About Us
Contact Yasenka Law when you need an advocate
Litigation Representation & Counseling for Businesses & Individuals
Litigation Representation & Counseling for Businesses & Individuals
Yasenka Law was founded to provide high quality legal services for businesses and individuals who seek personal commitment, clear communication, efficient and thorough work, and value for their money.
Litigation Representation & Counseling for Businesses & Individuals
Litigation Representation & Counseling for Businesses & Individuals
Litigation Representation & Counseling for Businesses & Individuals
Attorney Yasenka recognizes the need for efficiency and objective analysis when dealing with lawsuits or the threat of legal action. She practices law with a focus on exceptional client service using a no-nonsense, problem-solving approach.
Experience and Dedication
Litigation Representation & Counseling for Businesses & Individuals
Experience and Dedication
Attorney Yasenka is a trial lawyer who has handled challenging and sophisticated legal matters of all sizes, from federal class action lawsuits to contract disputes in state courts, for Fortune 500 companies and individuals.
Practice Areas
Business Litigation
Representation for businesses and individuals who are plaintiffs or defendants in various types of civil lawsuits, including breach of contract, misappropriation of business information and trade secrets, non-compete, non-solicit and non-disclosure clauses, breach of fiduciary duty claims, director and officer liability, fraud and misrepresentation claims, unfair and deceptive trade practices, and corporate shareholder disputes for closely held companies
Land Use & Property Litigation
Advocating for property owners in lawsuits related to boundary, easement, and license disputes and before local land use board hearings and on appeal to the superior and supreme courts
Cannabis Law
Representing cannabis entrepreneurs and businesses in disputes and litigation
Construction Litigation
Representation for businesses or property owners in disputes regarding construction contracts and performance in court or arbitration
General Civil Litigation
Representing individuals and businesses in complex commercial lawsuits or simple disputes going to trial, arbitration, mediation or before administrative boards
Family Law
Assisting one or both parties to effect a fair and efficient resolution in divorce and parenting disputes
Business Counseling
Advising businesses on strategies for asset protection, including how to protect their valuable business information, such as confidential, proprietary and trade secret information and crafting employment agreements to protect their employees and their business’ competitive advantage
News and Updates
The New And Changing Landscape for Host Community Agreements
Community Impact Fees Are Limited to Documented Actual Costs Incurred By the
Municipality Reasonably Related to the Operation of the Marijuana Establishment and the Recoupment of Unsubstantiated Community Impact Fees Improperly Collected
By: Thomas K. MacMillan, Esq. (tkmmaclaw@aol.com) and Kristin M. Yasenka, Esq.(kristin@yasenkalaw.com)
**The information contained herein is for general informational purposes only and does not, and is not intended to, constitute legal advice, and you should not rely upon, act, or refrain from acting based on any information provided herein. Consult an attorney for advice on your situation or specific legal questions you have.
The landscape of what a municipality can require of a marijuana establishment has changed. The Massachusetts legislature has now clarified what municipalities have to provide, and when, if they want to collect a community impact fee. To begin, a community impact fee is in addition to the 3% sales tax paid by a marijuana establishment to the municipality. The impact fee was never intended to be, and cannot legally constitute, a form of revenue generation for the municipality. Nonetheless, many municipalities have imposed community impact fees that do not comport with state law as it existed previously or under the new amendments.
Each marijuana establishment operating in the Commonwealth of Massachusetts is required by state law to execute a Host Community Agreement (HCA) with its municipality. The controlling statute is G.L. c. 94G. The statute was recently amended, and most of its new or amended provisions went into effect November 9, 2022. The new statute can be found atwww.mass.gov/info-details/mass-general-laws-c94g-ss-3.
The amendment of Section 3(d) makes substantial changes to the method and ability of a municipality to collect its community impact fees. Under the old law, the municipality could include a provision in the HCA to collect a community impact fee. Prior to November 9, 2022, the HCA could require a community impact fee of up to 3% of the gross sales of the marijuana establishment provided that the fee shall be reasonably related to the costs imposed upon the
municipality by the operation of the marijuana establishment. Additionally, the law required that any cost to a city or town imposed by the operation of a marijuana establishment be documented. Many municipalities thereby imposed and collected impact fees of 3% (sometimes more) but failed to provide the companion documented costs, and some have taken the position that there is an unlimited time to do so.
The Massachusetts legislature has now passed legislation that amends G.L. c. 94G. The amendments to G.L. c. 94G clarify what the host community must provide in terms of documented costs and when they must be provided.
Like the old law, the new law requires that the community impact fee be reasonably related to the costs imposed upon the municipality by the operation of the marijuana establishment. Notably, however, the amendments to the statute now prohibit the host community from imposing a fee that is a percentage of gross sales. The new law states that a host community agreement may include a community impact fee for the host community; provided, however, that the community impact fee shall be reasonably related to the costs imposed upon the municipality by the operation of the marijuana establishment, and the fee must be supported by documentation of actual costs, not anticipated ones, imposed upon the host community in the preceding year that are reasonably related to the operation of the marijuana establishment. The host community must produce the documented costs not later than one month after the annual renewal of the final license. Additionally, the fee cannot amount to more than 3 per cent of the gross sales of the marijuana establishment and cannot mandate a certain percentage of total or gross sales as the community impact fee.
The new law also prohibits additional payments as part of the community impact fee. The community impact fee shall encompass all payments and obligations between the host community and the marijuana establishment. The community impact fee shall not include any additional payments or obligations, including, but not limited to, monetary payments, in-kind contributions and charitable contributions by the marijuana establishment to the host community or any other organization. Any other contractual financial obligation that is explicitly or implicitly a factor considered in, or is a condition of a host community agreement, shall not be enforceable.
The timing of the impact fee payment is also clarified under the new law. Payment of the community impact fee shall be due annually to the host community, with the first payment occurring not sooner than upon the first annual renewal by the commission of a final license to operate the marijuana establishment.
Under the amendments, a marijuana establishment is also provided with a statutory right to seek its attorney’s fees if the municipality breaches the host community agreement and imposes fees that are not reasonably related to the actual costs imposed upon the city or town. If a licensee believes the information documented and transmitted by a host community is not reasonably related to the actual costs imposed upon the host community in the preceding year by the operation of the marijuana establishment, the licensee may bring a breach of contract action against the host community and recover damages, attorney’s fees and other costs encompassed in the community impact fee that are not reasonably related to the actual costs imposed upon the city or town.
The amended statute also states that a marijuana establishment seeking a new license or renewal of a license to operate or continue to operate shall negotiate and execute a host community agreement with that host community setting forth the conditions to have a marijuana establishment located within the host community.
Given the recent adoption of the amendments, no court has yet weighed in on whether the amendments will apply to existing HCAs or whether the host community and the marijuana establishment will be required to negotiate a new HCA in compliance in with the new law.
Additionally, the CCC will be reviewing each HCA during the annual license renewal process and will be promulgating revised regulations in line with the amendments, hopefully to include an HCA template to bring some uniformity across the Commonwealth.
Based on the clarifications in the amended statute, we believe it is likely that any HCA that is not in compliance with the amendments will not be allowed. And as for future collection attempts, some municipalities appear to have seen the writing on the wall and have stopped collecting impact fees. At least one, the City of Boston, will refund the impact fees paid to date. Other municipalities, however, may continue to seek to collect impact fees pursuant to a noncompliant HCA. Additionally, operators may be asked, or required, by their host community to execute a new HCA. Each operator should pay attention to the terms of any proposed new HCA to ensure that it is in compliance with the amended statute and that the operator is not waiving any rights by executing the new HCA, specifically with respect to seeking a refund of any impact fees collected in violation of state law.
Thomas K. MacMillan, Esq. is a trial and appellate lawyer with over 41 years’ experience in Massachusetts and New Hampshire state and federal courts. Kristin M. Yasenka, Esq. has been practicing in Massachusetts and New Hampshire state and federal courts since 2003 focusing on civil and business litigation and land use law. Thomas and Kristin currently represent cannabis establishments in cases pending in the Superior Courts of Essex, Worcester, and Berkshire counties seeking the refund.
Learn More
New amendments to the law governing HCAs may impact cannabis operators’ ability to recover previously paid and unsubstantiated community impact fees. Operators should review their host community agreements and pay attention to any changes requested by their municipalities as a result of the newly effective amendments. State law now prohibits flat fees and requires the municipality to produce the documented actual costs incurred reasonably related to the marijuana establishment’s operation within one month of its final license annual renewal date. Operators will likely be required to revisit their HCAs once the CCC updates its regulations and may need to act sooner than later to preserve their rights.
Kristin M. Yasenka, Esq.
Attorney Kristin M. Yasenka is the founder of Yasenka Law PLLC, a New Hampshire-based law practice specializing in litigation. Previously, Kristin gained legal experience at the national level while at Nixon Peabody LLP, a Global 100 law firm, where she focused her practice on complex commercial litigation in federal and state courts across the country. Kristin litigated claims for trade secret misappropriation, breach of non-competition, non-disclosure, and non-solicitation agreements, and violations under the Computer Fraud and Abuse Act in New Hampshire and Massachusetts state and federal courts. Kristin also defended national banks in class action lawsuits in federal courts and on appeal to the Ninth Circuit Court of Appeals. Her practice in state courts included representing creditors in actions to protect their rights in bankruptcy and financial institutions in litigation based on trustee status and defending officers and directors in breach of fiduciary duty claims.
Prior to Nixon Peabody, Kristin worked for two of New Hampshire’s largest firms, McLane, Graf, Raulerson & Middleton, PA, and Nelson, Kinder, Mosseau & Saturley, PC, where she litigated civil commercial actions, including breach of contract claims, close corporation breach of fiduciary duty and conversion claims, trade secret infringement and breach of non-compete agreements, commercial insurance coverage actions, appeals to state and federal courts from municipal land use boards, product liability actions, and professional liability defense in engineering and construction disputes. Kristin has also represented clients in administrative hearings, including the Department of Safety Motor Vehicle Industry Board, the Department of Labor, and the Attorney Discipline Office.
Kristin is admitted to the New Hampshire and Massachusetts state bars, the United States District Court for the Districts of New Hampshire and Massachusetts, and the Court of Appeals for the First and Ninth Circuits.
Kristin earned her Juris Doctor from Boston College Law School in 2003 where she participated in the Grimes Moot Court Competition and was a member of Phi Alpha Delta. She graduated cum laude from Tufts University in 2000 and studied abroad at the University College London.
Kristin is also actively involved in the southern New Hampshire community. She has previously served as the Chair and Vice Chair of the Town of Hampstead Zoning Board of Adjustment, Chair of the Membership Committee of the Webster-Batchelder American Inns of Court, Vice Chair of the Gender Equality Committee of the New Hampshire Bar Association, and on the Greater Manchester YMCA Advisory Board. Kristin was a founding officer of Isaiah 58 New Hampshire, a non-profit assisting the homeless and housing insecure in Western Rockingham County, and continues to support its mission.