Board takes second cautious step toward medical-marijuana dispensary

UPDATED, Feb. 24: Selectmen took another tentative step toward approving the town's first medical-marijuana dispensary and learned that a second outlet has expressed interest. Chairman Kevin Greeley, who noted a possible new applicant, offered no details.

Board of Selectmen logo, Jan. 23, 2013

Medical-marijuana imageSecond applicant mentioned.

The focus Monday, Feb. 22, was on the request by Massachusetts Patient Foundation of Needham, which sought the backing of town officials and received it. The board voted, 4-0, for a statement of support or nonopposition. Diane Mahon, at a family event, was absent, as she was for the 3-1 vote last October.

Poll: Do you want a dispensary?

"I want to support this," Greeley said, adding he is not necessarily keen on taking the next key step, the host community agreement.

Discussion among officials and the proponents, who seek to establish the despensary around the corner from Town Hall, at 11 Water St., revealed the following:

-- While total revenue estimates remain sketchy, the town would get 3 percent, or an estimated $300,000 to $500,000 annually; and

-- The foundation says it has secured for cultivation of marijuana 20 acres in Fitchburg and another area in Holyoke;

Continuing to be cautious, as he was in October, Selectman Joseph Curro Jr. said he has "grave questions" and noted a "mismatch" between memos from Town Counsel Doug Heim and from Chief Fred Ryan (see both below).

Cost implications

In essence, looking at just the cost implications, the low amount of estimated revenue would be insufficient to pay for costs Ryan expects, but the higher estimate would cover those costs.

Selectmen Dan Dunn, who in October expessed tentative support for the dispensary, asked: "How would it work?"

In brief, Town Manager Adam Chapdelaine said the applicant needs from the board to get a permit from the state Department if Public Health.

Satisfied by the process, Dunn moved to support a statement of nonopposition.

Board member Steve Byrne seconded. He cited 2012 votes in town and statewide supporting medical marijuana. He said he thought the option is needed in terms of pain management.

Curro still said he felt uncomfortable with this, though he said he was inclined to support but wanted to hear from the town Board of Health.

Christine Bongiorno, director of Health and Human Services, introduced Health Compliance Officer James Feeney, the lead person in the department working on related regulations.

Basically, he said local rules, aired at a hearing Feb. 3, mirror state regulations. They address such issues as assuring that the marijuana is for medicinal purposes and that a dispensary not be near schools or parks.

Following discussion the board voted, 4-0, and a contingent from the Massachusetts Patient Foundation, including a rabbi, filed out.

Based on discussions in October, such a facility, if approved, could be two years away.

News in Cambridge

Meanwhile, next door in Cambridge, YourArlington partner Cambridge Day reports a change to zoning that would allow a medical marijuana dispensary near Harvard Square deserves examination, city councilors decided Monday, Fen. 22, voting to send it on to their Ordinance Committee.

Not everyone was aboard – there was a lone voice of dissent during public comment and two councilors said they were "uncomfortable" with creating a medical marijuana district between Harvard and Central squares when there were already districts for such dispensaries in the Alewife and NorthPoint neighborhoods.

But even those objections seemed only to broaden the potential for medical marijuana sales in Cambridge, rather than continue limiting them to the two existing districts – where no dispensary has been able to open since their creation in 2013. Medical marijuana was legalized statewide in November 2012.

Read the whole story here >>

Nov. 16, 2015, memo from Chief Frederick Ryan

As town officials contemplate the policy issues surrounding the potential presence of a medical marijuana dispensary in the community, I would like to seek this opportunity to weigh in on matters relating to public safety and quality of life issues likely to present themselves should such a dispensary be authorized.

Pre-Existing Resource Challenges

More than a decade ago the Arlington Board of Selectman commissioned a management study of the police department. The resulting report and recommendations documented the fact that the police department was severely understaffed when compared to the service demand of the community and as compared to other similarly situated communities in the Commonwealth.
While all of the consultant's recommendations relative to internal management controls/practices were implemented by police department staff, the town chose not to fund the recommendations of the consultant relative to police staffing levels.

Since that time, the demand on police services has increased exponentially. For example, the community has authorized dozens of new liquor licenses (now a total of 53) as well as liquor stores, passed several new bylaws (noise abatement, door to door solicitation, traffic control, etc.), annual calls for service continue to climb, the complexity of criminal investigations/cyber crime increases daily, and the demand for traffic control/safety following a series of traffic fatalities, is at an all-time high.

More recently, the police department, along with our public health counterparts, have been faced with an opiate epidemic in the community that has resulted in twice the number of overdoses (fatal & non-fatal) in CY2015 as compared to CY2014. The police resources committed to drug control, education, and prevention in response to the presence of illegal narcotics and associated crime in the community has caused a significant strain on police resources.

Despite these and many other challenges, the police department remains at the same staffing level as when the management study was originally commissioned.

Police Service Demand

There is no question that the presence of a marijuana dispensary in the community will add demand to the community's police capacity, a capacity that is already stretched to the limit. Other communities with dispensaries have experienced a situation where the presence of a dispensary has drawn a large volume of persons from outside of the community for the sole purpose of purchasing marijuana.

We would expect, at a minimum, to experience an increase in traffic/parking violations, burglary, loitering, disturbances, public consumption of alcohol/marijuana, and other calls for service.


Building trust and legitimacy between the citizenry and business people in the community is among our highest priorities as a police department. Managing calls for service to the neighborhood of a Medical Marijuana dispensary on a reactive basis would likely erode such trust. On the other hand, having regularly assigned foot patrol officers to the major retail areas in Arlington during daytime and evening hours would result in relationship building among business people and residents that would result in more proactive problem solving to prevent any adverse impacts that may be caused by the dispensary.

In order to deploy such foot patrols we would need to add four (4) Patrol Officers to the department at an annual operating cost of about $400,000; further, I would recommend that we consider fully funding the Arlington Youth Health and Safety Coalition staff and related prevention activities so as to enhance our substance abuse prevention posture in the community.

Any public endorsement by me would hinge upon a mitigation plan that included such funding.

Feb. 18, 2016, memo from Town Counsel Douglas W. Heim (text without supporting data)

Members of the Board, it is my understanding that the Massachusetts Patient Foundation, Inc., a registered non-profit incorporated in Massachusetts requests a letter of support or alliteratively, a letter of non-opposition, from the Board of Selectmen with respect to their intention to site and operate a Registered Marijuana Dispensary ("RMD") within the Town of Arlington. Accordingly, while the Board will recall that representatives of the Patient Foundation ("MPF") presented the Board with materials supporting their proposal at the October 19, 2015 Board meeting, and the legal parameters of RMD's were discussed, I write to provide you further information to aide your examination of MPH's request.

Legal Background

As the Board may recall, by November 2012 state-wide ballot question, the voters of the Commonwealth approved medical marijuana possession and use by certain qualified patients. The ensuing law, Chapter 369 of the Acts of 2012, and Department of Public Health ("DPH") regulations, 105 CMR 725, allow individuals with written appropriate medical authorization to obtain, possess, and use up to a 60-day supply of marijuana. Absent specific conditions such as "hardship" as defined by DPH regulations, the State contemplates that up to 35 dispensaries (between 1 and 5 in each county of the Commonwealth) will be licensed to sell medical marijuana to these registered medical users. DPH developed a robust licensing process for RMDs, in which obtaining a letter of non-opposition or support from local executive bodies is a pre-requisite to eligibility. Accordingly, the Board’s support or non-opposition to MPH’s request is a necessary, but not sufficient step for MPH to open an RMD at their proposed location.

Local Laws, DPH Regulations & Siting Matters

In sum, the key points to bear in mind in terms of Arlington's local authority over RMDs and marijuana use are the following:

• Arlington may not institute a blanket prohibition on either the use of medical marijuana, 01’ on the siting and operation of any RMDs. It may exercise some control over the location of RMDs, which it has done by limiting RMDs to special permits in B3 and B5 zoned areas. To the extent Arlington does not have a dispensary, it could provide some grounds for home cultivation.

• One means of qualifying for "hardship cultivation" under 105 CMR 725.035(3) is the "[lack of an RMD within a reasonable distance of the patient's residence and lack of an RMP that will deliver marijuana to the patient's or personal caregiver's primary address."

At this juncture, the nearest retail RMD in operation is in Brookline, with additional operating retail RMDs in Ayer, Brockton, Lowell, Northampton and Salem. To my knowledge, Boston has at least one proposed RMD presently working with DPH on its license.

As such, it is possible that some registered patient Arlington residents could currently claim hardship cultivation depending on their circumstances, though that likelihood would decrease if immediately neighboring communities sited an RMD.

• Neither Chapter 369 of the Acts of 2012 or DPH regulations permit the public use of marijuana, which constitutes a violation of Title VIII, Article 7 of the Town Bylaws and is punishable by a $300 fine.

• The Board of Health has the authority, but is not mandated, to issue reasonable regulations with respect to RMDs consistent with state law. It is my understanding that the Board of Health has drafted regulations and the Director of Health and Human Services will be available to discuss such regulations with you.

• Absent local regulations altering the "buffer zone" with respect to siting, DPH requires RMDs not be "sited within a radius of five hundred feet of a school, daycare center, or any facility in which children commonly congregate. The 500 foot distance under this section is measured in a straight line from the nearest point of the facility in question to the nearest point of the proposed RMD." 105 CMR 72S.1l0(A)(14).

To date, DPH has interpreted this requirement to include facilities dedicated to the use of children such as. dance schools or gymnastics schools, but not other locations where children may frequently congregate but not in structured, heavily scheduled fashion.

For further information, please see the August 2015 "Guidance for Municipalities Regarding the Medical Use of Marijuana" from DPH attached hereto as reference material. It is my understanding that at present there are no schools, daycares or other qualifying facilities operating within 500 feet of the proposed site.

MPH-Arlington and Community Benefit Agreement

As the Board will recall, for the purposes of considering MPH's request, the Town negotiated a draft contingent Community Benefit Agreement with MPH, outlining certain payments to the Town in the event the Board approves a letter of non-opposition or support for an RMD. These payments are intended to assist the Town in addressing public health, safety, or other concerns which may arise due to the operation of an RMD. Accordingly, such payments are only made upon the RMD obtaining all the necessary certificates, licenses and permits from DPH and other appropriate entities necessary for MPH to operate.

While there are still many uncertainties in the law with respect to the relationship and conflicts between federal and state laws on medical marijuana, the agreement would first and foremost be subject to interpretation under Massachusetts law. As such, the validity and enforceability of any Community Benefit Agreement presents low risk to the Town.

Substantively, the Benefit Agreement is structured very similarly to agreements in other communities where RMDs have opened, and contains competitive terms with respect to the payments to be made to the Town. 

Future Regulation and Recreational Marijuana Initiatives

At present, a single ballot initiative with respect to legalizing recreational marijuana in the Commonwealth is to be inserted for voters' consideration on the 2016 state-wide ballot. "The Initiative Petition for a Law Relative to the Regulation and Taxation of Marijuana," proposes to regulate marijuana on terms similar to the regulation of alcohol in Massachusetts, including establishing a "Cannabis Control Commission" very similar to the Alcoholic Beverage Control Commission ("ABCC"), includes a proposed state tax rate and local tax option, which would not apply to medical marijuana sales. The proposal, if successful, would similarly permit local regulation of marijuana sales consistent with state law. It would also give modest preference in licensing to RMDs by allowing them to apply for licensure before prospective purveyors without an existing license to sell medical marijuana to registered patients. 

Cambridge Day, Feb. 24, 2016: Debate over medical marijuana facility nudges officials toward citywide zoning

Oct. 21, 2015: Board seeks more specifics about proposed medical-marijuana dispensary

Globe, Aug. 5, 2015: Norwood selectmen not opposed to marijuana dispensary bid

This report was published Tuesday, Feb. 23, 2016, and updated Feb. 24, to add news links, copy.