Mass. Attorney General: Towns Can't Ban Medical Marijuana Dispensaries

Mass. Attorney General: Towns Can't Ban Medical Marijuana Dispensaries

BOSTON, MA — Massachusetts communities can not enact a total ban on marijuana treatment centers, Attorney General Martha Coakley’s Office ruled today in a decision striking down a by-law passed by the Town of Wakefield.

Towns, however, are able to adopt zoning by-laws to regulate such treatment centers and to enact temporary moratoriums on the development of the centers, according to the Attorney General.

Such a ban would “would frustrate the purpose” of Question 3, “An Act for the Humanitarian Medical Use of Marijuana,” which was passed by 65% of voters in November, making reasonable access to medical marijuana impossible.

“The Act’s legislative purpose could not be served if a municipality could prohibit treatment centers within its borders, for if one municipality could do so, presumably all could do so,” the Attorney General wrote.

The Attorney General’s office did conclude that municipalities can adopt other zoning by-laws to regulate the location of medical marijuana treatment centers within the town.

Question 3, which became law on January 1, 2013, allows up to 35 dispensaries can open state-wide. The law requires at least one, but not more than 5, dispensaries to open in each of Massachusetts’ 14 counties.

Wakefield, and other towns wishing to regulate the locations of medical marijuana  dispensaries may continue to do so, as long as the zoning by-laws are not “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.”

Since the November elections, many communities across the state have passed such bans, including Wakefield and Reading, who passed bans shortly after the elections.

Although Wednsday’s statement from the Attorney General only specifically addressed the ban passed in Wakefield, other Massachusetts communities who have also banned medical marijuana dispensaries are likely to see their bans overturned as well.

In a separate decision, also announced Wednesday, Burlington’s temporary moratorium on medical marijuana treatment centers, which bans dispensaries from opening until mid-2014, was upheld by the Attorney General.

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, the Attorney General’s office said.

The state Department of Public Health has until May 1 to create the rules and regulations for the state-supervised medical marijuana program, including the guidelines for the operation of medical marijuana dispensaries.

Officials from the Department of Health have announced that they will release draft regulations of the rules on March 29, hold public hearings on April 19, and vote on the final rules May 8.

If approved, those rules will go into effect May 24.

The DPH then has until January 2014 to approve the applications and issue registrations to the dispensaries, and then another 90 days to licence and approve the dispensaries to open, making it  likely that the first dispensaries in Massachusetts will not be open spring 2014.

Until the dispensaries are open, the law allows qualifying patients to grow a limited amount of medical marijuana to ensure they have safe access to their medication. This right to grow expires once the dispensaries open, except for patients with permission from the state based on financial hardship or physical incapacity to travel to a nearby dispensary.