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Massachusetts Attorney General Strikes Down Local Medical Marijuana Bans

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"Massachusetts Attorney General Strikes Down Local Medical Marijuana Bans"

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In the months since Massachusetts passed a ballot initiative to legalize medical marijuana, several towns and cities have enacted zoning and other laws to ban or limit medical marijuana dispensaries in their jurisdictions. In a ruling Wednesday that focused on a Wakefield, Mass. bylaw banning dispensaries, state Attorney General Martha Coakley said flat-out bans are illegal because they “frustrate” the purpose of the state law.

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. Because we find that such a total ban conflicts with the Act, we must disapprove Article 11 on that basis.

More limited restrictions on dispensaries, and even temporary moratoriums, however, are permitted. Coakley issued a separate opinion Wednesday upholding a moratorium in the Town of Burlington. Coakley also rejected arguments that invalidating the ban would require localities to accommodate an activity illegal under federal law:

We recognize that marijuana remains a Schedule I drug and that the federal government is empowered to enforce the Controlled Substances Act (CSA) against those possessing or cultivating medical marijuana. However, no court has held that the Massachusetts Act is preempted by the federal CSA, and it is beyond the Attorney General’s limited standard of review of town by-laws to determine that issue. Further, other state courts have held that claimed federal preemption of a state’s medical marijuana law is not a valid basis for upholding a municipal zoning ordinance banning medical marijuana dispensaries that are authorized by that state law.

Other states such as California, which was the first state to pass a medical marijuana law in 1996, have had longtime local bans on marijuana dispensaries that have not been invalidated. But as the memo notes, states differ both in the nature of their medical marijuana laws and the nature of state authority over local jurisdictions. In California, courts have come to varying conclusions about local bans, and the state Supreme Court is now considering the issue.

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