In August, the Redevelopment Board heard two hours of testimony about a medical-marijuana dispensary proposed for Arlington Center, and members voted to hear more, so they put off matters three weeks. Now, uncertainty about changing state guidelines, has led town officials to delay consideration two more months.
Confusion about buffer zones cited
The board’s Sept. 12 hearing was postponed to Nov. 7 “with the consent and agreement of the applicant,” the Massachusetts Patient Foundation, which is seeking a special permit to allow a dispensary at 11 Water St. What’s behind the substantial delay?
A lengthy memo from Town Counsel Doug Heim explains. Here’s the story, boiled down from the full memo.
The tale begins with questions raised at the Aug. 22 hearing by Chris Loreti, a former member of the Redevelopment Board. He asked that the board not vote until the town Board of Health holds its own hearing on the matter and until issues regarding the 500-foot buffer zone are resolved. He said a dispensary cannot be sited within 500 feet of places “where children congregate.”
Initially, town counsel disagreed with both of Loreti’s opinions and supported the board’s process, as YourArlington reported Aug. 23.
Order of hearings
Heim’s Sept. 1 memo provides much more detailed support for the order of the hearings: The board may proceed so long as any grant of a special permit for the marijuana dispensary is provisional. “It may be valuable for the [Redevelopment Board] and the [Board of Health] to share their respective expertise and perspectives during each of the permitting processes, but it is not required,” he wrote.
Regarding the buffer zone, as recently as Aug. 26, Heim based his view of the matter on state Department of Health guidelines, which he had referred to in a memo last February, which was reported here >>
Only days later, matters turned murky.
After outlining the history of what is permitted within the 500-foot buffer, Heim discusses local siting requirements and refers to an August 2016 court decision in Brookline.
The judge in that case cited a state Department of Public Health (DPH) update to its guidance for municipalities: “Municipalities may set their own buffer zone, but if they do not, the default buffer zone will be the 500-foot distance described in the [DPH Siting Regulation.]”
That seems clear enough, but then some hitches arose.
‘Different position’
Heim writes: “Curiously however, this Office confirmed late yesterday [Aug. 31] that DPH now holds a wholly different position. An ‘Updated August 2016’ Guidance for municipalities made a subtle, but important change to their interpretation of their regulations.
“The new guidance provides more ambiguous language, asserting ‘[m]unicipalities may set their own local siting requirements, but if they do not, the default buffer zone will be the 500-foot distance described in the Regulations.’
“It is critical to underscore that the regulation, which does not define ‘local siting requirements,’ did not change. Only DPH’s interpretation of the regulation, which is apparently the opposite of the Land Court’s contemporaneous decision and prior guidance documents, was altered.”
Got that? If not, Heim adds: “DPH staff advised the undersigned that the mere act of zoning an [medical-marijuana dispensary] in certain districts could be construed as a ‘local siting requirement.’ As such, in their view, it is likely that there is no buffer zone in Arlington, even though Town Meeting and local boards … acted with the stated and well-founded belief that there is under DPH’s regulations.”
‘Abrupt change’
Town counsel writes that “this abrupt change in Arlington’s position and conflicting analyses by DPH and the Land Court merits postponing the previously scheduled continuation of the hearing at issue.” Thus, the issue is on hold until Nov. 7.
While this gets sorted out, it is worth considering these points made in the memo:
as been very responsive to this office, Arlington residents and [dispensary] applicants throughout communities’ first considerations of proposed dispensaries. Moreover, DPH conducted proactive, substantial efforts to educate communities throughout the Commonwealth about their implementation of medical marijuana law.”
Full Sept. 1, 2016, memo from Town Counsel Heim recommending delay
Aug. 23, 2016: Public questions put off hearing on medical-marijuana dispensary three weeks
April 13, 2016: Selectmen take 3rd step toward dispensary after 7 object
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 explanatory news summary was published Sunday, Sept. 11, 2016.
