Published in the December 7, 2016 edition
By DAN TOMASELLO
LYNNFIELD — The Board of Selectmen has begun laying the groundwork to keep any kind of commercial recreational marijuana activity out of Lynnfield.
The decision comes in the wake of a statewide vote on the Nov. 8 ballot approving recreational use and commercial sale of marijuana in Massachusetts. While Question 4 passed statewide, the marijuana legalization ballot question went up in smoke here as voters rejected the ballot question 4,427 votes to 2,940 votes.
Town Counsel Tom Mullen told the selectmen last week that Question 4 allows municipalities to “pass a bylaw that would prohibit recreational marijuana establishments including cultivation, manufacturing and retail.” However, he said the bylaw cannot be passed by voters at Town Meeting and must be approved at the ballot box.
“This is generally different than how we pass bylaws,” said Mullen. “Presumably, the bylaw would be a general bylaw and not a zoning bylaw because it would be applicable across the town.”
Mullen noted banning recreational pot shops “would not supersede” the town’s medical marijuana bylaw, which he said will “remain in place.”
“If the selectmen want to go in this direction, I recommend the town hold a referendum election at the next town election,” said Mullen. “If the vote fails, we would have plenty of time to pass zoning restrictions at a future Town Meeting prior to Oct. 1, 2018. That is an important date because that is when retailers can apply to the state for a license to sell recreational marijuana.”
If the town rejects banning recreational marijuana dispensaries at the April town election, Mullen said the town can restrict the number of marijuana retailers in town as well as the signage retailers can use in front of their stores by passing a zoning bylaw.
“We cannot completely outlaw recreational marijuana by a Town Meeting vote, but we could impose these reasonable restrictions,” said Mullen.
While local officials are looking to ban or regulate pot shops, Mullen said “under no circumstances can we prohibit marijuana from passing through our community.”
“We cannot prevent the transportation of it, even if its sale, cultivation or manufacture were illegal in Lynnfield,” said Mullen.
In response to a question from Selectmen Chairman Phil Crawford, Mullen said the state Legislature is looking into passing legislation that would allow municipalities to hold referendum votes to “opt in” instead of opting out of the state law.
“In other words, recreational marijuana would be legal in Massachusetts but in any given community, it would be legal to sell it, cultivate it and produce it only if there was a referendum vote to make it legal,” said Mullen. “As someone who wants municipal control, I like that approach much more than what is going on with the referendum vote.”
Crawford asked how federal marijuana laws could be overridden by the Question 4 vote.
Mullen said the passage of recreational marijuana is the “most interesting thing going on in municipal law right now because at the state level, marijuana is increasingly deregulated and yet its possession and sale remain felonies at the federal level.”
“Businesses that are getting into the medical marijuana industry let alone recreational marijuana cannot find banks to do business with because the banks do not want to touch the money because it’s like money laundering,” said Mullen.
“We as a town do not have to fear any liability, criminal or otherwise. No matter what happens in Lynnfield in terms of the referendum vote or a bylaw at Town Meeting, nothing we do will subject the community to liability. But the individuals who buy and sell marijuana or the businesspeople that do business with them have to worry about whether the federal government is going to start enforcing (federal marijuana laws) despite deregulation,” Mullen added.
Crawford noted marijuana becomes legal on Dec. 15 before recreational pot shops can open in 2018. He also noted “there is no Breathalyzer and there is no sobriety test” to determine if someone is driving high.
“I don’t know how the state is going to enforce it,” said Crawford.
Mullen, who also serves as town counsel in Wakefield, said Wakefield Police Chief Rick Smith is “very concerned” because there are no established protocols for determining if someone is operating a motor vehicle under the influence of marijuana.
Crawford said he hopes the state Legislature adopts some regulations for recreational marijuana “to help guide the towns” by the end of the year.
Selectman Chris Barrett expressed his support for banning commercial recreational marijuana establishments in town.
“I want to get this on the ballot as soon as possible,” said Barrett.
Town Administrator Jim Boudreau noted Town Clerk Trudy Reid has engaged in discussions with the Secretary of State’s office about the wording of the ballot question.
“The state is still grappling with how this is going to work,” said Boudreau.
A woman in the audience said many state officials such as Governor Charlie Baker and Attorney General Maura Healey opposed Question 4. She asked, “why can’t we request federal law to be enforced?”
Mullen said federal laws could be enforced, but said the Obama Administration “has chosen not to” enforce federal marijuana laws.
“It’s anybody’s guess what the next administration is going to do,” said Mullen.
