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AG Decision Might Strike Down Peabody Pot Ban

Attorney General Martha Coakley finds that an outright zoning ban on medical marijuana facilities in a town conflicts with the purpose of the law.

 

Towns are not allowed to enact outright bans on marijuana treatment centers, so says Attorney General Martha Coakley in a decision issued Wednesday.

On the face of it, while the decision wasn't targeted at Peabody, it does appear to invalidate the city's recent ban on medical marijuana facilities. Coakley says Massachusetts law now allows for such facilities, so they have a right to locate somewhere. Cities and towns could, however, draft zoning regulations to limit where a dispensary could operate.

Coakley specifically weighed in on a zoning ban approved at Town Meeting in Wakefield in November, finding it conflicted with state law.

"We find that such a ban would frustrate the purpose of [the law]...to allow qualifying patients, who have been diagnosed with a debilitating medical condition, reasonable access to medical marijuana treatment centers," she said.

If one municipality were allowed to fully prohibit treatment centers, then presumably every city and town could as well and that would conflict with the purpose of the law, making reasonable access to treatment impossible, Coakley said.

In much the same way, the Peabody City Council approved a ban in January proposed by Mayor Ted Bettencourt to fully ban medical marijuana facilities from any zoning district in the city.

Councilor Bob Driscoll was the lone vote against the ban, saying he felt it was premature without regulations yet from state health officials, but largely councilors and Bettencourt felt it was better to act swiftly and worry about dealing with any legal fallout later on.

Councilors said at the time they had already received interest from several people looking to set up shop in Peabody.

In Wednesday's decision, Coakley did say, however, that towns “can adopt other zoning bylaws to regulate, for example, the location of these treatment centers within the town.”

That's what Ward 5 Councilor Dave Gamache originally intended to do last fall soon after the ballot measure passed at the polls. Danvers and Salem also undertook similar zoning changes and that effort was made in Wakefield, but discarded in favor of the full ban.

Several other cities and towns across Massachusetts also put total bans in place since November's election.

Coakley noted, that in a related decision, she had approved a bylaw in the town of Burlington that placed a temporary moratorium on medical marijuana centers until June 30, 2014.

“The temporary moratorium is consistent with the town’s authority to impose reasonable time limitations on development while it conducts planning studies and considers the implication of state Department of Public Health regulations concerning such centers, which are expected to be issued in May 2013,” Coakley said.

Bettencourt's chief concerns were over the lack of regulations yet to be developed, which begged numerous questions on who and how the centers would be run.

He had acknowledged the city might eventually have to revisit the ban depending on those regulations or related legal decisions, and would do so when that time came.

City councilor Dave Gravel has also asked for City Solicitor Michael Smerczynski to provide the council with a legal opinion on the attorney general's recent decision and how it may affect the ban in Peabody.

Related Topics: Attorney General, Marijuana, Medical marijuana, Pot Shops, and Zoning Ban

SueB

11:05 am on Thursday, March 14, 2013

The people have spoken! Hahaha Love it! I don't smoke pot but do believe in voters rights and also the fact that alcohol and prescription drugs do FAR more damage!

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Patriots Fan

11:12 am on Thursday, March 14, 2013

AMEN!!! Mayor Bettancourt and the City Council members should spend more time listening to the voters and less time caving into to internal pressures. Clowns.

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SueB

11:30 am on Thursday, March 14, 2013

Big Scary Pot...oooooooo....what a joke!!!!Meanwhile doctors, lawyers, teachers, pretty much everyone you may not think smokes actually DO! Wine/Beer vs. pot= no difference hypocrites!

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Bob Croce

11:49 am on Thursday, March 14, 2013

They are clowns because they are out to protect the safety and quality of life of the residents of Peabody? That's a strange definition of "clown" there Patriots Fan. The fact is, and considering the total lack of regulation and unknowns surrounding this law, it would be totally irresponsible for our elected officials to NOT vote to ban. I hope the city stands its ground here. Some lawsuits are just worth fighting. People were duped with this thing, and now all our elected leaders are doing is protecting public safety and quality of life, which should be their primary responsibility as public servants.

This ballot question would have overwhelmingly failed had the public known it was going to be put into law so haphazardly and without any regulation.
http://www.bob4ward5.com

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David MacDonald

12:20 pm on Thursday, March 14, 2013

Can't block it, but can regulate it....banished to Route 1, somewhere between the jughandle and the controversial billboard skeleton.

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Bob Croce

12:25 pm on Thursday, March 14, 2013

But David, we don't need any more vice on Route 1. There are no rules around these dispensaries, which is the main problem. I'm actually in favor of legalizing marijuana for medical use, but it should be through the prescription of a qualified medical professional, and dispensed through regulated pharmacies, just like any other medication.

Right now under this law, anyone can set up shop and sell pot, and the state has no details on how any this will be regulated. Right now, it's a threat to public safety and quality of life. That's why I'm in favor of the ban.
http://www.bob4ward5.com

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College Student

1:18 pm on Thursday, March 14, 2013

A ban is a good idea until proper regulations can be drawn up. Martha Coakley can't seem to understand this fact cause she is probably a pot smoker herself. Also what do people think about taxing marijuana? Seems like that would be a good revenue source for city/state governments

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Tom

3:41 pm on Thursday, March 14, 2013

Bob, you are way off base. Pot is in no way any more of a "threat to safety and quality of life" than alcohol. Stop trying to scare people.

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Bob Croce

4:07 pm on Thursday, March 14, 2013

Tom,
Please read again what I've written. I never said "pot" was a "threat to safety and quality of life." I wrote that the law itself was a threat, because no one knows how it will be regulated, and the people who are allowed to own these shops have no credentials, no healthcare provider experience.

By the way, if you want to use alcohol as a comparison, go right ahead: Are you aware that towns and cities in MA can LEGALLY ban the sale of alcohol too, if they choose?

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Reginald

4:28 pm on Thursday, March 14, 2013

Come on Mayor and City Council. The people have spoken, and it is now the law of the land. Your job is to make it work, or step aside and let someone else take your place who is up for the job. Use some creative thinking. Like instead of zoning for where you can't have one, zone for an area that can have one. Like the lot right next to the Police Station. Problem solved. No one can sue the city for arbitrary zoning rules to circumvent the law, and you won't have any problems from the "clients".

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Chris Chatzi

5:30 pm on Thursday, March 14, 2013

Bob, it is not going to be implemented without regulation. The Department of Health will be issuing regulations before any dispensary permits are issued. The Department is supposed to have regulations completed by May 1, although they have already stated that they may be issued past that deadline. If you are so excited about representing the citizens of Peabody on the council, perhaps you should do your research instead of suggesting the taxpayers to fund a lawsuit while overriding the vote of 63% of the population. I agree with Reginald. Either make it work or step aside and let someone else run for council.

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Bob Croce

8:42 pm on Thursday, March 14, 2013

Sorry Chris, but you're just wrong on all counts here, The Peabody City Council and the Mayor did the right thing, and should stick by their votes. They didn't wait and hope it would be regulated properly. They acted immediately to protect the safety of those they represent and to protect quality of life. They acted proactively and in our best interests. As for your comment about me "representing the citizens of Peabody," the overwhelming majority of those who voted for your deceptive pot shop referendum did so under the impression that it would be regulated and would be dispensed through a qualified pharmacy. I guarantee that, if you polled Peabody voters now, they would OVERWHELMINGLY agree with Mayor Bettencourt here.

If I'm elected Ward 5 Councilor, I can assure you that I will do everything I can to ensure that the residents of my ward don't have their quality of life infringed upon by unregulated pot shops up on Route 1.
http://www.bob4ward5.com.

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Saber Walsh

9:38 am on Friday, March 15, 2013

Like her predecessor, an Attorney General who does not live up to the job, but instead announces to the world what laws she will overinterpret ("big bad corporations going after da big guy"), which Constitutional judgements she will singlehandedly make ("force cities and towns to allow shops that are illegal under Federal law"), and which laws she will plain ignore (immigration).

I dream of a day when we get an Attorney General who will just do his or her job -- enforce the laws of the Commonwealth equally across the board, and stop being an activist for the New Bolsheviks.

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Bob Croce

9:48 am on Friday, March 15, 2013

Chris.
"In the process of developing regulations" means that we have to trust that the regulations will be acceptable to our community. This is what I am getting at. Our Mayor and City Council took a proactive approach here. If the state wants to develop its regulations, and those regs are acceptable to us when it comes to protecting the safety and quality of life of our citizens, then we can reconsider the zoning ban. If I'm on the City Council when that happens, I might even consider voting to lift the ban.

But it's just not good practice to govern blindly, and trust that the state will do the right thing.

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Reginald

10:28 am on Friday, March 15, 2013

Bob, I disagree with your premise that the council is being proactive. They are being reactive to the ballot question passing. Being proactive would be defining your list of concerns and stating that if the regulations, when issued, properly address these concerns you will have no further objections. Of course this commits you to staking out a position that you will need to defend once the regulations are defined. And as John Maynard Keynes said “When my information changes, I alter my conclusions. What do you do, sir?”

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Bob Croce

10:54 am on Friday, March 15, 2013

Reginald,
We can agree to disagree here, but by "proactive" I mean that the councilors and the Mayor were acting to keep from being sorry later when Peabody didn't get what it needed from the standpoint of regulation. The way I look at it, and had I been on the council at the time, I would voted for the ban simply because I didn't feel there was enough information available on this law to assure me that it would be properly regulated.

I was at the meeting where they debated this, and I was at the meeting where they took the vote, and I can tell you that councilors who spoke out for the ban did so while voicing the same concerns I've outlined here. They weren't "reacting" to the ballot question passing. They were being "proactive" in heading off problems that might occur now that the question had passed. Heck, some of the councilors, before voting for the ban, even admitted that they had personally voted Yes on the ballot question.
http://www.bob4ward5.com

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Chris Chatzi

12:53 pm on Friday, March 15, 2013

Bob, now that we know your definition of “proactive,” when you said “[this will be] put into law so haphazardly without any regulation” did you mean “regulations are being drafted as we speak”? When you said, “Right now under this law, anyone can set up shop and sell pot,” did you mean “right now under this law, no one can set up shop and sell pot”? When you said, “you’re wrong on all counts,” did you mean, “You are right, the Department of Health will be issuing regulations before any dispensary permits will be issued”?

I get your point that we don’t know the regulations will say, but do your research before spreading misinformation while telling other people that they are wrong.

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Bob Croce

1:10 pm on Friday, March 15, 2013

Plain and simple, Chris: The Peabody City Council voted unanimously for this ban because no one knows how it will be regulated. There is concern about the unknown, so considering that, they DID their jobs. They did the work of the people and protected both public safety and quality of life. I would have done the same.

They are not making a judgment call on whether or not they think medical marijuana should be legal: They're simply protecting their communities from a poorly constructed, and terribly executed law. That's exactly what taxpayers should expect from their elected officials.

I'm not interested in a debate on whether it's a good law or a bad law. I'm simply telling you that, because of the vagueness of this law, it would be irresponsible for elected officials in any community to allow pot shops to open at this time. My point is also backed by the fact that many cities and towns have done exactly what Peabody did.

I've gone as far as I can here, so I will let you have the last word.
http://bob4ward5.com.

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Chris Chatzi

1:52 pm on Friday, March 15, 2013

Bob, I have no problem with you expressing your opinion. Nor am I engaging in a debate on the quality of the law. If you read my posts you will see that I do not share my opinion on the quality of the law. I am simply trying to correct the misinformation that you spread all over the comments.

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