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Home My WebLink About2013 STM AG BYLAW Approval 00 OJS Op 17 D 0 MEMORANDUM TO: Deborah N. Mauger, Chairman - Board of Selectmen FROM: Donna M. Hooper, Town Clerk Iva- DATE: October 11, 2013 RE: June 17, 2013 Special Town Meeting Office of the Attorney General By-Law Approval This office has received notice from the Attorney General, dated September 25, 2013, of approval of the amendments to the Zoning By-Law voted at the June 17, 2013 Special Town Meeting Zoning By-Law: Article 4 —Amend Zoning By-Law—Medical Marijuana Treatment Centers In accordance with Chapter 40, Section 32 of the Massachusetts General Laws, copies of Attorney General approval of the By-Law articles so noted are being published in a Town Bulletin. Amendments to the General Bylaws take effect on the date of posting. Zoning By- Law amendments are deemed to have taken effect from the date voted by Town Meeting. cc: Town Manager Deputy Town Manager Assistant Town Manager for Finance Town Counsel Planning Board Appeals, Board of Health, Board of Building Commissioner Moderator ,3S A01? 1775 0 Town of Lexington Town Clerk's Office 17777799 APRIL 19' 6X ING-fo Donna M. Hooper,Town Clerk Tel: (781) 862-0500 x270 Fax: (781) 861-2754 TOWN BULLETIN RE: Office of the Attorney General Approval of Zoning By-Law Amendments of the June 17, 2013 Special Town Meeting DATE: October 11, 2013 Notification has been received from the Office of the Attorney General regarding action taken on the approval of amendments to the Zoning Bylaw as voted at the June 17, 2013 Special Town Meeting. Zonin bylaw; Article 4—Amend Zoning Bylaw—Medical Marijuana Treatment Centers In accordance with Ch. 40 §32 of the Massachusetts General Laws, these amendments are hereby posted in a public place in each precinct of the Town for public inspection. Maps and documents pertaining to Zoning Articles may be viewed at the Planning Office and Town Clerk's Office. Claims of invalidity by reason of any defect in the procedure of adoption or amendment of Zoning Bylaws may only be made within ninety days of this posting. Copies of the Zoning Bylaw and Map may be examined and obtained at the Planning Department Office in the Town Office Building, 1625 Massachusetts Avenue. Attest: .., Donna M. Hooper Town Clerk 1625 MASSACHUSETTS AVENUE®LEXINGTON,MASSACHUSETTS 02420 M THE COMMONWEALTH OF MASSACHUSETTS W l o OFFICE OF THE ATTORNEY GENERAL w CENTRAL MASSACHUSETTS DIVISION 4 h� 10 MECHANIC STREET, SUITE 301 9,y s�ev WORCESTER, MA 01608 MARTHA C.OAKLEY ATTORNEY GENERAL (508)792-7600 (508)795-1991 fax www.mass. ov/ago September 25, 2013 Donna M. Hooper, Town Clerk Town of Lexington 1625 Massachusetts Ave. Lexington, MA 02421 RE: Lexington Special Town Meeting of June 17,2013 - Case#6849 Warrant Article# 4 (Zoning) Dear Ms. Hooper: Article 4— We approve the amendments to the Lexington by-laws adopted under Article 4 at the June 17, 2013 Special Town Meeting. Our comments on Article 4 are detailed below. Article 4 amends the Town's Zoning Bylaw to add a definition for Medical Marijuana Treatment Center (to be known as a registered marijuana dispensary, consistent with 105 CMR 725.004). Article 4 also adds a new Section 6.10, Medical Marijuana Treatment Centers, which imposes a temporary moratorium through July 31, 2014 on the use of land or structures for such centers. Section 6.10.1 establishes the purpose of the temporary moratorium as follows: Medical marijuana raises novel and complex planning, land use, public safety, and legal issues. A moratorium on the use of land and structures for a Medical Marijuana Treatment Center will allow the Town sufficient time to engage in a planning process to address the effects of this new land use and to enact subsequent local by-laws and regulations. We approve the temporary moratorium because it is consistent with the Town's authority to "impose reasonable time limitations on development, at least where those restrictions are temporary and adopted to provide controlled development while the municipality engages in comprehensive planning studies." Sturges v. Chilmark, 380 Mass. 246, 252-253 (1980). Such a temporary moratorium is clearly within the Town's zoning power when the stated intent is to manage a new use, such as a registered marijuana dispensary and related uses, and there is a stated need for"study, reflection and decision on a subject matter of[some] complexity..." W.R. Grace v. Cambridge City Council, 56 Mass. App. Ct. 559, 569 (2002) (City's temporary 1 moratorium on building permits in two districts was within city's authority to zone for public purposes). The time limit Lexington has selected for its temporary moratorium (through July 31, 2014) appears to be reasonable in these circumstances, where the final version of the DPH regulations was issued on May 8, 2013, and those regulations are expected to provide guidance to the Town. The moratorium is definite in time period and scope (to the use of land and/or structures for registered marijuana dispensaries), and thus does not present the problem of a rate- of-development by-law of unlimited duration which the Zuckerman court determined was ordinarily unconstitutional. Zuckerman v. Hadley, 442 Mass. 511, 512 (2004) ("[A]bsent exceptional circumstances not present here, restrictions of unlimited duration on a municipality's rate of development are in derogation of the general welfare and thus are unconstitutional.") Because we find the amendments adopted under Article 4 are clearly within the Town's zoning power, and otherwise do not conflict with the laws or Constitution of the Commonwealth, (see Bloom v. Worcester, 363 Mass. 136, 154 (1973)), we approve them. I Note: Pursuant to G.L. c. 40, § 32, neither general nor zoning by-laws take effect unless the Town has first satisfied the posting/publishing requirements of that statute. Once this statutory duty is fulfilled, (1) general by-laws and amendments take effect on the date these posting and publishing requirements are satisfied unless a later effective date is prescribed in the by-law, and (2) zoning by-laws and amendments are deemed to have taken effect from the date they were approved by the Town Meeting, unless a later effective date is prescribed in the by-law. Very truly yours, MARTHA COAKLEY ATTORNEY GENERAL Ar11111F'A&71 by: Margaret J. Hurley, Assistant Attorney General Chief, Central Massachusetts Division Director, Municipal Law Unit Ten Mechanic Street, Suite 301 Worcester, MA 01608 (508) 792-7600 x 4402 cc: Town Counsel William L. Lahey During our review of Article 4 we have received communications from a town resident urging us to disapprove the amendments on the basis of alleged procedural and substantive deficiencies at Town Meeting and with the Town's by-law submission. We have thoroughly reviewed the issues raised, and have confirmed that the Town complied with all procedural and substantive requirements in the adoption of Article 4. Any alleged failure to comply with procedural requirements(such as by-laws or rules of order)that might govern the conduct of Town Meeting itself is beyond the scope of the Attorney General's standard of review pursuant to G.L.c.40, § 32.In addition, any decision on such allegations would involve consideration of evidence and determination of factual issues outside the bounds of G.L. c. 40, § 32. Therefore,the allegations raised do not provide grounds for the Attorney General's disapproval of Article 4. 2 CLERK'S TOWN II I, Donna M. Hooper, Clerk of the Town of Lexington, Massachusetts, hereby certify that at the 2013 Special Town Meeting held on June 17, 2013,the following motion was adopted under ARTICLE 4. ARTICLE 4: AMEND ZONING BYLAW—MEDICAL MARIJUANA TREATMENT CENTERS MOTION: That the Zoning Bylaw, Chapter 13 5 of the Code of the Town of Lexington, be amended as follows: (1) Insert the following definition, in the correct alphabetical sequence, for"Medical Marijuana Treatment Center,"to read as follows: Medical Marijuana Treatment Center(MMTC) - Means a not-for-profit entity registered under 105 CMR 725.100, to be known as a registered marijuana dispensary(RMD), that acquires, cultivates, possesses, processes (including development of related products such as edible marijuana infused products (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. Unless otherwise specified, RMD refers to the site(s) of dispensing, cultivation, and preparation of marijuana. (2) Insert anew section 6.10: "Medical Marijuana Treatment Centers,"to read as follows: Section 6.10, Medical Marijuana Treatment Centers 6.10.1 Purpose: Medical marijuana raises novel and complex planning, land use, public safety, and legal issues. A moratorium on the use of land and structures for a Medical Marijuana Treatment Center will allow the Town sufficient time to engage in a planning process to address the effects of this new land use and to enact subsequent local by-laws and regulations. 6.10.2 Applicability: The Town is instituting a moratorium on the use of land or structures for a Medical Marijuana Treatment Center, for a period as described below. 6.10.3 Moratorium Period: The moratorium is in effect until no later than July 31, 2014. (3) and further that non-substantive changes to the numbering of this bylaw be permitted in order that it be in compliance with the numbering format of the Code of Lexington. Declared Adopted by more than the necessary two-thirds vote. A true copy. Attest: Donna M. Hooper, ToVn Clerk