AG rejects medical marijuana ban but OK’s moratoriums

In a decision regarding a bylaw passed by the town of Wakefield, Attorney General Martha Coakley’s office ruled today that towns are not permitted to enact a ban on marijuana treatment centers.

Coakley’s office also ruled, however, that towns may adopt zoning bylaws to regulate such treatment centers and may enact temporary moratoriums on the development of the centers.

Over the past several months, many cities and towns have considered what action, if any, to take in response to the state law enacted by voters last November that legalizes medical marijuana treatment centers.

At least four communities voted to amend their zoning bylaws to ban medical marijuana treatment centers, while a number of communities have adopted temporary moratoriums, buying time to determine whether to put permanent restrictions in place at a later date. Others are considering bylaws to regulate the location and conditions of dispensaries.

All town bylaws and amendments must be reviewed and approved by the attorney general’s office before taking effect. The review looks only at whether the proposed bylaw conflicts with a state law or the constitution.

In the Wakefield case, Coakley’s office ruled that the bylaw conflicts with the state law passed by the voters on the grounds that if one municipality could ban treatment centers, presumably all municipalities could do so. Such a scenario would conflict with the law’s requirement that there must be at least one and no more than five treatment centers per county, and thus a ban would interfere with the will of the voters.

“We recognize that the Act presents legal issues new to Massachusetts communities, and many communities may wish to adopt zoning bylaws and other regulations to preserve ‘public health, safety, morals, or general welfare’ in response to this new legal use,” the ruling states. “However, where a bylaw frustrates a statutory purpose, such as Wakefield’s total ban on medical marijuana treatment clinics, the Attorney General’s standard of review compels us to disapprove it.”

The opinion went on to state that “municipalities are not prohibited from adopting zoning bylaws to regulate medical marijuana treatment centers, so long as such zoning bylaws do not conflict with the Act and are not ‘clearly arbitrary and unreasonable.’”

In a separate but related decision, Coakley’s office approved the town of Burlington’s bylaw to impose a moratorium on any medical marijuana treatment center until June 30, 2014.

The office ruled that the moratorium, passed by Burlington’s Town Meeting on Jan. 18, was consistent with the town’s authority to “impose reasonable time limitations on development, at least where those restrictions are temporary and adopted to provide controlled development while the municipality engages in comprehensive planning studies” and when the town’s stated intent is to manage a new use of some complexity.

In response to the two rulings, MMA Executive Director Geoff Beckwith said, “We appreciate the careful review that the attorney general’s office has given to this issue. Although we are disappointed that the state law prohibits communities from adopting a total ban on marijuana dispensaries, we are very encouraged that the rulings clearly uphold the ability of cities and towns to impose a temporary moratorium or pass permanent regulations and bylaws to safeguard the public interest.”

Also today, at a meeting of the state’s Public Health Council, Deputy Commissioner of Public Health Cheryl Bartlett announced the timeline for the department’s release of regulations to establish a medical marijuana program as required by the medical marijuana law.

• On March 29, the Department of Public Health will file draft regulations with the secretary of state and post them on the DPH website, opening their official public comment period.

• On April 19, the department will hold a public hearing to receive comments on the proposed regulations.

• The public comment period will close on April 20.

• The Department of Public Health will ask the Public Health Council to adopt final regulations on May 8.

• Should the Public Health Council vote to adopt the regulations, they would take effect on May 24.

The Department of Public Health is responsible for developing regulations around the application and registration process for medical marijuana treatment centers, hardship cultivation registrations, and the definition of what constitutes a 60-day supply of medical marijuana, among other issues.

On Feb. 26, the MMA submitted detailed comments to the DPH, calling on the agency to draft regulations that embrace the authority of cities and towns to safeguard local, financial, public health and safety concerns regarding the location of medical marijuana treatment and cultivation facilities.

• MMA testimony to Department of Public Health regarding medical marijuana rules