Happy New Year! May 2021 bring you all tranquility, good health, and few surprises. Start the new year on an educational note by perusing this January edition of the Miyares and Harrington LLP newsletter.

The Massachusetts Municipal Association’s annual meeting and trade show is virtual this year, so we will miss greeting old friends and new in person. But please stop by our virtual booth. You’ll find an interesting video featuring our name partners Ray Miyares and Tom Harrington, informative PowerPoints, and a challenging trivia quiz. And please attend the Municipal Law Update seminar, in which Donna Brewer will provide the latest on the Open Meeting Law, Public Records Act, Tort Claims Act, and Telecommunications.
This month's newsletter features:
  • Bryan Bertram is the New Chair of Our Energy Practice Group

  • The Zoning Act is Loosened for "Housing Choice"

  • Cannabis Control Commission Approves Delivery Regulations

  • Rapid Fire Updates: USEPA Finalizes Modifications to MS4 Permit; Running for Municipal Office? Remember This

  • Trivia
Bryan Bertram is the New Chair of Our Energy Practice Group
We are pleased to announce that Bryan Bertram is the new chair of the firm’s Energy Practice Group. Many of our clients are already familiar with Bryan’s work advocating for local interests in the siting and permitting of energy facilities before the Energy Facilities Siting Board, Department of Public Utilities and Department of Environmental Protection. He is eager to continue his work on behalf of those clients and to advocate for others on matters of energy policy, regulation, facilities siting, and permitting.

Bryan is a graduate of Boston College Law School and has over a decade of legal experience, in both matters of energy and administrative law. He has previously represented private industry, state government and now municipalities on various energy-related matters. He has done so before administrative agencies and in courts, including in matters of siting, permitting, agency investigations, rate-setting, and rulemakings. Bryan thus offers a broad knowledge base for advising our clients, with experience in the many forums in which energy-related issues arise, and unique insights into the motivations of the private entities and other governmental actors that affect local interests.

As energy technology evolves and the need for energy infrastructure and facilities expands, we expect that our Energy Practice’s expertise will increasingly be needed to ensure that local decision-making reflects the increasingly complex set of regulatory demands and that local interests are properly weighed in state and federal decision-making and policy. Bryan is looking forward to taking a leadership role in bringing our firm’s deep and varied expertise to bear, whether acting in partnership with other entities or advocating for local interests when others seek to devalue them. 
Bryan looks forward to getting your energy law questions and helping devise strategies for addressing your current and emerging needs. 

When not practicing law, Bryan enjoys supporting his children’s youth sports exploits, and freely admits that, while qualified to coach his younger son’s soccer team, his golf abilities leave him best suited as a caddy to his older son. Bryan also enjoys time in the outdoors, including hiking through many of the local conservation areas and searching for the best local fishing spots.
The Zoning Act is Loosened for
"Housing Choice"
Zoning Act Amendments: After much anticipation the Zoning ActM.G.L. c. 40A, has been amended to include what some are referring to as “housing choice” measures. H.5250, signed by the Governor on January 14, contained an emergency preamble and is now in effect. The amendments strive to improve housing availability by (1) requiring zoning which permits multi-family housing in communities served by the MBTA; (2) reducing, from two-thirds to a simple majority, the approval needed by Town Meeting or City Council members for amendments to certain zoning bylaws pursuant to M.G.L. c. 40A, §5; (3) reducing, from two-thirds to a simple majority, the approval needed for the grant of certain special permits pursuant to M.G.L. c. 40A, §9; and (4) providing a reviewing Court the discretion to require a bond from a plaintiff appealing certain special permits, variances, or site plan approvals. 
 
MBTA Communities
The legislation inserts a new Section 3A into the Zoning Act. It provides that a community served by the MBTA must provide at least one reasonably sized zoning district in which multi-family housing is permitted as of right, “without the need for a special permit, variance, zoning amendment, waiver or other discretionary zoning approval.” Such a district must have a minimum housing density of 15 units per acre and be no more than one half mile from the nearest MBTA station. 
An MBTA community that fails to comply will not be eligible for funds from (1) the Housing Choice Initiative; (2) the Local Capital Projects Fund; or (3) the MassWorks infrastructure program

Zoning Bylaw Amendments
Up to now, M.G.L. c. 40, §5, required a two-thirds vote of the legislative body for the adoption or amendment of zoning bylaws. The legislation reduces that to a simple majority for zoning bylaws that:
  1.  Allow for multi-family housing, mixed-use developments, accessory dwelling units, or open space residential developments as of right;
  2. Allow for multi-family housing, mixed-use developments, increases in density, accessory dwelling units, and reductions in required parking by special permit;
  3. Allow for transferred development rights;
  4. Establish smart growth or starter home districts pursuant to M.G.L. c. 40R; or
  5. Modify dimensional and other regulations to allow for additional housing units beyond what would otherwise be permitted.
“Any amendment that requires a simple majority vote shall not be combined with an amendment that requires a two-thirds majority vote.”

Special Permits
The legislation provides that zoning ordinances or bylaws may provide for reduced parking space to residential unit ratio requirements where it serves the public good. The amendments also provide that a special permit may be issued by a simple majority of the Special Permit Granting Authority rather than the otherwise required two-thirds supermajority for the following projects:
  1. Multi-family housing within a half mile of a MBTA station if 10 percent of the units are affordable (at 80 percent of AMI) for at least 30 years;
  2. Mixed-use developments in population centers if 10 percent of the units are affordable (at 80 percent of AMI) for at least 30 years; and 
  3. Reduced parking to unit ratio requirements if the reduction results in the production of additional units.

Appeal Bonds
Finally, the legislation amends M.G.L. c. 40A, §17, to permit a court to require a bond from a plaintiff who appeals the grant of a special permit, variance, or site plan approval. This is an expansion of the previously existing authority which required a bond in the range of $2,000-15,000 for appeals of subdivision plan approvals. The court may require a surety or cash bond of not more than $50,000 upon a finding that “the harm to the defendant or to the public interest resulting from delays caused by the appeal outweighs the financial burden of the surety or cash bond on the plaintiffs.”
Cannabis Control Commission Approves Delivery Regulations
On November 30, 2020, the Cannabis Control Commission approved regulations establishing the framework for delivery of Adult Use (recreational) marijuana within the Commonwealth. The regulations create two new types of Delivery Licenses and address where delivery will be permitted. Additionally, the regulations include provisions designed to prevent a concentrated delivery industry. 

Below is a quick FAQ on the new regulations:
 
What types of establishments may deliver Adult Use marijuana and marijuana products?

The regulations created two new types of Delivery Licenses: (1) A Marijuana Courier License; and (2) A Marijuana Delivery Operator License. A Marijuana Courier is licensed to deliver marijuana and marijuana products directly to a consumer from a Marijuana Retailer, but is not authorized to sell marijuana or marijuana products directly to consumers. Marijuana Couriers may charge a delivery fee. In comparison, a Marijuana Delivery Operator may wholesale and warehouse finished marijuana products acquired from a Marijuana Cultivator, Marijuana Product Manufacturer, Microbusiness or Craft Marijuana Cooperative, and sell and deliver finished marijuana product directly to consumers. 

In addition to the Delivery Licenses, the Commission permits Marijuana Establishments to obtain a Delivery Endorsement, which is an authorization granted to Licensees to perform deliveries directly from the establishment to consumers. At this time, only Marijuana Microbusiness Licensees may obtain a delivery endorsement. 
 
Is a Marijuana Delivery Operator classified as a Marijuana Retailer?

The Commission’s regulations expressly state that a Marijuana Delivery Operator is not a Marijuana Retailer despite its ability to sell directly to its own consumers. However, communities are encouraged to review the definitions of “Marijuana Retailer” in their zoning bylaws and ordinances to evaluate how such uses are treated within their borders. 

Do Delivery Licensees need to collect and remit marijuana retail taxes? 

Marijuana Couriers are not required to collect and remit marijuana retail taxes. The retail tax is collected and remitted by the Marijuana Retailer where the Marijuana Courier picks up the product for delivery. In contrast, Marijuana Delivery Operators are required to collect and remit marijuana retail taxes. All retail sales of marijuana by a Marijuana Delivery Operator operating in a city or town that has accepted the marijuana local tax option (M.G.L. c.64N, §3) are subject to the local tax option of up to three percent on all marijuana and marijuana products. Communities that prohibit Marijuana Retailers, but allow Delivery Licensees, should consider whether acceptance of M.G.L. c.64N, §3, would be appropriate at this time. 

Who can obtain a Delivery License?

Marijuana Courier and Delivery Operator Licenses are limited to Economic Empowerment Priority Applicants and Social Equity Program Participants for a period of 36 months from the date the first Delivery Operator Licensee receives a notice to commence operations. 
 
Where is home delivery of Adult Use marijuana and marijuana products permitted?

Deliveries of marijuana by Delivery Licensee or a Marijuana Establishment with a Delivery Endorsement are limited to: (1) The municipality identified as the Marijuana Establishment’s place of business; (2) Any municipality that allows for retail of marijuana within its borders, whether or not any retail shops are in operation; and (3) Any municipality that, after receiving notice from the Commission, has notified the Commission that delivery may operate within its borders. Thus, communities that allow for the siting and operation of Delivery Licensees, but prohibit Retailers, must allow a Delivery Licensee located within their city or town to deliver to homes in their community. 

Can a municipality limit the time of delivery?

The regulations provide some leeway to municipalities to limit the time home delivery may occur.  
Rapid Fire Updates:
USEPA Finalizes Modifications to MS4 Permit
 
The USEPA has announced that previously proposed modifications to its NPDES general permit for municipal stormwater discharges (the “MS4 permit”) have been finalized; the final revised permit and appendices are available on the USEPA Region 1 website. These modifications to the 2016 permit were proposed in April 2020, after litigation challenging the permit was settled in December 2019. According to the Federal Register notice, the modifications have been finalized almost exactly as proposed in April, as had been widely anticipated. The most notable aspect of this announcement may be simply the availability of the final permit documents, which are far more convenient to use than the previously available documents showing only the proposed modifications.

Running for Municipal Office? Remember This

All municipal candidates who appear on a ballot must file campaign finance reports even if they spend only their own money or no money. The forms should be filed with the Town Clerk.

Trivia!
 
Question: Mignon Talbot, a professor of Geology at Mount Holyoke College, is know for what important accomplishment in 1910?
 
Last issue's question: Where was Herman Melville when he and Nathaniel Hawthorne discussed ideas that inspired Melville to write Moby Dick?
 
Answer: Monument Mountain in Great Barrington.
 
Winner: A first!  We had three virtually simultaneous correct responses, so we recognize you all. Mark Abrahams, of The Abrahams Group and a trivia star, noted that Melville and Hawthorne were hiking at the time. Gary Pitney, a member of the Stockbridge Planning Board and Assessors and a first-time winner, added the detail that they were caught in the rain and sheltered in a cave. And Kate Fletcher, also a member of the Stockbridge Planning Board, knew the correct answer too. We aren’t surprised that two of the three winners are from western Massachusetts. Congratulations to you all. 

MiyaresHarrington
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THIS NEWSLETTER MAY BE CONSIDERED ADVERTISING UNDER MASSACHUSETTS SUPREME JUDICIAL COURT RULES. This newsletter is intended for clients and friends of Miyares and Harrington LLP. It provides general information about legal developments and should not be used as a substitute for professional advice on your particular legal situation.

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