Pubdate: Thu, 14 Mar 2013
Source: Salem News (MA)
Copyright: 2013 Eagle Tribune Publishing Company
Contact: http://www.salemnews.com/contactus/local_story_015132129.html
Website: http://www.salemnews.com/
Details: http://www.mapinc.org/media/3466
Author: Alan Burke
Page: 1

RULING COULD NIX PEABODY POT BAN

AG: Similar Bylaw Against Dispensaries in Wakefield 'Conflicts With State Law'

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 by laws. 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."
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MAP posted-by: Jay Bergstrom