Everett, MA Zoning Ordinance

Everett City Zoning Code

SECTION 31

Registered Medical Marijuana Dispensaries Facilities.

(C0114-14; amended C0248-17; amended as part of October 2021 update)

General Provisions.

Purposes.

The purposes of this section are as follows:

To provide for the limited establishment of registered marijuana dispensaries (facilities) in appropriate places and under strict conditions in acknowledgment of the passage of Initiative Petition 11-11 (Question #3 on November 2012 state ballot), Chapter 369 of the Acts of 2012 and 105 CMR 725.000 Implementation of an Act for the Humanitarian Medical Use of Marijuana.

To minimize the adverse impacts of registered marijuana dispensaries on adjacent properties, residential neighborhoods, schools and other places where children congregate, local historic districts, and other land uses potentially incompatible with said facilities.

To regulate siting, design, placement, safety, monitoring, modification and removal of registered marijuana dispensaries.

To limit the overall number of registered marijuana dispensaries in the city to what is essential to serve the public convenience and necessity.

Applicability.

The cultivation, production, processing, assembly, packaging, retail or wholesale sale, trade, distribution or dispensing of marijuana for medical use is prohibited unless permitted as a registered marijuana dispensary in compliance with the provisions of this section.

No facility shall be established except in compliance with the provisions of this section.

Notwithstanding the provisions of 21 U.S.C. 812(c)(a)(c)(10), nothing in this ordinance shall be construed to supersede federal and state laws governing the sale and distribution of narcotic drugs.

If any provision of this section or in the application of any such provision to any person or circumstance shall be held invalid, the remainder of this section, to the extent it can be given effect, or the application of those provisions to persons or circumstances other than those to which it is held invalid, shall not be affected thereby, and to this end the provisions of this section are severable.

Marijuana Establishments Forbidden.

The operation of any marijuana establishment, as defined in M.G.L. c. 94G, § 1, including, without limitation, a marijuana cultivator, marijuana testing facility, marijuana product manufacturer, marijuana retailer or any other type of licensed marijuana-related business, is prohibited in all zoning districts of the city. This prohibition shall not apply to the sale, distribution or cultivation of marijuana for medical purposes licensed under Chapter 369 of the Acts of 2012.

Definitions.

Registered marijuana dispensary (facility) – shall mean any medical marijuana center, as defined under state law (as defined and in accordance with the provisions of Chapter 369 of the Acts of 2012 and 105 CMR 725.000 Implementation of an Act for the Humanitarian Medical Use of Marijuana) as a Massachusetts not-for-profit entity that acquires, cultivates, possesses, processes (including but not limited to the development of related products such as food, tinctures, aerosols, oils or and/or ointments), transfers, transports, sells, distributes, dispenses and/or administers marijuana, products containing marijuana, related supplies, and/or educational materials to qualifying patients and/or their personal caregivers, which is properly licensed and registered by the Massachusetts Department of Public Health pursuant to all applicable state laws and regulations.

Marijuana for medical use – Marijuana that is designed and restricted for use by, and for the benefit of, qualifying patients in the treatment of debilitating medical conditions in accordance with Chapter 369 of the Acts of 2012 and 105 CMR 725.000 Implementation of an Act for the Humanitarian Medical Use of Marijuana.

Marijuana – In accordance with Chapter 94C of the Massachusetts General Laws, all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; and resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil, or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil, or cake or the sterilized seed of the plant which is incapable of germination.

Special Permit.

Special Permit Granting Authority (SPGA).

Registered marijuana dispensaries shall be permitted only upon the grant of a special permit approved by the special permit granting authority (SPGA) after a public hearing and a finding that the uses are in accordance with the requirements set forth in this section.

For the purpose of this section, the special permit granting authority (“SPGA”) shall be the planning board of the city.

The SPGA may issue only for a site that has been expressly designated in the certificate of registration issued by the Massachusetts Department of Public Health.

A special permit for a registered marijuana dispensary shall be limited to one or more of the following uses that shall be prescribed by the SPGA:

Cultivation of marijuana for medical use (horticulture);

ii.

Processing and packaging of marijuana for medical use, including marijuana that is in the form of smoking materials, food products, oils, aerosols, ointments and other products;

iii.

Retail sale or distribution of marijuana for medical use to qualifying patients;

iv.

Wholesale sale of marijuana for medical use to other registered marijuana dispensary.

A special permit granted under this section shall have a term limited to the duration of the applicant’s ownership and use of the premises as a registered marijuana dispensary, and shall expire upon the expiration or termination of the applicant’s certificate of registration from the Massachusetts Department of Public Health whichever is sooner. A special permit may be transferred only with the approval of the SPGA in the form of an amendment to the special permit.

Any violation of the section shall be grounds for revocation of a special permit issued under this section.

Application Procedures.

The applicant shall file an application for a special permit together with the required filing fee with the city clerk. The application shall include a site plan and other materials as required by the SPGA. A copy of the application including the date and time filed, as certified by the city clerk, shall be filed forthwith with the SPGA. The procedures set forth in G.L. c. 40A §9 shall be followed.

Application Content.

The application shall include the following information below although the SPGA may, upon written request from the applicant, modify any of the following provided such modification will not negatively impact the approving authority’s ability to make an informed decision on the application, and the approving authority must state in writing their reasons for such modified requirements as part of their decision:

Completed application form with all fees in accordance with a printed fee schedule as established by the approving authority, and as may be amended from time to time.

Complete list of abutters certified by the city assessor, including printed address labels.

Certified statement of encumbrances from the applicant and property owner.

Any application for approval under this section shall be accompanied by fifteen (15) copies of a site plan drawings at 1"=40" scale or greater stamped by a Massachusetts registered professional engineer or other appropriate professional including one (1) original and ten (10) copies at 24"x36" dimension; fifteen (15) paper copies at 11"x17"; and one electronic copy of all drawings in PDF format. The plan drawings shall contain the following information:

Names and address of applicant, owner of property (if different) and project engineer.

ii.

Development project name, boundaries, north arrow, date scale.

iii.

Existing conditions on the lot(s), including the location and purposes of existing easements, if any.

iv.

Assessor’s parcel numbers of lot(s) subject to the application.

Existing and proposed building footprints, parking areas, loading areas, pedestrian ways, driveway openings, driveways, access and egress points, service areas.

(a)

Existing and proposed topographic features on the lot and adjoining areas within 50 feet of said lot at two-foot contours, including walks, fences, walls, planting areas, and greenbelts.

(b)

The amount(s) in sq. ft. of proposed buildings(s), impervious surface area and open space (natural and landscaped) of the lot.

(c)

Proposed names of new street(s), if any.

(d)

Data to determine location, direction, width and length of every street line, lot line, easement, zoning district and boundary line.

(e)

A description of proposed ownership and maintenance of all traveled ways internal to the site, including vehicular ways and sidewalks.

(f)

Indication of purpose for proposed easements, if any.

(g)

Existing and proposed recreation areas and other open spaces, including dimensions.

(h)

Water supply systems, storm drainage systems, utilities, sites for enclosed refuse containers.

(i)

Storm-water management plan in the form required by the General Ordinance and/or the Zoning Ordinance.

(j)

Proposed landscaping plan which shall include the species, size, number, location and characteristics of proposed planning, landscaping, buffers, and screening.

(k)

Proposed lighting plan which shall show:

(i)

The location and type of any outdoor lighting luminaires, including the height of the luminaire.

(ii)

The luminaire manufacturer’s specification data, including lumen output and photometric data showing cutoff angles.

(iii)

The type of lamp such as: metal halide, compact fluorescent, high-pressure sodium, etc.

(iv)

A photometric plan showing the intensity of illumination at ground level, expressed in foot-candles.

(l)

Where common open space and facilities are proposed as part of the project, plans and any necessary supporting documents shall be submitted showing the proposed location, size and landscaping plan for such open space and facilities.

(m)

Building elevation drawings at 1"=4’.

(n)

Renderings of the architectural design of the building(s) to be constructed and /or renovated, including identification of all major exterior materials, colors and finishes in sufficient detail for the approving authority to determine consistency with this section.

vi.

A statement of the applicant’s specific infrastructure improvements, with a proposed schedule for completion of such improvements, that are identified as required to support the facility.

vii.

A statement of proposed traffic mitigation, if any, which shall, at a minimum, include a plan to minimize traffic and safety impacts through such means as physical design and layout, staggered employee work schedules, promoting use of public transit or car-pooling, or other effective means. Measures shall be proposed as necessary to achieve the following post-development standards:

(a)

Level of service (LOS) at nearby intersections shall not be degraded more than one level as a result of traffic generated by the proposed facility, nor shall any intersections within the area of traffic effect be degraded below the level of D, except in exceptional circumstances as determined by the SPGA.

(b)

Adjacent streets shall not exceed design capacity at the peak hour as a result of traffic generated by the proposed facility.

(c)

Safety hazards shall not be created or increased as a result of traffic generated by the proposed facility.

viii.

In order to assist the SPGA to visualize a proposal for new construction, the applicant shall submit model, architectural rendering or alternative form of representation satisfactory to the SPGA, of existing conditions on the site, and of the proposed facility. The model shall include the proposed height and massing of the proposed building(s), as well as, existing or approved (but unconstructed) buildings located entirely within 300 feet of the proposed building(s). The model need not include full architectural detail but shall be scaled to accurately represent the existing and proposed developed conditions.

ix.

The name and address of each owner, manager, member, partner and employee of the facility, and a statement indicating whether the application complies with subsections 10 and 11 below.

The source of all marijuana that will be sold or distributed at the facility.

xi.

The source of all marijuana that will be cultivated, processed and/or packaged at the facility.

xii.

If the marijuana is to be cultivated, processed and/or packaged at the facility, the name of each purchaser of said marijuana.

xiii.

The applicant must be a non-profit organization. The applicant must submit a copy of its articles of organization, a current certificate of legal existence from the Secretary of the Commonwealth, and the most recent annual report.

xiv.

The applicant must submit copies of all licenses and permits issued by the Commonwealth of Massachusetts and any of its agencies for the facility.

xv.

The applicant must submit evidence of the applicant’s right to use the site for a facility, such as a deed, lease, purchase and sale agreement or other legally binding document

xvi.

If any owners, shareholders, partners, members, managers, directors, officers are entities rather than persons, the applicant must disclose the identity of the owners of such entities until the disclosure contains the names of individuals

xvii.

The applicant must submit proposed security measures for the facility including lighting and alarms, to ensure the safety of persons and to protect the premises from theft.

xviii.

The applicant must submit the resumes of the applicant and all members of the facility’s management.

xix.

Any project which produces more than five hundred (500) gallons per day of sewage flow when calculated in accordance with the flow estimates of CMR (Mass. Sewer System Extension and Connection Permit Program) Section 7-15 shall require an impact report to be filed with and approved by the building commissioner, the department of public works and the city engineer, which report shall indicate the total flow; the size, material and slope of all pipes; the ability of the system to carry the flow; locations of manholes and other appurtenances, and invert elevations.

Waivers.

The SPGA may within its reasonable discretion waive application or other procedural requirements upon a determination that such waivers are insubstantial and are consistent with the intent and purposes of this ordinance but may not waive any zoning requirement by means of this permitting process.

Reports from City Boards or Departments.

The SPGA shall transmit forthwith a copy of the application and plan(s) to other boards, departments, or committees as it deems necessary or appropriate, for their written reports. Any such entity to which applications are referred for review shall make such recommendation or submit such reports as they deem appropriate and shall send a copy thereof to the SPGA and to the applicant.

Public Hearing.

Special permits may be granted following a public hearing opened within sixty-five days after the filing of an application with the SPGA, a copy of which shall forthwith be given to the city clerk by the applicant.

The SPGA shall hold a public hearing for which notice has been given by publication or posting as provided in G.L. c. 40A §11 and by mailing to all the parties in interest and shall make its decision within ninety days following the close of the hearing. The time limits for public hearing and decision may be extended by written agreement between the applicant and the SPGA, with a copy filed in the office of the city clerk.

Filing of Decision.

The decision of the SPGA, together with the detailed reasons therefor, shall be filed with the city clerk and the building commissioner. A copy of the decision shall be mailed by the approving authority to the applicant and to the owner if other than the applicant certifying that a copy of the decision has been filed with the city clerk and that all plans referred to in the decision are on file with the SPGA. A notice of the decision shall be sent to parties in interest and to persons who requested a notice at the public hearing.

General Requirements and Conditions.

The SPGA may impose, in addition to any other conditions specified in this section, such additional conditions as it finds reasonable and appropriate to minimize impacts on abutters, safeguard the neighborhood, or otherwise serve the purposes of this section. Such conditions shall be stated in the special permit decision, and the applicant may be required to post bond or other security for compliance with said conditions in an amount satisfactory to the SPGA. Conditions of a special permit may include, but are not limited to the following:

A registered marijuana dispensary shall be located in a permanent building and not within a mobile facility.

No facility used a dispensary only shall have gross floor area in excess of two thousand five hundred (2,500) square feet. A facility used a dispensary only may be located in buildings that exceed two thousand five hundred (2,500) square feet of floor area, provided that the gross floor area of the facility shall not exceed two thousand five hundred (2,500) square feet.

No facility used as cultivation or processing facility shall have a gross floor area in excess of twenty-five thousand (25,000) square feet.

The hours of operation of facilities shall be set by the SPGA, but in no event shall said hours be open and/or operating between the hours of 9:00PM and 8:00AM.

No special permit for a facility shall be issued to a person who has been convicted of a felony or a violation of a state or federal statute prohibiting the unlawful possession, sale or distribution of narcotic drugs or prescription drugs. Further no special permit for a facility shall be issued to a non-profit corporation which an owner, shareholder, member, officer, manager, or employee has been convicted of a violation of a felony or a state or federal statute prohibiting the unlawful possession, sale or distribution of narcotic drugs or prescription drugs.

No special permit for a facility shall be issued to a person who has been convicted of a violation of Massachusetts General Laws Chapter 119, section 63 Inducing or Abetting Delinquency of Child or Massachusetts General Laws Chapter 272, section 28 Matter harmful to Minors, dissemination; possession; defenses. Further, no special permit for a facility shall be issued to a non-profit corporation in which the owner, shareholder, member, officer, manager or employee has been convicted of a violation of Chapter 119, section 63 M or Massachusetts General Laws Chapter 272, section 28.

No facility shall be located within 500 feet of a residential zoning district. The distance under this subsection shall be measured in a straight line from the nearest point of the property line of the uses and structures identified to the nearest point of the property line of a facility.

No facility shall be located within 1,000 feet of any of the following uses or structures:

Any school attended by children under the age of 18;

ii.

Any licensed child care facility;

iii.

Any drug or alcohol rehabilitation facility;

iv.

Any correctional facility, half-way house, or similar facility; or

Any other registered marijuana dispensary.

For the purposes of this subsection, the distance under this subsection shall be measured in a straight line from the nearest point of the property line of the uses and structures identified to the nearest point of the property line of a facility.

No facility shall be located within 500 feet of any playground, public athletic field, park, multi-use path, or other recreational facility. The distance under this subsection shall be measured in a straight line from the nearest point of the property line of the uses and structures identified to the nearest point of the property line of a facility.

The distance required under this section may be reduced by up to 25% upon determination by the SPGA that the facility would otherwise be effectively prohibited within the city, or the applicant demonstrates that the facility will employ adequate security measures to prevent diversion of marijuana to minors or to persons who are not qualifying patients pursuant to 105 CMR 725.

No smoking or burning marijuana-related products shall be permitted on the premises of a facility.

No facility shall be located inside a building containing residential units, including transient housing such as hotels, motels, dormitories or inside a movable or mobile structure.

Facilities shall not sell, distribute or dispense more than one ounce of dried cannabis per qualified patient or primary caregiver per visit to the facility. Facilities may not maintain or store more than ninety-nine (99) cannabis plants in up to one hundred (100) square feet of total garden canopy measured by the combined vegetative growth area. If a qualified patient or a primary caregiver has a doctor’s recommendation that this quantity does not meet the qualified patient’s medical needs, the qualified patient or the primary caregiver may possess and the facility may dispense an amount of dried cannabis and maintain a number cannabis plants consistent with those needs. Only the dried, mature processes flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of cannabis under the section.

Signage for facility shall be limited to one wall sign not to exceed ten (10) square feet in area, and one identifying sign not to exceed two (2) square feet in area; such signs shall not be directly illuminated. Any wall sign, or the identifying sign of the medical marijuana dispensary has no exterior wall sign, shall include the following language, “Only individuals with a registration card issued by the state Department of Public Health may obtain cannabis from medical marijuana dispensaries”. The required text shall be a minimum of two (2) inches in height.

All print and electronic advertisements for facilities, including but not limited to flyers, general advertising signs, and newspapers and magazine advertisements, shall include that following language. “Only individuals with a registration card issued by the state Department of Public Health may obtain cannabis from medical marijuana dispensaries”. Oral advertisements for medical cannabis dispensaries, including but not limited to radio and television advertisements shall include the same language.

Facilities shall provide the SPGA and all neighbors located within 500 feet of the establishment with the name, phone number and email address of an on-site community relations staff person to whom one can provide notice if there are operating problems associated with the establishment.

Facilities may sell or distribute cannabis only to individuals possessing a medical cannabis registration card issued by the state Department of Public Health.

All employees of the facility shall be at least 18 years of age.

No person who is not at least 18 years of age shall be permitted on the premises of a facility during the hours of operation unless that person is a qualified patient or caregiver with a valid registration card issued by the state Department of Public Health.

Dimensional requirements greater than the minimum required by this section.

Screening of parking areas or other parts of the premises from adjoining premises or from the street by specified walls, fences, plantings or other devices.

Modification of the exterior features or appearance of the structure.

Limitation of size, number of occupants, method and time of operation, and extent of facilities, or duration of the permit.

Regulation of off-street parking or loading. The SPGA may require that adequate parking be made available as a condition of the issuance of a special permit, and it may impose such reasonable conditions and safeguards as it deems appropriate.

Requirements for performance bonds or other security. Installation and certification of mechanical or other devices to limit present or potential hazard to human health, safety, or welfare of the city or of the environment resulting from smoke, odor, particulate matter, toxic matter, fire or explosive hazard, glare, noise, vibration or any other objectionable impact generated by any given use of land.

The police department will have full access to security camera data and any other security plan in order to make recommendation or requirements for security of the premises.

Required Findings for Approval.

Before granting a special permit, the SPGA, with due regard to the nature and condition of all adjacent structures and uses, shall find all of the following conditions to be fulfilled:

The proposal is in harmony with the general purpose and intent of this section and the purposes of the zoning district and it will not be detrimental to the health, safety or welfare of the neighborhood or the city.

The proposal is compatible with existing uses and development patterns in the neighborhood and will be harmonious with the visual character of the neighborhood in which it is proposed.

The proposal will not create a nuisance to the neighborhood due to impacts such as noise, dust, vibration, or lights.

The proposal will not create undue traffic congestion nor impair pedestrian safety and provides safe vehicular and pedestrian circulation within the site.

The proposal ensures adequate space onsite for loading and unloading of goods, products, materials, and equipment incidental to the normal operation of the establishment or use.

The proposal will not overload any public water, drainage or sewer system or any other municipal system to such an extent that the proposed use or any existing use will create significant hazards to health, safety, or the general welfare.

The proposal minimizes environmental impacts including erosion, siltation, detriment to ground and/or surface water levels, or detriment to ground or surface water quality.

The facility is fully permitted by all applicable agencies within the Commonwealth of Massachusetts and is in compliance with all applicable state laws and regulations.

In the case of retail sale or distribution, the facility is serving a measurable demand for marijuana for medical use that is currently unmet within the municipality

The applicant has not provided materially false documents of testimony.

The applicant has satisfied all of the conditions and requirements of subsections entitled General Requirements and Conditions for All Registered Marijuana Dispensaries and Special Permit Requirements.

10.

Decision.

As provided in G. L. c. 40A, §9, the grant of a special permit shall be by a four-fifths vote. The SPGA may approve, approve with conditions, or deny a special permit for the proposed development project. Failure to obtain the necessary vote constitutes denial of the special permit.

The SPGA’s findings, including the basis of such findings, shall be stated in a written decision of approval, conditional approval or denial of the special permit application. The written decision shall contain the name and address of the applicant, identification of the land affected and its ownership, and reference by date and title to the plans that were the subject of the decision.

The decision of the SPGA, together with the detailed reasons therefor, shall be filed with the city clerk and the building commissioner. A copy of the decision shall be mailed by the SPGA to the applicant and to the owner if other than the applicant certifying that a copy of the decision has been filed with the city clerk and that all plans referred to in the decision are on file with the SPGA. A notice of the decision shall be sent to parties in interest and to persons who requested a notice at the public hearing.

Outside Consultant and Review Fees.

General; Qualification of Consultant.

The SPGA may determine that the size, complexity or impact of a proposed facility warrants the services of one or more outside consultants, which may include, but are not limited to engineers, planners and/or lawyers, for the purpose of plan review, impact analysis, inspections, or other technical assistance in relation to the proposal. Such professional shall be selected and retained by the SPGA as provided in G.L. c44, Section 53G, with the reasonable costs for consultant services to be paid by the application. The minimum qualification of a consultant shall be either an educational degree in or related to the field at issue or three or more years of practice in the field at issue or a related field.

Selection of Consultant; Cost Estimate; Administrative Appeal.

The SPGA shall provide written notice to the applicant of the name of the selected consultant(s) at least seven calendar days prior to initiation of work by the consultant, unless this notice period is waived in writing by the applicant. The estimate of the cost of the services of such consultant shall be based upon the size and complexity of the project and the number of reviews and meetings likely to be required. The applicant may administratively appeal the selection of the consultant(s) to the city council by filing notice with the city clerk within five working days after the date of the SPGA’s notice of its consultant selection, the grounds for such an appeal being limited pursuant to G.L. c.44, Section 53G to the claim that the proposed consultant has a conflict of interest or does not possess the minimum required qualifications. The consultant shall not begin work until any appeal has been decided or thirty (30) calendar days have elapsed without a decision by the city council, in which case the selection of the SPGA shall become final. Required time limits for action by the SPGA upon an application shall be automatically extended by the duration of any administrative appeal.

Treatment of Consultant Funds.

The funds shall be deposited by the city treasurer into a special interest-bearing account as provided by G.L. c. 44, Section 53G. The funds in the special account, including accrued interest, shall be expended at the direction of the SPGA without further appropriation; provided such funds are expended only in connection with carrying out its responsibilities under this section. If the unexpended balance falls below 30% of the initial estimate, or the estimate is raised to pay for additional services deemed necessary by the SPGA, the account shall be restored to its original level or such lower level as determined to be reasonable and necessary by the SPGA. Upon completion of the project and final payment of the outside consultant(s), any unexpended balance, including accrued interest, shall be repaid to the applicant or the applicant’s successor in interest.

Reports.

At the completion of any project for which consultant fees were collected from an applicant, the SPGA shall provide a final report of the consultant fee account to the applicant. The city auditor shall submit annually a report of said special account to the SPGA, the mayor and for their review. This annual report shall be published in the Annual City Report and a copy shall be submitted by the city auditor to the state Director of the Bureau of Accounts.

Remedy.

Failure of an applicant to pay fees required hereunder (or any other fees required in other parts of this ordinance) shall be grounds for the SPGA to suspend or continue hearings or disapprove the application for lack of information.

Annual Reporting

Requirements.

Each facility permitted in accordance with this ordinance shall file an annual report to the SPGA and the city clerk no later than January 31, providing a copy of all current applicable state licenses for the facility and/or its owners and containing a statement under the pains and penalties of perjury that answers each of the following questions:

The name and address of each owner, manager, member, partner and employee of the facility, and a statement indicating whether the application complies with sections entitled General Requirements and Conditions for All Registered Marijuana Dispensary and Special Permit Requirements.

The source of all marijuana that was sold or distributed at the facility.

The source of all marijuana that was cultivated, processed and/or packaged at the facility.

The quantity of marijuana that was cultivated, processed and/or packaged at the facility.

If the marijuana was cultivated, processed and/or packaged at the facility, the name of each purchaser of said marijuana.