AG Decision Might Strike Down Peabody Pot Ban

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.