City of Beverly, MA Article XVII Sale and Distribution of Recreational Marijuana

[Added 6-19-2017 by Ord. No. 386; amended 1-7-2019 by Ord. No. 213A]

§ 300-122 Marijuana establishments.

A. Purpose. In addition to the general purposes of the City of Beverly Zoning Ordinances, the purpose of this article is to ensure the responsible development and location of state-licensed marijuana establishments in the City of Beverly in accordance with applicable state and local laws and regulations, to provide standards for the placement and operation of marijuana establishments that ensure and protect the public health, safety, and welfare, to mitigate and/or limit any undue impact on adjacent or neighboring uses due to the geographic location of any marijuana establishment, to promote geographic distribution, and to mitigate and/or limit any undue impact on the natural environment of the operation of any and all marijuana establishments as defined herein.

B. Applicability. This article applies to all marijuana establishments.

(1) All marijuana establishments shall require a special permit from the Zoning Board of Appeals in accordance with the requirements of this article and the general criteria for granting a special permit contained in § 300-91 of this chapter.

(2) Marijuana establishments subject to the Zoning Ordinance of the City of Beverly, § 300-98, Site plan review of commercial, industrial and multifamily developments, shall require site plan review by the Planning Board in accordance with the aforementioned section, in addition to meeting the requirements of this section.

(3) Use restrictions for marijuana establishments are established in the Beverly Code of Ordinances, Chapter 300, Article VII, District Regulations.

C. General provisions.

(1) It shall be unlawful for any person or entity to operate a marijuana establishment without both a valid final license issued by the state licensing authority under MGL c. 94G and a special permit from the City of Beverly Zoning Board of Appeals.

(2) Any marijuana establishment that obtains a special permit shall thereafter annually provide to the Director of Municipal Inspections a copy of its CCC license demonstrating that the marijuana establishment continues to hold a current, valid license issued by the CCC. Said license shall be provided within 14 days of receipt of such.

(3) In the event that more than one marijuana establishment is located on the same premises, each marijuana establishment shall require a special permit from the Zoning Board of Appeals.

(4) A special permit issued for a marijuana establishment is not transferable or assignable to a different location or a different type of marijuana establishment.

(5) The special permit requirements set forth in this article shall be in addition to, and not in lieu of, any other licensing and permitting requirements imposed by other state or local law, regulation, or ordinance.

(6) Review procedure. Upon receipt of an application for special permit, the Zoning Board of Appeals ("ZBA") shall distribute a copy of the application and relevant materials as described in Subsection F (Application requirements) below for review and comment to Fire Department, Police Department, Engineering Department, Director of the Health Department, and Planning Department. The Departments shall review and provide comment to the ZBA for its consideration of the special permit application and the requirements established herein. The Departments shall provide comment to the Board within 30 calendar days of receipt of a complete application.

(7) Peer review. The Zoning Board of Appeals and/or Planning Board may require an applicant to pay for reasonable consulting fees to provide peer review of the application or subsections of the application for a special permit, pursuant to MGL c. 44, § 53G and/or any other applicable law. Such fees shall be held by the City in accordance with the provisions of MGL c. 44, § 53G.

D. General requirements.

(1) Dimension and height requirements. Marijuana establishments must meet the setback, height, and lot coverage requirements of the zoning district in which the facility is located.

(2) Buffer.

(a) No marijuana retailer or medical marijuana treatment center shall be located within:

[1] Five hundred feet of any pre-existing public or private school providing education in kindergarten or any of grades one through 12;

[2] Five hundred feet of any pre-existing state-licensed child care facility, including day-care center, preschool, or afterschool facility;

[3] Five hundred feet of any pre-existing City of Beverly-owned library;

[4] Three hundred feet of any pre-existing City of Beverly-owned park, playground, and/or recreation area; or

[5] Two thousand feet of another marijuana retailer or medical marijuana treatment center, provided that this buffer shall not apply to a marijuana retailer and a medical marijuana treatment center operating at the same premises as a co-located marijuana operation.

(b) All other marijuana establishments shall not be subject to the buffer requirements in 935 CMR 500.110(3).

(c) For the purposes of siting standards for this article, distance shall be measured in a straight line from the nearest point of the property line in question to the nearest point of the property line where the marijuana establishment is proposed to be located.

(d) Whether or not a use is "pre-existing" is determined as of the date that the applicant files its state license application with the Cannabis Control Commission.

(3) Marijuana establishments shall be located only in a permanent, fully enclosed building and not within any mobile or temporary facility or enclosure, and shall not have drive-up or window service.

(4) Hours of operation: The hours of operation for marijuana retailers or RMDs shall be consistent with those of liquor stores under MGL c. 138, § 15.

(5) Requirements specific to marijuana cultivator establishments: The cultivation and processing of marijuana is not considered agriculture under MGL c. 128, § 1A, and is subject to MGL c. 94G, § 12.

E. Performance standards.

(1) Odor. All odors, smoke, vapor, fumes, gases, pesticides, insecticides, chemicals, and/or particulate matter resulting from the storage, processing, manufacture, and/or cultivation of marijuana or marijuana products shall be effectively confined or disposed of so as to prevent the emission of any noxious odors, air pollution and public nuisance.

(2) Waste disposal. All waste containing marijuana or marijuana by-products resulting from the storage, processing, manufacture, and/or cultivation of marijuana or marijuana products shall be disposed of in compliance with 935 CMR 500.105, General Operational Requirements For Marijuana Establishments, any other applicable operational requirements that may be promulgated by the Cannabis Control Commission, and any other applicable state and local laws, ordinances, codes, and/or regulations; and otherwise in a manner that does not create a public nuisance.

(3) Noise. Noise generated by marijuana establishments shall conform at a minimum to applicable state and local noise regulations, including the Massachusetts Department of Environmental Protection's Division of Air Quality noise regulations, 310 CMR 7.10; the Beverly Board of Health Regulations, Chapter 400, Article XI, Noise Control; and all relevant State Health Department regulations.

(4) Light/visual impacts.

(a) Light emitted from grow lights used in production facilities shall not be visible outside the facility.

(b) Marijuana plants, products, and accessories shall not be visible to a person from the exterior of the marijuana establishment.

(5) Parking. All marijuana establishments shall comply with the City of Beverly Ordinance Chapter 300, Article X, Parking and Loading Requirements, unless a greater number of spaces are required under special permit based on the transportation analysis provided by the applicant.

(6) Security. All marijuana establishments shall comply with 935 CMR 500.110, Security Requirements for marijuana establishments, and any other relevant security regulations that may be promulgated by the Cannabis Control Commission, in order to demonstrate that there is a limited undue burden on City public safety officials as a result of the proposed establishment.

(7) Emergency response. All marijuana establishments shall develop an emergency response plan to protect the health and safety of employees, patrons, and the general public; and to limit undue burden on City public safety officials as a result of the proposed establishment. The emergency response plan shall be filed with the Beverly Fire Department and Beverly Police Department pursuant to MGL c. 94G, § 12(h).

(8) Energy and environmental standards. All marijuana establishments shall prepare and follow an energy and environmental standards report to ensure the site design and management of any such marijuana establishment is done in such a manner that has a minimal detrimental impact on the environment. Any energy and environmental standards report shall address the following:

(a) Energy use. The report shall include detailed analysis and data regarding the proposed energy use for any marijuana establishment that is not a marijuana retailer or medical marijuana treatment center. the analysis shall include, but not be limited to, details regarding energy efficiency and conservation efforts.

(b) Water use. The report shall include detailed analysis and data regarding the proposed water use for any marijuana establishment that is not a marijuana retailer or medical marijuana treatment center. the analysis shall include, but not be limited to, details regarding the adequacy of the water supply, surface and subsurface drainage, technology utilized to keep tainted water from entering public water systems.

F. Application requirements.

(1) The applicant shall submit a statement:

(a) Disclosing all of the marijuana establishment's owners, including officers, directors, partners, managers, and/or any other individuals or entities having direct or indirect authority over the management, policies, security, and/or operation of the establishment; and

(b) Providing a description of facility operations including staffing, hours of operation, distribution and logistics, and management and oversight of operations.

(2) The applicant shall submit proof of a valid provisional or final license issued by the Cannabis Control Commission for the proposed marijuana establishment by submitting copies of all required licenses, registrations, and permits issued by the commonwealth and any of its agencies.

(3) The applicant shall submit proof of site control and right to use the premises proposed for the marijuana establishment in the form of a deed, executed lease, valid purchase and sale agreement, or other suitable option for such site control that documents the applicant's legal right to control the site.

(4) The applicant shall provide a site plan prepared by a Massachusetts-registered architect, professional engineer or other appropriate designation, and at a minimum include site and building details consistent with the Zoning Board of Appeals rules and regulations.

(5) Security plan. The applicant shall submit a security plan demonstrating compliance with § 300-122E(6). The Beverly Chief of Police or his designee shall review and provide written comment to the Zoning Board of Appeals.

(6) Emergency response plan. The applicant shall submit an emergency response plan demonstrating compliance with § 300-122E(7). The Beverly Fire Chief or designee and Beverly Chief of Police or designee shall review and provide written comment to the Zoning Board of Appeals.

(7) Odor control plan. The applicant shall submit an odor control plan demonstrating compliance with § 300-122E(1). The Director of the Health Department shall review and provide written comment to the Zoning Board of Appeals.

(8) Waste disposal plan. The applicant shall submit a waste disposal plan demonstrating compliance with § 300-122E(2). The Director of the Health Department and Engineering Department shall review and provide written comment to the Zoning Board of Appeals.

(9) Energy and environmental standards report. The applicant shall submit an energy and environmental standards report demonstrating compliance with § 300-122E(8). The Engineering Department and Municipal Inspection Department shall review and provide written comment to the Zoning Board of Appeals.

(10) Parking and transportation analysis. The applicant shall provide a transportation analysis prepared by a qualified transportation specialist acceptable to the Zoning Board of Appeals, at a minimum, modeling the expected origin and frequency of client and employee trips to the site, peak times of business with the expected number of vehicles entering and exiting the property, the expected modes of transportation used by clients and employees, and the frequency and scale of deliveries to and from the site.

(11) Location. The applicant shall submit a plan signed by a licensed surveyor depicting compliance with the linear distance requirements set forth in herein.

G. Special permit criteria. When approving a special permit under this article, the Zoning Board of Appeals shall make findings, in addition to any specific requirements or criteria set forth in § 300-91B, Special permit uses, of this chapter, that the project proposal meets the following additional criteria:

(1) That the applicant demonstrates the establishment will meet all permitting requirements of all applicable agencies within the commonwealth and will be in compliance with all applicable state laws and regulations, including, but not limited to, MGL c. 94G, Regulation of the Use and Distribution of Marijuana Not Medically Prescribed, 935 CMR 500, Adult Use of Marijuana, 935 CMR 501, Medical Use of Marijuana, and 935 CMR 502, Co-located Adult-Use and Medical-Use Marijuana Operations:

(2) That the applicant complies with § 300-123D, General requirements, and § 300-123E, Performance standards, of this chapter.

H. Waiver of buffer requirements through special permit.

(1) Buffer requirements may be reduced or waived by the Zoning Board of Appeals if the applicant demonstrates the following in addition to the criteria set forth in § 300-91B, Special permit uses, of this chapter:

(a) The marijuana establishment is separated from the pre-existing use by a natural or manmade physical barrier that sufficiently limits access to the marijuana establishment from the property containing the pre-existing use; and

(b) The marijuana establishment is not readily visible from the nearest point of the property line of the pre-existing use, and that any visibility may be eliminated or significantly reduced through landscaping or site improvements;

(2) If buffer requirements are waived the Zoning Board of Appeals may require additional conditions, including but not limited to, landscaping or fencing to further protect neighboring and pre-existing uses from nuisance or unreasonable hazard.

I. Modifications. Subsequent to a special permit being granted by the Zoning Board of Appeals, the marijuana establishment shall notify the Zoning Board of Appeals in writing of any proposed modification and submit a plan depicting the modification before such modification is implemented. The Zoning Board of Appeals shall initially make a determination as to whether or not the modification is minor. If the Zoning Board of Appeals determines that the proposed modifications are not minor, it shall order that an application for modification of a special permit be filed and a public hearing be held in the same manner as set forth for such applications.

J. Prohibition against nuisances. No activity shall be permitted in connection with a marijuana establishment that creates a public nuisance.

K. Violation. All provisions of § 300-99 of the Beverly Zoning Ordinances shall apply except that any violation shall be subject to a fine of $300 for each day such violation continues unabated after the remedy of same is ordered by the Building Inspector.

L. Severability. The provisions of this article are severable, and invalidity of any section, subdivision, subsection, paragraph, or other part of this article shall not affect the validity or effectiveness of the remainder of this ordinance. For any provision of this article that conflicts with another state or local ordinance, the most restrictive provision shall apply.