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MEMORANDUM
TO: Select Board
FROM: Peter Lombardi, Town Administrator
RE: Town Administrator Report
DATE: November 4, 2019
Retail Marijuana Establishment Update
Below is a synopsis of the status of the various potential "adult use” (so-called retail)
marijuana establishments currently under consideration:
Nature's Alternative (corner of Freemans Way and Long Pond Road) — fully executed
Host Community Agreement (HCA) in place; their project lead left in late July to start up
his own initiative (Mother Earth — see below); the Town was last contacted by their new
project lead on August 5, with no further indication regarding their plans moving
forward.
Mother Earth (Route 6A in Lemon Tree Village) — HCA negotiations will not begin until a
complete Special Permit application is submitted to the Planning Board; they have an
Letter of Intent with the owners of Lemon Tree Village for the same location as Ahuja
(now Brewster Botanicals — see below); an incomplete Staff Review Application was
submitted in early September, with no further communications since September 9; next
steps would include Staff Review, Community Outreach meeting, submission of
completed Special Permit application to Planning Board, negotiation of HCA with Select
Board, CCC licensing, etc.
Brewster Botanicals (Route 6A in Lemon Tree Village) — HCA negotiations will not begin
until a complete Special Permit application is submitted to the Planning Board; formerly
known as Ahuja, they changed ownership structure in late September and have a new
Letter of Intent with Lemon Tree Village ownership; Staff Review was initially completed
in late May; first Community Outreach meeting was held in mid-July; given change in
ownership, Cannabis Control Commission requires new Community Outreach meeting —
which is scheduled for Tuesday November 5 at 6PM at the Brewster Ladies Library.
Next steps would then include submission of completed Special Permit application to
Planning Board, negotiation of HCA with Select Board, CCC licensing, etc.
Paines Creek LLC (Route 6A between Dunkin Donuts and Luke's Liquors) — Staff Review
completed in mid-October; submitted Special Permit application to Planning Board last
week (hearing scheduled for Wednesday December 11); expected to submit variance
request to Zoning Board of Appeals, since their proposed location is not sited in a
standalone structure (next available meeting scheduled for Tuesday December 10);
next steps would include Community Outreach meeting, negotiation of HCA with Select
Board, CCC licensing, etc.
Haven Center (Route 6A by Orleans line) — fully executed HCA in place; full state
licensing approvals from Cannabis Control Commission in place; Staff Review completed
in late September; Planning Board meeting scheduled for Wednesday November 13.
Per the attached opinion from town counsel, since they filed an ANR (Approval Not
Required) in December 2017 (thereby freezing zoning at the time, prior to Town
Meeting approval of the Zoning Bylaw governing marijuana establishments), they will
have to go through Site Plan Review with the Planning Board, but not the Special
Permit process. In addition, per town counsel, since the Haven Center has applied as a
retail (not medical) use, when/if they complete their local permitting process, including
issuance of a building permit, they would then have secured the only (1) recreational
marijuana permit permitted under our Zoning Bylaw. Note that the other potential (2nd)
retail marijuana permit was only available to the Haven Center as a conversion from
medical to recreational (which is no longer their intent).
Dog Park Project
With bids coming in significantly higher than anticipated during the first solicitation for
this project early last spring, Town Administration and the Dog Park Committee worked
to reduce the scope of work, restructure the bid as line item instead of lump sum, and
reissue the bid at a more favorable time of year. Unfortunately, in spite of these
efforts, when the bids were opened a little over a week ago, they came in well above
our estimates again. Even though we have secured $225k in grant funding from the
Stanton Foundation for this project, that funding will only cover slightly more than half
of cost of the base bid based on the current scope of work. As a result, we have
(again) withdrawn our pending application to the Community Preservation Committee
seeking $50,300 in CPA funds for this project. Since these latest developments
occurred after the Special Town Meeting warrant went to print, we will have to amend
the CPA article on Town Meeting floor. The Dog Park Committee is in the process of
identifying potential next steps and plans to provide a more comprehensive status
update to the Select Board in December, at which time they will be seeking policy
direction.
Cyber Security Grant Award
Last week, we were notified that we have been selected to participate in the state's
new Cyber Security Awareness program. Managed by the Executive Office of
Technology Services and Security, this program will make cybersecurity training,
assessment, and simulation tools available to Town employees. This initiative will
complement other ongoing internal cybersecurity practices already in place.
Special Town Meeting Reminder
Special Town Meeting will be held Monday, November 18, 2019 at 6:OOPM at the Stony
Brook Elementary School. A copy of the warrant is available on the Town website and in
hard copy. A reminder that Town Meetings now begin one hour earlier, with check-in
starting at 5PM and the meeting beginning at 6PM. The Town will host an information
session on Wednesday November 6 at 6:30PM at Town Hall to provide an overview of
the warrant articles and to answer resident questions.
i
KPI
ILAW 101 Arch Street,Boston,MA 02110
Tel:617.556.0007 1 Fax:617.654.1735
771e Lader in Pitblic Sector Lriw wwwk-plaw.com
October 31, 2019 Katherine D. Laughman
klaughmen@k-plaw.com
CONFIDENTIAL -NOT A PUBLIC DOCUMENT
ATTORNEY-CLIENT PRIVILEGE
Planning Board
Brewster Town Hall
2198 Main Street
Brewster, MA 02631-3701
Re: Maven Center. Inc. - Application for Site Plan Approval
Dear Members of the Planning Board:
The Town Planner, Ms. Ryan Bennett, has requested that I provide you with an opinion
concerning the type of zoning approval required relative to the proposal of the Haven Center, Inc.
(the "Haven Center") to operate an adult use (recreational) Retail Marijuana Establishment
("Marijuana Retailer") at 4018 Main Street (the "Property") in the Town's Village Business ("V-B")
Zoning District. Ms. Bennett has additionally inquired whether issuance of site plan approval and a
building permit to the Haven Center would meet the Town's limit on recreational Marijuana
Retailers.
In my opinion, for the reasons explained below, the Haven Center's use of the Property is
protected by a zoning freeze pursuant to G.L. c.40A, §6 and is only subject to site plan approval, not
a discretionary special permit, for the proposed retail use. It is my further opinion that the issuance
of site plan approval and a building permit to the Haven Center for a Marijuana Retailer operation
would meet the one-establishment limitation on recreational Marijuana Retailers imposed by the
Town through its General and Zoning Bylaws.
1. Factual Background.
It is my understanding that on December 29, 2017, the Haven Center filed with the Planning
Board a Plan pursuant to G.L. c. 41, §81P (the"ANR Plan") for endorsement and provided notice of
that filing to the Town Clerk. The Planning Board endorsed the ANR Plan as not requiring approval
under the subdivision control law on January 17, 2018, in accordance with and as required by G.L. c.
41, §81P.
The version of the Town's Zoning Bylaw(the "Bylaw") in effect on December 29, 2017
permitted retail stores to locate within the V-B Zoning District as of right, subject to site plan
approval by the Planning Board as a"new commercial use"pursuant to §179-64.B of the Zoning
Bylaw. The Zoning Bylaw, as of that date, defined "Retail Store"as follows:
KP Law,P.C. Boston • Hyannis • Lenox • Northampton • Worcester
K NEft
e LAW
CONFIDENTIAL -NOT A PUBLIC DOCUMENT
AT'rORNEY-CLIENT PRIVILEGE
Planning Board
Town of Brewster
October 31, 2019
Page 2
A business usually selling one or a combination of two or more of the following: dry goods,
apparel and accessories, furniture and home furnishings, small wares,hardware, food for home
preparation, pharmaceuticals and medical supplies.
Subsequently, on March 12, 2018, Town Meeting adopted amendments to the Bylaw
requiring a special permit (in addition to site plan review) for a recreational Marijuana Retailer in the
V-B district and provided, in relevant part, that no recreational marijuana establishment"shall be
located within 500 feet, as measured from each lot line of the subject lot, of the following pre-
existing uses: a K-12 educational use; childcare center; public park; playground; or children's camp."
See Bylaw- Table I Use Regulations and §179-38.5A.
2. Legal Analysis
A. ANR Zoning Freeze Pursuant to G.L. c.40A, §6.
In my opinion, the Haven Center's proposed Marijuana Retailer must be permitted in
accordance with the Zoning Bylaw in effect as of December 29, 2017 when the Haven Center filed
an ANR Plan that was later endorsed by the Planning Board pursuant to G.L. c.41, §81P.
General Laws, c.40A, §6 provides in relevant part:
[W]hen a plan referred to in section eighty-one P of chapter forty-one has been submitted to a
planning board and written notice of such submission has been given to the city or town
clerk, the use of the land shown on such plan shall be governed by the applicable provisions
of the zoning by-law in effect at the time of the submission of such plan . . . and for a
period of three years from the date of endorsement by the planning board." (Emphasis
added).
As a result of the Haven Center's filing an ANR Plan prior to adoption of the March 12, 2018
Zoning Bylaw amendments governing marijuana establishments, the Haven Center activated a three-
year zoning freeze with respect to the Property. Thus, the Town must look to the Zoning Bylaw that
was in effect as of December 29, 2017 to determine the controlling zoning.
In my opinion, having reviewed the Zoning Bylaws in effect as of December 29, 2017, the
Haven Center's proposal to operate a Marijuana Retailer, selling marijuana and marijuana products
to the public, fits within the existing commercial use classification of"retail sales." The broad
definition of"retail sales" as a business "usually selling" commercial goods such as dry goods, food,
KP LAW
CONFIDENTIAL-NOT A PUBLIC DOCUMENT
ATTORNEY-CLIENT PRIVIlYGE
Planning Board
Town of Brewster
October 31, 2019
Page 3
and small wares would, in my opinion, be consistent with the Marijuana Retailer use proposed by the
Haven Center.
As of December 29, 2017, retail sales were allowed within the V-B district by right.
However, the Zoning Bylaw requires site plan approval for new commercial uses. See §179-64.B.
The later-enacted Zoning Bylaw, which requires a special permit for Marijuana Establishment uses,
including Marijuana Retailers, would not be applicable to the Haven Center until December 29,
2020. See e.g. Samson v. San-Land Dev. Corp., 17 Mass. App, Ct. 977 (1984) (ANR endorsement
protected land from subsequent zoning amendment prohibiting multi-family housing without a
special permit).
Thus, it is my opinion that the Planning Board should process and review the Haven Center's
site plan application in the regular course as it would any other application for a new commercial
retail sales operation in the V-B, Zoning District, and the Planning Board may not require the
submission of a special permit application for this use.
Although the three-year zoning freeze applies only to the use of the Property under the
Bylaw, Courts have indicated that such a freeze may also extend to dimensional regulations that
may, when applied to a proposed use, have the practical effect of prohibiting that use. See Bellows
Farms, Inc. v. Building Inspector of Acton' 364 Mass. 253 (1973) (property that benefited from a use
freeze was subject to a subsequent zoning change that"did not constitute or amount to a total or
virtual prohibition of the use of the locus" for a particular proposed use). Thus, it is my opinion that
to the extent the 500-foot buffer for Recreational Marijuana Establishments from any"pre-existing
uses: a K-12 educational use; childcare center; public park; playground; or children's camp" could
potentially be triggered as a result of the Haven Center's Property location in relation to other pre-
existing uses,the Town may not enforce such a buffer requirement on the Haven Center's
application, for anything other than the statutorily required 500-feet separation from K-12 public or
private schools, as doing so would have the practical effect of prohibiting the Haven Center's
proposed retail use, which is protected by the zoning freeze.
B. Appeal of Site Plan Approval
Ms. Bennet has also asked that I clarify whether there is a right of appeal from the Planning
Board's site plan approval decision. The Town's Zoning Bylaw does not provide for a direct appeal
to court of a site plan approval decision. Thus, in such situations, the courts have generally found
that appeals of site plan approval must be initiated as an action for zoning enforcement through the
appeal of a building permit issued in reliance upon that site plan approval. See Default v.
Millennium.Power Partners. L.P., 49 Mass App. Ct. 137, 141-142 (2000).
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CONFIDENTIAL-NOT A PUBLIC DOCUMENT
ATTORNEY-CLIENT PRIVILEGE
Planning Board
Town of Brewster
October 31, 2019
Page 4
C. Limitation on Number of Marijuana Retailers
Pursuant to the Town's Zoning Bylaw, §179-38.3 and General Bylaw §59-2,the number of
recreational Marijuana Retailers within the Town is limited to one establishment. However, in order
to comply with the requirements of G.L. c.94G, §3 with respect to specific protections accorded
Registered Medical Dispensaries, the Town specifically exempted Medical Marijuana Dispensaries,
licensed or registered not later than July 1, 2017 and engaged in the retail sales of marijuana or
marijuana products, from this limitation for purposes of converting to a recreational Marijuana
Retailer.
At.the time these Bylaws were enacted, it was known that the Haven Center had qualified for
the G.L. c.94G, §3 protections by receiving a Provisional Certificate of Registration from the
Department of Public Health prior to July 1, 2017 and thus could not be prohibited under the Town's
Bylaws from converting its operation to a recreational Marijuana Retailer. The Bylaw's Medical
Marijuana Dispensary exemption from the one-establishment limit was intended to address the
situation in which a recreational marijuana operator other than the Haven Center potentially secured
special permit approval for a recreational Marijuana Retailer prior to the Haven Center. However, in
my opinion, if the Haven Center is the first applicant to receive local approval through the issuance
of site plan approval and a building permit for its Marijuana Retailer operation within the Town, the
one retail establishment limitation would be met and the Town would not be required to allow any
additional Marijuana Retailers to locate within the Town.
Please do not hesitate to contact me with any further questions concerning this matter.
Very truly your,
Katherine D. Laughman
KDL/man
cc: Town Administrator
Select Board
700829/BREW/0014