Requirement of off-street parking or other special features beyond the minimum required by this or other applicable ordinances;

 

6.7.5.5.g  Proposed security precautions shall be adequate to protect the safety and well-being of users of the establishment.

6.7.5.5.h  A zoning variance for the proposed location and use must be obtained from the Zoning Board and shall only be valid for use by the Applicant and will become null and void upon the discontinuance, sale, transfer or revocation of the license of an ME or Medical Marijuana Treatment Center or a change in the location of the business.

 

6.7.6 Marijuana Retailer and Medical Marijuana Treatment Centers Requirements & Performance Standards

 

  • The minimum lot size for this use shall be two (2) acres within the residential (R-40) district and 20,000 square feet in the village (V1) districts. The Special Permit Granting Authority may modify or waive this requirement.
  • The minimum required front, side, and rear yard setbacks shall be forty (40) feet in the R-40 district and 20 feet in the V1 districts..
  • In any residential area, any property line of an abutting residential or institutional use shall be provided with a continuous screening along such side and rear property lines.
  • In reviewing a Special Permit under this Section the Special Permit Granting Authority shall consider the impact of the proposal on the following:

 

  • Character of the neighborhood to include visual compatibility with surrounding uses.
  • Proximity to other marijuana uses to prevent clustering.
  • Relationship to surrounding uses to avoid unnecessary exposure to minors.
  • The provision of adequate shielded lighting to promote security for customers and the public, and to prevent light projection onto neighboring properties.
  • Hours of operation.
  • Site design and other development related site impacts.

 

6.7.7 Outdoor Cultivation Requirements & Performance Standards

               Commercial outdoor cultivation of marijuana is prohibited.

 

6.7.8 Commercial Indoor Cultivation, Craft Cooperative, Manufacturing, Processing, Testing & Research:   Requirements & Performance Standards

 

6.7.8.1  The minimum lot size for industrial uses cultivation, craft cooperative, manufacturing, processing, test & research uses shall be twenty (20) acres  as required by Massachusetts law M.G.L. c.94G.

 

      • The minimum required building setbacks shall be three hundred (300) feet for front yards, and three hundred (300) feet for side and rear yards.

 

  • No fertilizers, chemicals, compost, soils, materials, machinery, or equipment shall be stored outdoors or within the required front, side, and rear yard building setbacks.

 

  • In all residential areas, any property line of an abutting residential or institutional use shall be provided with a continuous screening along such side and rear property lines.

 

  • In reviewing a Special Permit under this Section the Special Permit Granting Authority shall consider the impact of the proposal on the following:

 

  • Character of the neighborhood to include visual compatibility with surrounding uses.
  • Proximity to other marijuana uses to prevent clustering.
  • Relationship to surrounding uses to avoid unnecessary exposure to minors.
  • The provision of adequate lighting to promote security for customers and the public, and not project light onto adjacent properties.
  • Hours of operation.
  • Site design and other development related site impacts.

 

6.7.9  Additional Requirements & Performance Standards for MEs and Medical Marijuana Treatment Centers

 

6.7.9.1  Hours of operation. Operating hours of a Marijuana Retailer or Medical Marijuana Treatment Center shall 9:00 am to 7:00 pm, unless determined otherwise by the Special Permit Granting Authority. Hours of operation shall apply to all sales, delivery and dispensing activities for the business. There shall be no hourly restrictions all other MEs, unless imposed by said authority as part of site plan approval.

 

6.7.9.2  Signage. All signage must comply with the regulations set forth in Section 5.2 of the Zoning Bylaw for the Town and the regulations established by the CCC.

 

6.7.9.3  On-site consumption of marijuana. On-site consumption is prohibited on or within the premises of any ME, except for Research Facilities and except as may be allowed by state law.

 

6.7.9.4  Visibility of activities. All activities of any ME shall be conducted indoors..

 

6.7.9.5  Paraphernalia. Devices, contrivances, instruments and paraphernalia for inhaling or otherwise consuming marijuana, including, but not limited to, rolling papers and related tools, water pipes, and vaporizers may lawfully be sold at a Marijuana Retailer. No retail marijuana, marijuana products or paraphernalia shall be displayed or kept in a retail marijuana store so as to be visible from outside of the licensed premises.

 

6.7.9.6  Lighting. Outdoor light levels shall not exceed 1 foot-candle along property lines, nor 10 foot-candles for any location on the property. Any light poles, new or existing, may not exceed 18’ in overall height. All outdoor light fixtures must be shielded with light aimed downward to prevent light trespass onto adjacent properties (Dark Sky compliant). The Special Permit Granting Authority may modify this requirement if, upon recommendation by the Police Chief, it is required for adequate safety and security.

 

6.7.9.7  Landscaping.  All Marijuana Establishments (ME) shall be landscaped to harmonize the building with surrounding uses. Landscaping shall be provided at the rate of one (1) canopy tree for every 30’ of lineal road frontage and shall be located within 15’ of the front property line(s). Existing trees may count toward this requirement and may be clustered. Landscaping must consist of native, non-invasive plant species. The Special Permit Granting Authority may modify or waive this requirement.

 

6.7.9.8  Control of Emissions. Sufficient measures and means of preventing smoke, odors, debris, dust, fluids, chemicals and any other substances from exiting a ME, must be provided at all times. In the event that any odors, debris, dust, fluids or other substances exit a Marijuana Retailer, Marijuana Product Manufacturer, Research Facility or Independent Testing Laboratory, the owner of the subject premises and the licensee shall be jointly and severally liable for such conditions and shall be responsible for immediate, full cleanup and correction of such condition. The licensee shall properly dispose of all such materials, items and other substances in a safe, sanitary and secure manner and in accordance with all applicable federal, state and local laws and regulations. A detailed plan addressing the measures and means of control of all  potential emissions using the Best Available Technology (BAT) must be provided.

 

6.7.9.9  Odor Control and Mitigation:  A detailed plan to control and mitigate any odors or emissions of any kind from exiting the proposed ME facility, using the Best Available Technology (BAT) must be submitted and may be subject to change by the Otis Planning Board. The plan must include Design and Specifications of all filtration technologies and equipment proposed to be implemented along with an action plan addressing the response to any emissions that may occur during the operation of the facility.  At any time during the ongoing operations of a duly licensed ME facility, if emissions or odors occur, then the ME will immediately correct such condition and inform the permit granting authority in writing of the measures taken to mitigate.

 

Considering the complex and technical nature of the marijuana industry, the variety of ME’s , the issues of emissions control & mitigation and the rapidly evolving technologies, the Special Permit Granting Authorities reserve the right and may at its’ option engage an independent expert consultant to review and advise the Special Permit Granting Authorities concerning any application, in addition the Town of Otis shall have the right to continued monitoring of omissions and water runoff from the facility,  with all said consultant costs  to be the sole responsibility of and paid for by the Applicant.

 

See Appendix E & F:  Odor Control Plan Template

 

6.7.9.10  Parking. Off-street parking must be provided as follows:

 

  • Marijuana Cultivation Facilities and Manufacturing Product Manufacturers: one (1) parking space for each employee plus adequate space for service and supply vehicles and one (1) parking space for each 1,000 square feet of gross floor area.

 

  • Marijuana Research Facilities and Independent Testing Laboratories: one (1) parking space for each employee plus one (1) parking space for each 300 SF of gross floor area.

 

  • Marijuana Retailers and Medical Marijuana Treatment Centers: one (1) parking space for each employee plus one (1) parking space for each 200 SF of gross floor area.

 

6.7.9.11  Marijuana Retailers are prohibited from installing an on-site drive-through facility.

 

6.7.9.12  Fencing. As a condition of the Special Permit approval, the Special Permit Granting Authority will determine the location, height and type of fencing, if applicable. Additional fencing may be required if determined necessary by the Police Chief. In no instance shall barbed-wire fencing be permitted.

 

6.7.9.13  Marijuana Waste Disposal. There shall be no outdoor storage of marijuana waste for any ME, Marijuana Retailer, Medical Marijuana Treatment Center, Marijuana Cultivation Facility, Marijuana Product Manufacturer, Marijuana Research Facility or Testing Laboratories. All marijuana waste generated shall be secured indoors, to be serviced by an authorized professional waste removal service company or medical waste company.

 

6.7.9.14  Marijuana Retailers are prohibited from selling alcoholic beverages.

 

6.7.10  Filing Requirements.

 Applications for Special Permits shall be submitted to the Planning Board for approval. The Planning Board, acting as the Special Permit Granting Authority, shall then approve, approve with conditions, or deny the site plan and or Special Permit. No Special Permit shall take effect until such decision by the Special Permit Granting Authority has been recorded at the Middle District Registry of Deeds.

 

A zoning variance for the proposed location and use must be obtained from the Zoning Board and shall only be valid for use by the Applicant and will become null and void upon the discontinuance, sale, transfer or revocation of the license of an ME or Medical Marijuana Treatment Center or a change in the location of the business.

 

Said applications shall include the following:

 

6.7.10.1  Site Plan. In addition to the site plan contents required per Section 9.4, the site plan shall also include:

6.7.10.1.a  The names, mailing addresses, phone numbers, email addresses and signatures of the

applicant, owner and operator.

 

6.7.10.1.b  Physical address (if one exists) and the map, lot and block number of the proposed site.

 

6.7.10.1.c  Security Plan. A security plan is required to ensure the safety of employees, patrons and the public to protect the premises from theft or other criminal activity. The security plan shall be reviewed and approved by the local Police Chief. The following elements may be included in the security plan and are only required if deemed necessary by the Police Chief:

6.7.10.1.c.i   An interior floor plan (secured areas, windows, doors, etc.)

6.7.10.1.c.ii  Exterior lighting

6.7.10.1.c.iii Fencing

6.7.10.1.c.iv Gates

6.7.10.1.c.v Alarms

6.7.10.1.c.vi Additional security measures not listed above.

 

6.7.10.2  Traffic Study. The Special Permit Granting Authority may require a traffic study that includes an analysis of traffic generation, circulation and off-street parking demands to determine sufficient parking and optimum configuration for site ingress and egress.

 

  • Conservation Commission review along with a written copy of their findings is required.

 

  • Board of Health (BOH) review along with a written copy of their findings is required.

 

6.7.10.5  State License. A copy of the license or registration as a ME from the CCC or documentation that demonstrates that said facility and its owner/operators qualify and are eligible to receive a Certification of Registration and meet all of the requirements of a ME in accordance with the regulations adopted by said commission, as amended.

 

  • Site Control. Evidence that the Applicant has site control and the right to use the site for a ME in the form of a deed, valid lease, or purchase & sale agreement or a notarized statement from the property owner certifying the Applicant has firm site control.

 

  • Applications for Site Plan Review shall include a project impact statement, which addresses potential impacts of the proposed use ON: The local neighborhood, local traffic, on-site parking, ingress & egress, storm-water runoff, onsite water use, onsite wastewater, onsite storage usage & disposal of marijuana products, fertilizers and/or any other chemicals used in the proposed operations, address all potential emissions, proposed lighting, and landscaping.

 

6.7.11 Discontinuance of Use.

 Any ME or Medical Marijuana Treatment Center under this Section shall be required to remove all material, plants, equipment, and other paraphernalia in compliance with regulations established by the CCC within 30 days after the expiration or voiding of its license. A Performance Bond or Cash Account in an appropriate amount determined by the Special Permit Granting Authority shall be secured by the applicant and issued to and held by the Town to assure compliance under this section is required.

 

 

  • No Town Liability: Indemnification.

 

6.7.12.1  The Applicant and all licensees waive and release the Town, its elected officials, employees and agents from any liability for injuries, damages or liabilities of any kind that result from any arrest or prosecution of the ME or Medical Marijuana Treatment Center owners, operators, employees, clients or customers for any violation of state or federal laws, rules or regulations.

 

6.7.12.2  The Applicant, in receiving approvals issued pursuant to this chapter, and all licensees, jointly and severally, if more than one, agree to indemnify, defend and hold harmless the Town, its elected officials, employees, attorneys, agents, insurers and self-insurance pool against all liability, claims and demands on account of any injury, loss or damage, including, without limitation, claims arising from errors or emissions, bodily injury, personal injury, sickness, disease, death, property loss or damages or any loss of any kind whatsoever, arising out of or in any manner connected with any ME or Medical Marijuana Treatment Center that is subject of the approval/license.

 

  • ME Facility  

 

6.7.13.1  The Building Inspector and Police Chief shall inspect any operating ME or Medical Marijuana Treatment Center within the Town annually to ensure compliance with this section and with any conditions imposed by the Special Permit Granting Authority as a condition of the Special Permit approval.

 

6.7.13.2   The first inspection shall not be more than six (6) months after beginning operation.

 

6.7.13.3   See Appendix E and F for detailed emission inspection requirements.

 

6.7.14  Other Laws Remain Applicable.

 Business License Required. At all times while a permit is in effect the licensee shall possess a valid license.

 

  • To the extent that the state has adopted or adopts in the future any additional or stricter law or regulation governing MEs or Medical Marijuana Treatment Centers, the additional or stricter regulation shall apply. Compliance with any applicable state law or regulation shall be deemed an additional requirement for issuance or denial of any license under this chapter, and noncompliance with any applicable state law or regulation shall be grounds for revocation or suspension of any license issued hereunder.

 

  • Any ME or Medical Marijuana Treatment Center may be required to demonstrate, upon demand by law enforcement officers of the Town and/or the local licensing authority that the source and quantity of any marijuana found upon the licensed premises are in full compliance with any applicable state law or regulation.

 

  • The issuance of any license pursuant to this chapter shall not be deemed to create an exception, defense or immunity to any person in regard to any potential criminal liability the person may have for the cultivation, possession, sale, distribution or use of marijuana.

 

  • Prior to the issuance of a Special Permit or site plan approval, the ME or Medical Marijuana

Treatment Center must have entered into a Host Community Agreement (HCA) with the Town. If, upon review by the Select Board, the ME is found to not be fully in compliance with the HCA, the special permit and/or the local license may be suspended or rescinded.

 

 

  • It shall be the responsibility of the License Holder, his or her business agent and/or Permit Holder to ensure compliance with all sections of this bylaw pertaining to his or her distribution of marijuana and/or marijuana products and/or the manufacture of marijuana or marijuana products. The violator shall receive:

 

  • In the case of a first violation, a fine of three hundred dollars ($300.00).

 

  • In the case of a second violation within 24 months of the date of the current violation, a fine of three hundred dollars ($300.00) and the License or Permit shall be suspended for seven (7) consecutive business days.

 

 

  • In the case of three or more violations within a 24 month period, a fine of three hundred dollars ($300.00) and the License or Permit shall be suspended for thirty (30) consecutive business days.

 

  • Refusal to cooperate with inspections pursuant to this bylaw shall result in the suspension of the License or Permit for thirty (30) consecutive business days.

 

  • In addition to the monetary fines set above, any License Holder or Permit Holder who engages in the sale or distribution of marijuana or marijuana products while his or her License or Permit is suspended shall be subject to the suspension of all Town-issued permits and licenses for thirty (30) consecutive business days.

 

  • The Town Select Board shall provide notice of the intent to suspend a License or Permit, which notice shall contain the reasons therefor and establish a time and date for a hearing which date shall be no earlier than seven (7) days after the date of said notice. The License Holder or its business agent or Permit Holder shall have an opportunity to be heard at such hearing and shall be notified of the Town’s decision and the reasons therefore in writing. After a hearing, the Town shall suspend the License or Permit if the Town finds that a violation of this bylaw occurred. For purposes of such suspensions, the Town shall make the determination notwithstanding any separate criminal or non-criminal proceedings brought in court hereunder or under the Massachusetts General Laws for the same offense. All marijuana and marijuana products shall be removed from the retail establishment upon suspension of the License. Failure to remove all marijuana and marijuana products shall constitute a separate violation of this regulation.

 

  • Whoever violates any provision of this regulation may be penalized by the non-criminal method of disposition as provided in Massachusetts General Laws, Chapter 40, Section 21D or by filing a criminal complaint at the appropriate venue.

 

  • Each day any violation exists shall be deemed to be a separate offense.

 

  • Enforcement of this regulation shall be by the Otis Select Board.

 

  • Any resident who desires to register a complaint pursuant to the regulation may do so by contacting the Town or its designated agent(s) in writing and they shall investigate.

 

6.7.16  Severability.

 The provisions of this bylaw are severable, and the invalidity of any section, subdivision, subsection, paragraph or other part of this bylaw shall not affect the validity or effectiveness of the remainder of this bylaw.