SalemNews.com, Salem, MA

March 14, 2013

Ruling could nix Peabody pot ban

AG: Similar bylaw against dispensaries in Wakefield 'conflicts with state law'

By Alan Burke
Staff writer

---- — PEABODY — The city’s recent effort to ban medical marijuana dispensaries may have run afoul of the law.

Attorney General Martha Coakley issued a ruling yesterday holding a similar bylaw in Wakefield invalid, saying it “conflicts with state law.” The opinion, however, does not preclude zoning to regulate where in the city such marijuana centers could be located.

Coakley said she acted based on her office’s “limited power of disapproval” regarding municipal bylaws. In such cases, she describes the attorney general as acting much like a judge.

One key finding in the Wakefield case echoes a concern that the Peabody City Council expressed during the debate prior to enacting the ban here. The medical marijuana law, passed in the state as an initiative petition in November, could be stymied “if a municipality could prohibit treatment centers within its borders, for if one municipality could do so, presumably all could do so,” according to Coakley.

The medical marijuana law passed with strong public support and is designed to supply the drug to people suffering from illnesses such as cancer. Some have criticized it, however, as a backdoor effort to legalize the drug. Peabody officials feared that allowing it here would attract an unwanted element and diminish the city’s quality of life.

The city has already received a number of requests for permission to locate such facilities here. The city is uniquely attractive due to the major highways running through it.

Councilors reacted with understandable caution to the first reports of the attorney general’s ruling, not having seen her lengthy opinion. Dave Gravel wondered what differences there might be between the Wakefield bylaw and Peabody’s.

“I expect our bylaw could meet the same fate (as Wakefield’s),” said Anne Manning-Martin, who chairs the legal affairs subcommittee. “We will have to regroup and figure out the best manner to proceed.”

“I think we stand by our vote, and we’ll let it play out,” council President Tom Gould said. He expects to get a legal opinion on the city’s options from the city solicitor.

Mayor Ted Bettencourt, who first proposed the ban, could not be reached for comment yesterday.

The possibility that the Peabody bylaw could be overturned in court had been discussed during debates prior to its nearly unanimous passage. Some feared that it would be ruled invalid precisely because it opened up the possibility of every community in the state attempting to block the medical marijuana facilities, thereby frustrating the will of the electorate.

That objection was bypassed, however, on the theory that the city’s early action would discourage anyone from undertaking the expensive legal machinations required to locate here. A rejection by the attorney general was not discussed.

The only negative vote came from veteran Councilor Bob Driscoll, who urged his colleagues to wait and see what Beacon Hill has planned for this law, which many complain is vague, confusing and in need of clarifying legislation.

In explaining her actions, Coakley stressed that to strike down the local ban, she had to find “a sharp conflict between the local and state provisions.”

The marijuana law is new, Coakley concluded, and cities and town will want to regulate it in the interest of “public health, safety, morals or the general welfare.” But any regulation must be disapproved if it “frustrates a statutory purpose.”