PEABODY — City councilors were poised to vote on a temporary ban on retail marijuana sales in Peabody Thursday night, until City Clerk Tim Spanos pointed out they couldn't.

The Planning Board hasn't issued a recommendation yet on the proposed moratorium, which would be instituted as a zoning change, Spanos explained. The board was supposed to hold a hearing June 1, but that had been delayed until its next meeting later this month.

The board's opinion isn't binding with the council, which has authority over zoning, but it's necessary before the council votes. The council, therefore, held off on voting on the issue until it has that recommendation.

In addition to that wrinkle, Ward 6 Councilor Barry Sinewitz wasn't too pleased that none of the city's legal counsel were present Thursday night.

"There is a lot of legal uncertainty to this...but there is no one here to answer anything," Sinewitz said. "Are we supposed to just vote on it?"

He reiterated concerns he's raised in recent weeks, questioning the legality of the moratorium and whether it's not just a "feel good" measure.

Sinewitz points to the ban on medical pot the council adopted at the mayor's urging in 2013, only to learn later that a total, permanent ban wouldn't stand a legal challenge.

What the attorney general's office did say, however, at that time, was that a moratorium — much like the one being considered now — to allow time for local and state regulations to be crafted was legally tenable.

On Thursday, councilors Pete McGinn and Dave Gravel noted the moratorium received a thorough vetting in committee and City Solicitor Mike Smerczynski had already drafted a legal opinion to the council on the subject.

"I'm certainly no expert on recreational marijuana, but I think it's clear what the moratorium does," said Gravel.

As a zoning amendment, the moratorium (if approved) would be in place until Dec. 31, 2018, prohibiting the use of land or buildings for recreational marijuana establishments or retailers involved in cultivation, testing facilities, product manufacturers, retailers or any other type of licensed marijuana-related business.

The zoning language notes it does not apply to the sale, distribution or cultivation of marijuana for medical purposes.

Sinewitz urged his colleagues again to consider zoning for recreational use instead of banning it.

"We can be against it all we want....but we'll see what the residents of this city want. It's not us who are going to make the final decision," he said. "I don't want to put us in the position of getting sued."

He was referring to the referendum on retail marijuana that will appear on the city ballot this November.

While some neighboring communities have already adopted similar moratoriums to delay pot shops from opening until state lawmakers and a new Cannabis Control Commission hash out regulations, the measure in Peabody is more of a fail-safe.

The council, at the behest of Mayor Ted Bettencourt, has already agreed to place a ballot question before Peabody voters to permanently ban retail pot in the city. This is allowed under a local controls provision in the new recreational pot law.

Should that effort fail to gain traction with city voters — they did vote 52 to 45 percent against legalizing recreational pot on the 2016 state ballot — the intent is that the moratorium would still be in place.

Gravel also noted Thursday that the moratorium would extend beyond the state election in 2018, effectively giving Peabody officials a second shot at placing it on a ballot if needed.

Staff writer John Castelluccio can be reached at 978-338-2677 or jcastelluccio@salemnews.com.

Pot moratoriums

  • Beverly — ends Dec. 31, 2018 (pending final approval)
  • Danvers — ends Dec. 31, 2018
  • Hamilton — ends June 30, 2018
  • Ipswich — ends July 1, 2018

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