Mayor Judith Flanagan Kennedy has vetoed a proposed city ordinance restricting the location of medical marijuana dispensaries in Lynn, citing
a concern that it might be unconstitutional.
Concerned about possible public safety impacts, some cities and towns have adopted or are considering local bans or restrictions on the locations of dispensaries, while others are waiting until after the state issues regulations by May 1.
In this region, outright bans on dispensaries were adopted by special town meetings in Reading and Wakefield last November. The Melrose Board of Aldermen approved a ban on Jan. 22, and the Peabody City Council on Jan. 24.
In Lynn, the mayor’s action leaves uncertain the fate of the zoning ordinance, which the City Council approved by an 8-2 vote with the support of Police Chief Kevin F. Coppinger and MaryAnn O’Connor, the city’s public health director.
City Council president Timothy Phelan, who proposed the ordinance, said the mayor’s veto is on the agenda at the council’s meeting Tuesday
and that a vote on whether to override it is possible.
“The ability to veto anything is an inherent power of the mayor’s office, and I have no issue with her exercising that right,’’ Phelan said. “We just have a different opinion on the issue.’’
The state ballot question legalizing medical marijuana that voters approved last November allows for up to 35 nonprofit treatment centers to grow and provide the marijuana in the state’s 14 counties, with at least one per county. Under the new law, the state Department of Public Health is required to develop regulations governing the dispensaries by May 1.
The state attorney general’s office, which reviews all town-adopted — but not city — bylaws to ensure they do not conflict with the state constitution and laws, has until March 21 to decide on Wakefield’s ban and until April 11 on Reading’s.
Among the cities taking the wait-and-see approach, the Malden City Council voted Jan. 22
to restrict dispensaries to industrial areas of the city, but it delayed implementation until the state issues its rules.
The Revere City Council last Monday referred to committee a proposed dispensary ban, while the Planning Board on Tuesday recommended that no action be taken until the state issues its regulations.
Also last Monday, Burlington Town Meeting approved a 17-month moratorium on such dispensaries to give the town time to develop rules after the state regulations are released.
A Woburn City Council committee
voted 3-2 on the same day to recommend the council adopt a one-year moratorium on dispensaries “to give us time to get feedback from the state Department of Public Health,’’ said Ward 4 Alderman Mike Anderson, the committee chairman. A proposal to recommend an outright ban lost on a 3-2 vote.
The proposed Lynn ordinance would bar a medical marijuana dispensary from locating within 1,000 feet of a school, public park, or residential dwelling unit, or within the city’s waterfront area.
Kennedy wrote the council that she was vetoing the measure “for many reasons, but primarily for its suspected unconstitutionality.’’
In a follow-up letter, Kennedy said that city attorney James Lamanna had advised her that “the practical effect of the ordinance would be to preclude dispensaries throughout the city. I believe that such an outright prohibition would be found to be unconstitutional.’’
“But even if these restrictions were to pass constitutional muster, I suggest that they fly in the face of the expressed preferences of the voters,’’ Kennedy added, referring to approval of the state referendum.
“This has nothing to do with the legality of medical marijuana,’’ Phelan said of the ordinance, adding that he respects the will of the voters and is comfortable with medical marijuana being used to alleviate pain.
Instead, he said the ordinance is intended to prevent the kind of public safety problems that Coppinger, the Lynn police chief, told the council have occurred in states that have dispensaries. “His research showed that they are crime magnets,’’ Phelan said.
Kennedy also said the council “is acting too hastily in promulgating these restrictions, when the [state] Department of Public Health has not yet released its initial regulations.’’
But Phelan said that if Lynn waited for the state rules, the city would be exposed to a dispensary opening in the interim. Based on his conversations with the city’s law department, he thinks the ordinance could withstand a legal challenge.
Lamanna, who assisted the council with the ordinance, said that as Essex County’s largest city, Lynn would likely face a legal challenge. But he said since marijuana remains an illegal substance under federal law, he finds it “hard to believe that the federal constitution would be violated’’ by the proposed restrictions.