Town Council - Ordinance & Rules Committee

Braintree Town Council MEMBERS David Ringius, Jr, Chairman Committee on Ordinance & Rules Shannon Hume, Vice- Chairman One JFK Memorial Drive Julia Flaherty, Member Braintree, Massachusetts 02184 Charles Ryan, Member August 1, 2022 MINUTES A meeting of the Committee on Ordinance & Rules was held in Cahill Auditorium on Monday, August 1, 2022, beginning at 6:00pm. Chairman Ringius was in the Chair. Clerk of the Council, Susan Cimino conducted the roll call. All votes were conducted by Roll Call Vote. Present: David Ringius, Jr, Chairman Julia Flaherty, Member Charles Ryan, Member Meredith Boericke, President (ex-officio) Not Present: Shannon Hume, Vice-Chairwoman Also Present: James M. Casey, Town Clerk James Arsenault, DPW Director Dru Ledbetter, CEO FlowerXpress Mark Doucette, Chief Revenue Officer Huggens Lafond, Chief of Cultivation Kerlee Nicolas, Chief Financial Officer Karen Chacón, Chief DEI Officer Marquis Cohen, Chief Operating Officer Adrian Brown, Chief Scientific Officer Leslie Pascual, Chief Technology Officer Agnieszka Grosso, Head of Brand & Creative Dennis Braybeck, Senior Mechanical Engineer Louis Crispin, Electrical Engineer Many residents David Ringius, Jr, Chairman of the Committee on Ordinance & Rules asked for a moment of silence for our first responders and all those serving home and abroad. August 1, 2022 Committee on Ordinance & Rules 1 of 9 Approval of Minutes • None Old Business • 22 015 Citizen Petition: Zoning Ordinance Text Amendments: Proposed Amended Article XVIII – Medical and Adult Use or Non-Medical Marijuana Establishments and related amendments to Section 135-601 and 135-806 or take up any action relative thereto A Motion was made by Councilor Ryan to Take off the TABLE Order 22 015 Motion: by Councilor Ryan to Take off the TABLE Order 22 015 Second: by Councilor Flaherty Vote: For (3 – Flaherty, Ringius, Ryan), Against (0), Absent (1 - Hume), Abstain (0) Chairman Ringius stated I want to thank all those who have participated in this for the past few months now. Thank you to all the departments involved who offered their opinion and the petitioner. The timeline thus far: • Our journey began with the Citizens Petition Submitted March 9, 2022- Proposal to Braintree Planning and Zoning to amend Section 135 Article XVIII- Medical and Adult Use or Non-Medical Marijuana Establishments • April 12, 2022 Planning Board agenda – continued to the PB May meeting • April 26, 2022 full Town Council referred this matter to the Committee on Ordinance & Rules sub- committee where it has been • Abutters Meeting- May 5th, 2022 (District 5) • Presentation to Planning Board- May 10th, 2022 • May 25, 2022 Braintree Partnership held a public meeting • Planning Board Recommendation to Town Council – dated May 31st 2022 • Presentation to Ordinances and Rules Committee 4 meetings: • June 1st O&R virtual meeting via Zoom with a FlowerXpress initial presentation • June 22nd O&R in-person meeting – public comments allowed as well as remote. Opinions were read into the record from Board of Health, Police and Fire • July 11th O&R in-person meeting – FlowerXpress gave presentation on odor mitigation and use of water • August 1st – 4th O&R meeting • Other dates of from a lega perspective: • March 26 & April 4, 2022 Legal Notice for the Planning Board Public Hearing ran in the Patriot Ledger • April 29 & May 6, 2022 Legal Notice for the Town Council Public Hearing ran in the Patriot Ledger • May 2, 2022 direct abutters were mailed a copy of the legal notice of the Town Council Public Hearing August 1, 2022 Committee on Ordinance & Rules 2 of 9 David Ringius, Jr, Chairman of the Committee on Ordinance & Rules stated the legislator has put forward new regulations that may have an impact on the amount of revenue a town or municipality can glean from the cannabis industry within its borders. There is some apprehension on what this could mean. Nicole Taub, Chief of Staff/Town Solicitor stated a bill was brought forward by the legislation for the governors review and signature. This is in regards to cannabis and specifically relative to equity in the cannabis industry. As I understand it this bill was to further promote the cannabis industry in the commonwealth and specifically to promote those businesses that fall into the social equity category by definition under the statute. One section is specific to the host agreement which are requirement for licensing through the cannabis control commission. It is questioned if the state should play a role in a host agreement when it is effectively a private negotiation between the municipality and an entity looking to do business there. What the current state of the law allows for in a host community agreement generally is an impact fee not to exceed 3% percent of the gross sales of the entity operating in your municipality. The 3% is a number that does not have to be substantiated. You don’t have to show the impact for and there’s no restriction on what you can do with the funds that are provided through that host community impact fee. What the legislation does here is seeks to impose some parameters around the monies that municipalities can collect while not impacting the maximum amount collectable which remains at that 3 percent. What the law does is if you are going to have a community impact fee which is now an optional component of these agreements it has to meet certain requirements. It must be reasonably related to the costs imposed on the municipality by the operation of the establishment as documented and the documentation is subject to public records under the law. The difference now is you have to show an impact and where you had potentially 10 years of payments you now only have up to 8 years. This does not change our ability to collect excise taxes from the delivery component. Email from the Office of Senator John F. Keenan: The proposed bill on Marijuana Industry Reforms. You can find the text of the bill at this link: https://malegislature.gov/Bills/192/S3096. A summary of the bill follows. The Massachusetts Legislature passed legislation, An Act relative to equity in the cannabis industry, that encourages and facilitates participation in the cannabis industry from communities disproportionally harmed by marijuana criminalization by creating a Social Equity Trust Fund. The bill also strengthens the host community agreement process and clarifies procedures for permitting social consumption sites. This legislation creates a trust fund to make grants and loans to social equity program participants and economic empowerment priority applicants, which will give entrepreneurs from communities that have been disproportionately harmed by marijuana prohibition and enforcement better access to grants and loans to get their businesses off the ground. August 1, 2022 Committee on Ordinance & Rules 3 of 9 Fifteen per cent of the revenue collected from the sale of marijuana and marijuana products must be transferred to the Cannabis Social Equity Trust Fund, which will be administered by the Executive Office of Housing and Economic Development (EOHED), in consultation with a newly created Cannabis Social Equity Advisory Board. The legislation clarifies the Cannabis Control Commission’s (CCC) role in reviewing and approving host community agreements (HCA), which are executed between marijuana businesses and their host municipalities. It authorizes the Commission to prioritize social equity program businesses and economic empowerment priority applicants for expedited review. The legislation also clarifies the scope of HCAs and adds new criteria, such as: • No host community agreement can include a community impact fee that is beyond the business’s eighth year of operation. • The community impact fee must be reasonably related to the actual costs required to operate a cannabis business in a community. • The CCC must review and approve each host community agreement as part of the license application and renewal process. • All host communities must establish procedures and policies to encourage full participation in the regulated marijuana industry by people from communities that have been disproportionately harmed by marijuana prohibition and enforcement. The social consumption policy, which would allow the sale of marijuana and marijuana products for consumption on the premises where sold, is authorized by existing law. However, this legislation amends it to ensure proper procedures are taken regarding local initiative petitions. Under this legislation, as an alternative to local initiative petitions, a city or town may also allow for social consumption sites through the passage of a by-law or ordinance. For individuals seeking to expunge a record for previous offenses that are now decriminalized, this legislation requires the court to order the expungement of the record within 30 days of the request and expunge records for possession of marijuana or distribution of marijuana based on the now legal amount. Having been passed by the Senate and the House, An Act relative to equity in the cannabis industry now goes to the Governor for his signature. Best, Mark S. Sternman Chief of Staff Office of Senator John F. Keenan State House, Room 413-F Boston, MA 02133 (617) 722-1494 August 1, 2022 Committee on Ordinance & Rules 4 of 9 Councilor Ryan stated I was ready to vote on this matter until this new information came forward. We were told the town would get $6 million per year in revenue from FlowerXpress. Are we still going to get $6 million per year? Nicole Taub stated the ability to collect the 3% still exists. It now becomes a matter of being able to substantiate the impact to support those costs as it relates to the impact fee allowable. I do think there are significant financial impacts to the community that would allow us to recover the maximum allowable under the law. Dru Ledbetter, CEO FlowerXpress stated when we started having conversations with the municipality we understood there was the excise tax and then the impact fee. Those are two different numbers. The excise tax is still a 3 percent tax that you can collect on our revenue sales. The impact fee is something that is scrutinized by the CCC as previously described and needs to be substantiated. That is why we didn’t even include it in our plan. We opted to create a separate fund owned by Braintree and managed by Braintree residents and stakeholders to ensure the funds would be available and it would be a percentage of our profits essentially. It would be whatever the town negotiated with our entity. Councilor Ryan stated we were told the town would get $6 million per year. Are we still going to get $6 million per year? Dru Ledbetter, CEO FlowerXpress stated the 3 percent we’ve been talking about is not something impacted by the legislative change. There is the 3 percent excise tax. We never considered the community impact fee at all. It doesn’t change our numbers, it is if you want to add an impact fee you can actually think about how you can substantiate it and create a number. What we had done initially was create a fund that wouldn’t be scrutinized by the legislation so we could give the town of Braintree additional funds in addition to our excise tax which is that $6million dollar figure we’ve been talking about. Now you have an additional fund managed by the town so it doesn't have to consider all those things that have been passed in the legislation. Councilor Ryan stated you are saying the $6 million per year has not changed. I would like to hear from our Town Solicitor that she can verify that has not changed. Nicole Taub stated there is nothing I saw in the review of the legislation that changes the municipalities ability to collect excise taxes from an operation and what makes this operation eligible for excise tax collection is the delivery component. Councilor Ryan stated I hear this law being passed will not affect our excise tax at all. The new law would affect the impact fee not the taxes. Dru Ledbetter, CEO FlowerXpress stated our fund and whatever the difference were to be, we would have our fund match the $6 million that we’ve been talking about. We would do our due diligence to make sure our numbers match that. August 1, 2022 Committee on Ordinance & Rules 5 of 9 Councilor Ryan stated what you are saying is if the excise tax doesn’t get to $6 million you say you’d have a fund that would pay us the $6million dollars. Dru Ledbetter, CEO FlowerXpress stated we would allocate a percentage of our profits and we would make sure that it would match at least a minimum of that. Councilor Ryan asked a minimum of $6 million. Dru Ledbetter stated correct. President Boericke stated the legislation just came out. Does this not mandate the gross sales? Nicole Taub stated the current language allows the community to negotiate a host community agreement that provides an impact fee for up to 3 percent of the gross sales without any substantiation. The pending legislation allows for the municipality to collect a maximum of 3 percent of the gross sales however that number has to be substantiated as an impact reasonably related to the operation of the establishment. Councilor Flaherty stated the timing of this legislation change complicates our position a lot. We are not just considering FlowerXpress, we are also considering opening the door for any other marijuana cultivator that might be interested in locating in Braintree. This seems it wouldn’t change the amount we would collect on property taxes because there would be an investment in the location and that would be collected in perpetuity. It sounds like it wouldn’t change excise taxes that would be collected. It does change the length of time for which we are able to have a host community agreement. It does change how much authority Braintree has to control precisely how we spend the money that is collected through the impact fee. The standard is it has to be reasonably related, which the Solicitor is telling us is not a very stringent standard. The revenue is really important to considering this. That is what the town is counting on from the establishment. Nicole Taub stated the excise tax revenue and the impact fee revenue are two separate buckets of money. It is the impact fee that would be modified potentially as a result of the pending legislation. Nothing has limited the municipality to collect excise tax revenue. The impact fee is above and beyond the tax revenue generated for municipality through the operation of any of these such establishments. Councilor Ryan asked FlowerXpress what if we didn’t vote on this tonight. How would that impact you. Dru Ledbetter stated we are a business entity. We have spent a lot of time and resources to convince your town we would be a good fit. We would have to circle around and decide which community would be a best fit in this area. The entire time we have never planned an impact fee because we knew this legislation was on the table. We never talked about impact fee because we understood it was under scrutiny. That is why we committed a percentage of our profits to a community fund led by Braintree residents at the beginning of this. President Boericke asked what defines delivery. Taking all of the product out of Braintree - that all of it counts as delivery. Nicole Taub stated where an entity chooses to deliver is not relevant. It is the fact that the point of the delivery is initiated here is what qualifies. August 1, 2022 Committee on Ordinance & Rules 6 of 9 Chairman Ringius asked for a short recess to gather some information at 6:36pm. Members resumed the meeting back to order at 6:55pm. Nicole Taub, Chief of Staff/Town Solicitor stated there are two categories of taxes imposed on marijuana retailers. The first are the state taxes. There is an excise tax of 10.75 percent plus a 6.25 percent sales tax that goes to the state. There is a local option tax if you accept the statute then the municipality can collect up to 3 percent of the revenue derived from the delivery operation from the establishment. Chairman Ringius stated this committee may give a recommendation to the full 9 member Town Council whether favorable or not. The Town Council public hearing is scheduled for tomorrow night. This would need 6 of the 9 members of the Council to approve it. There is nothing binding on what the subcommittee will do. The subcommittee has been charged with investigating and assembling various documentation and testimony to provide to the full Council. We received a letter from the Board of Health stating all members are opposed to this change. Julianna Melchionda, BOH member and resident spoke against this. In terms of our Public Safety personnel, our Braintree Fire Department through Chief James O’Brien submitted a letter indicating no objection to this change in ordinance. The Braintree Police Department through Mark Dubois gave us an opinion in essence given the well-regulated way that cannabis is not that he didn’t see necessarily any issues with the town welcoming a change in ordinance. We had various folks speak at our in- person hearing both for and against. Some folks see a benefit to an increase in revenue for the town. Others note the messaging here might be poor and perhaps there are other ways to create revenues. The Chairwoman of the School Committee did express her support for this. We did also receive an email from Kelly Cobb-Lemiere and member Psaros in support of this. The Planning Board did make a favorable recommendation for this with certain recommended changes to the proposed ordinance that have been submitted by the proponent. Chairman Ringius read into the record a memo dated July 19, 2022 from Assistant Town Solicitor Crystal Huff: Re: Citizen's Petition relative to Zoning Ordinance §135 Article XVII Chair Ringius and President Boericke: On March 10, 2022 a Citizen's Petition was filed by Braintree resident Mark Doucette for a Zoning Amendment making certain textual changes to Braintree's existing Zoning Ordinances. Specifically, the Citizen's Petition pertains to Section 135 Article XVII and amends the existing Zoning Ordinances relative to adult use or non-medical marijuana from a blanket prohibition, to a comprehensive ordinance allowing certain delineated non-retail marijuana uses, as well as providing guidance for Medical Marijuana Treatment Centers (MMTC). Broadly, the ordinance as proposed lays out and defines the marijuana uses to be allowed by Special Permit, prohibits Marijuana Retailers, sets forth submission requirements and restrictions for both Non-Retail Marijuana Establishments and MMTCs, establishes the findings required for granting a August 1, 2022 Committee on Ordinance & Rules 7 of 9 Special Permit and provides an amended Table of Principal Uses and a parking schedule. Both Non- Retail Marijuana Establishments and MMTCs will be allowed in the Highway Business and Commercial Districts, with Non-Retail Marijuana Establishments requiring a Special Permit and MMTC's as of right. The proposed ordinance was endorsed by the Planning Board on May 31, 2022 with three recommended textual revisions: 1. Add Section 135-1805n No Property containing a Marijuana Establishment shall be located within 100 Ft. of any property that contains a residential use. The 100 Ft. distance shall be measured from the Property line(s) in all cases. 2. Add Section 135-18050 No property containing a Marijuana Establishment shall be located within ½ Mile of any property that contains a Marijuana Establishment. The½ Mile distance shall be measured from the Property line(s) in all cases. 3. Modify Proposed Definition (by adding in the words Non-Retail before Marijuana Establishment) ** Proposed: NON-RETAIL MARIJUANA ESTABLISHMENT: A Marijuana Cultivator, Craft Marijuana Cooperative, Marijuana Product Manufacturer, Marijuana Microbusiness, Marijuana Delivery Operator, Marijuana Independent Testing Laboratory, Marijuana Research Facility, Marijuana Transporter, or any other type of licensed marijuana-related business, excluding marijuana retailers and social consumption establishments. **Any place in the text where MARIJUANA ESTABLISHMENT is used as a defined term shall be modified to include the words NON-RETAIL before it. The Planning Board's textual revision number 2 is not recommended. Revision number 2 would implement a half mile buffer between Non-Retail Marijuana Establishments. This buffer is not required by the statute or the regulations. Moreover, communities that have implemented such a buffer, notably the City of Boston and the City of Newton, have enacted the buffer relative to marijuana retailers only. In Boston, the half mile buffer has been impractical and difficult to implement equitably. Furthermore, the Cannabis Control Commission cautions against adopting overly restrictive zoning with respect to marijuana establishments. Here, given the context in Braintree, it is my professional opinion that such a half mile buffer would make the ordinance ''unreasonably impracticable" and would be violative of M.G.L. c. 94G and 935 CMR 500. Upon thorough legal review, the Town Solicitor's Office has made certain amendments to the Citizen's Petition, incorporating Planning Board recommended text revisions numbers 1 and 3, and revising certain sections of the proposed ordinance text to make it consistent with the enabling legislation as well as 935 CMR 500. The other two noteworthy revisions (the deletion of the marijuana definitional reference and the amendment on measurement of the 500 foot buffer to schools and daycares) to the Citizen Petition were made to bring the proposed ordinance into alignment with M.G.L. c. 94G and 935 CMR 500. Finally, the requirement that any facility operating under this Ordinance meet a "no Odor August 1, 2022 Committee on Ordinance & Rules 8 of 9 Standard" has been further clarified and independently noted in Section 135-1805(k) to further confirm this requirement. As set forth in the attached redline and attached clean copy, the proposed ordinance, as revised by the Town Solicitor's Office, is legally sufficient and is consistent with M.G.L. c. 94G and 935 CMR500. Please let me know if there are any further questions on this issue. Thank you, Crystal Huff Chairman Ringius stated it is clear to me it is time to move this forward from the subcommittee. I was surprised when I found out late last night the legislator had moved some things forward that was an unexpected development at least to me and I now have a 22 page document before me. Whenever I vote or address any matter that comes before me as a Councilor, I have to make sure I do my due diligence. I need to fully digest this 22 page document. I know there is a vote coming. I will abstain tonight but tomorrow if this moves forward I will be prepared to vote. I do think it is time to move this forward to the Council and further debate. Chairman Ringius asked if there is a motion Order 22 015. A Motion was made by Councilor Ryan for Order 22 015 Citizen Petition: Zoning Ordinance Text Amendments: Proposed Amended Article XVIII – Medical and Adult Use or Non-Medical Marijuana Establishments and related amendments to Section 135-601 and 135-806 or take up any action relative thereto as amended in accordance with Planning Board recommendations number 1 and number 3 dated July 19, 2022. Motion: by Councilor Ryan for Order 22 015 Second: by Councilor Flaherty Vote: For (2 – Flaherty, Ryan), Against (0), Absent (1 - Hume), Abstain (1 - Ringius) It was unanimously voted by Roll Call to adjourn the meeting at 7:14 p.m. Respectfully submitted, Susan M. Cimino, Clerk of the Council Documents provided for Meeting • 22 015 Citizen Petition: Zoning Ordinance Text Amendments: Proposed Amended Article XVIII – Medical and Adult Use or Non-Medical Marijuana Establishments and related amendments to Section 135-601 and 135-806 or take up any action relative thereto Recording of this meeting: https://www.youtube.com/watch?v=CD38ADGHRGo August 1, 2022 Committee on Ordinance & Rules 9 of 9