MMA letter to senators identifies municipal concerns with recreational marijuana bill

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Dear Senator,
 
On behalf of the cities and towns across the Commonwealth, the Massachusetts Municipal Association wishes to express our concerns with S. 2090, an Act to Ensure the Public Health and Safety of Patient and Consumer Access to Medical and Adult Use of Marijuana in the Commonwealth, and to offer comments on several of the amendments which have an impact on cities and towns.
 
With 111 amendments before you today, there are many important policy proposals that would impact cities and towns. As you take action on all of these matters, we urgently and respectfully ask you to support the interests of communities. Please act to protect the role of local legislative bodies on zoning and other local decisions, and please avoid making unnecessary and harmful changes to the host community agreement provisions.
 
Cities and towns have a responsibility to ensure that the new law is implemented locally in a manner that protects the public interest, including addressing public health and public safety concerns, and ensuring that the roll-out does not negatively impact residents, other businesses, neighborhoods, economic development plans, or other important considerations. As such, municipal officials are working hard and scrambling to get information and plan their own policy responses. This will be very difficult in the short term, as there are many unanswered questions and many significant drafting deficiencies in the new law.
 
It is important to emphasize that Question 4 prevailed and the issue of whether or not to legalize the recreational use of marijuana has been settled. Yet it is also clear that the new law has several large drafting flaws that require fixing in order to prevent negative outcomes, as well as clarification to ensure that the stated intentions of the law are met. Just as the Legislature and governor acted in 1981 to amend Proposition 2½ to make it workable, we believe it is both appropriate and necessary for lawmakers to take action to address the shortcomings in the Regulation and Taxation of Marijuana Act. Doing so would benefit the public interest and every community.
 
Decisions by the Local Legislative Body
 
The MMA supports amendment 12, sponsored by Senators Gobi and O’Connor, which would normalize the system of local control by restoring basic decision-making and zoning authority to the local legislative body. Restoring local decision-making authority does not undermine the vote of the people last November on the statewide ballot question, Question 4. Rather, passage of this amendment would benefit all citizens by bringing much-needed order and clarity to the new law. There has been no rush by cities and towns to “opt out” of the law. Our own analysis shows that fewer than 30 cities and towns have voted to “opt out,” mostly where voters rejected Question 4. About 80 cities and towns have taken a measured approach to the new law and adopted a local moratorium. This allows local elected officials the time to take the pulse of local citizens on zoning and siting issues, and provides cities and towns with adequate time to review expected changes to the law and the regulations that are scheduled to be adopted.
 
Under amendment 12, cities and towns would be deemed to have accepted the law unless there is a local vote to opt out. The MMA had earlier requested an “opt in” provision, but we support the process laid out in this amendment. The opt-out decision would follow the full and open decision-making process used at the local level for all major decisions made by local elected officials, which in this case would include either a decision to opt out or a decision to limit the number of pot shops that can be located in a community. In a city, the vote would be made by the City Council with the approval of the Mayor. In a town, opting out would require an affirmative vote of the Board of Selectman and Town Meeting. The key step here is that the approval of the local legislative body would be required. The opponents of this measure have repeatedly mischaracterized the deeply participatory nature of these local votes. These would not be decisions made by one or a handful of people. In cities, these decisions would be made by locally elected representatives of the people who are directly accountable. In towns, decisions would be made by Town Meeting. For the 259 towns with an Open Town Meeting format, the legislative body includes all registered voters. For the 36 towns with Representative Town Meeting, the legislative body includes approximately 150 to 250 residents who have been elected on a precinct basis.
 
The stated intent of the 2016 Marijuana Act was to “normalize” the marijuana industry; yet virtually no other industry is able to bypass the local decision-making bodies when seeking approval to locate in a city or town. The language of this Act makes it impossible for city councils or Town Meetings to make these zoning decisions, as they are able to do with any other business. Instead, communities are only allowed to act if they pursue the convoluted and unclear process of placing a question on the ballot for voters to approve at their next state or local election in conjunction with passing a parallel bylaw. Under Massachusetts law, decisions on zoning and commercial activity are inherent in the duties of Town Meetings, town councils and city councils. Amendment 12 solves the unworkable aspects of the ballot question by using the legal framework that exists for all other aspects of zoning and commercial regulation – approval by the local legislative body.
 
New England local government is the gold standard in terms of local American democracy. It does not make sense to create a special and unique exception in the law to allow the commercial marijuana industry to circumvent the municipal decision-making process that shapes all other business activity.
 
The Local Election Cycle
 
The marijuana ballot question was written without any real understanding of either the municipal election cycle, or the fact that local legislative bodies are responsible for essential zoning decisions. Question 4 would require a referendum in order for a community to limit the number of commercial pot shops or ban commercial sales, but this language is deeply flawed. First, 85 percent of communities will not hold their next municipal election until next year, well after the Cannabis Control Commission begins accepting applications from commercial vendors, which is a major problem because communities cannot retroactively regulate or zone. The remaining 15 percent of communities are cities, which hold municipal elections every two years, and their next election in November will come before the CCC has completed its regulatory process. Further, in many communities there is no process for placing such a referendum on the ballot. In other words, the municipal election calendar sets the decision-making dates either too early or too late to be effective, and the language in the question is inconsistent with municipal election processes.
 
Inadequate Revenues
 
Another major concern is the rock-bottom excise revenue that would be generated by the ballot question, where it is again clear that the marijuana industry learned a lesson from earlier experiences in Colorado and Washington state. In addition to state sales taxes, the Colorado law imposes a 25 percent tax on marijuana, and Coloradan cities and towns can enact their own local sales taxes of up to 8 percent. The state of Washington imposes a 37 percent excise tax, and cities and towns can collect their own local sales tax on top of that. Here in Massachusetts, the commercial interests behind Question 4 set the state marijuana excise tax at just 3.75 percent, and capped the municipal local-option marijuana excise tax at only 2 percent. These would be among the very lowest rates in the nation.
 
Given the significant new burden of regulating and monitoring a new commercial industry (which will deal in a controlled substance that is still illegal under federal law), the state and local revenue rates are unreasonably low and damaging to public budgets. The state excise will clearly fall short, and we urge you to increase the state tax so that, at a minimum, resources will be available to provide statewide training of police officers and fund the CCC and other state agency needs. Further, cities and towns will have new responsibilities in areas of public safety, public health, zoning, permitting and licensing. At 2 percent, the local revenue in the Marijuana Act will fall far short of local needs.
 
We respectfully ask you to support Amendment 15, filed by Senators Moore and O’Connor, which would increase the local rate to six per cent, to bring revenue rates here in the Commonwealth closer to the successful models in Colorado and Washington and other “firstwave” legalization states.
 
Host Community Agreements
 
Please oppose Amendment 78, which would severely impact the ability of cities and towns to negotiate successful host community agreements with marijuana businesses seeking to open in their communities. Cities and towns and marijuana businesses are perfectly able to negotiate and enter into mutually beneficial agreements without the proposed limitations. These payments are essential in order to ensure that local taxpayers do not bear additional burdens, and this issue affects communities across the state.
 
Summary
 
Cities and towns have a responsibility to implement the new law in a manner that protects the public interest, yet communities will not be able to fulfill this responsibility unless the significant flaws detailed in this letter are addressed. Just as the Legislature and governor acted in 1981 to amend Proposition 2½ to make it workable, we respectfully ask the Commonwealth to take action to address the shortcomings in the Marijuana Act. Doing so would benefit the public interest and every community.
 
Importantly, the commercial marijuana industry should recognize that fixing these flaws in the question will actually facilitate a swifter growth in the marketplace, and will ensure a robust and fair roll-out process. The flaws and lack of clarity in the existing language is bogging down the zoning process, and is forcing a growing number of communities to adopt moratoriums.
 
Thank you very much for your consideration. If you have any questions or wish to receive additional information, please do not hesitate to have your offices contact me or MMA Legislative Analyst David Lakeman at (617) 426-7272 at any time.
 
Sincerely,
 
Geoffrey C. Beckwith
Executive Director & CEO