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Efforts to restrict medical marijuana spark legal questions

Many area communities are mobilizing in response to the state’s new medical marijuana law — proposing bans on distribution centers, prohibitions against home-growing, stiffer fines for using pot in public, or moratoriums.

But it remains unclear whether attempts to restrict a measure approved by voters statewide will pass legal muster.

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Among the towns pondering some kind of response to the new state law are Acton, Dover, Framingham, Needham, Wayland, Wellesley, and Westborough.

“Even though it was passed overwhelmingly by the voters, I frankly don’t think much attention was paid to it in terms of what would happen next,” said Patricia Cantor, a lawyer with Kopelman & Paige, a firm representing scores of cities and towns.

Because marijuana is illegal at the federal level, she added, it can’t really be compared to other measures to restrict, say, adult video stores, so this is new terrain for local lawyers.

Although the law went into effect Jan. 1, it is largely on hold while the state Department of Public Health devises regulations for implementation. The state agency has until May 1 to come up with those rules, but many cities and towns aren’t waiting.

In Massachusetts towns, any proposed bylaw change, including zoning restrictions, has to go before Town Meeting for approval and then get a green light from the state attorney general’s office.

Already, several communities north of Boston have passed bans, and Wakefield will be the first one to undergo the attorney general’s review, which is required by March 21.

But even if the AG’s office approves it, that doesn’t mean a ban would not face legal challenges, said Cantor, who is also a member of the Massachusetts Bar Association’s public law section.

Westborough will discuss a proposed ban on both dispensaries and cultivation at a public hearing next Tuesday. The measure, which goes before Town Meeting in March, also contains contingency language that would create a small zoning district in the event that bans are prohibited, according to Lester Hensley, chairman of the town’s Planning Board. However, he considers that scenario unlikely.

“Home rule allows a community to decide what occurs in its community,” he said. “We’re acting from a perspective of caution to prevent any potential harm in our community.”

Research in other states has shown problems with crime around dispensaries, diversion of medical marijuana to young people, and even home invasions of people who grow it privately, said Hensley.

Christopher Petrini, the town counsel for Framingham and other communities, said a total ban would be problematic.

“Complete zoning bans of permitted activity are not generally looked favorably upon by the courts,” he said. “It’s more likely that the limitations and the specifications of zoning districts is a more legally defensible approach here. The outright ban — you have the ballot initiative, it’s a law.”

Framingham is putting the final touches on a proposed zoning district for marijuana dispensaries. It would cover some part of Route 9, although the exact boundaries probably won’t be known until Tuesday.

“It’s been authorized by the voters, it’s law in Massachusetts, and like any other land use activity, there are places where it’s appropriate and places where it’s inappropriate,” said Robert Halpin, Framingham’s town manager.

That means dispensaries should be some distance from schools and residential areas, he said, and the Route 9 area is visible and easier to monitor.

But any such zoning would not apply to CannaMed, a California-based medical marijuana evaluation practice that said last month its lease for a Concord Street office in Framingham was terminated by the landlord after some residents and businesses complained. The company said it was looking for another space in town, but has not returned calls seeking comment since its announcement.

CannaMed is a medical practice that would advise patients on prescription eligibility, rather than grow or dispense marijuana, said Halpin.

“Let’s not get too distracted by Canna­Med because any doctor in Massachusetts can do what CannaMed does — they just specialize in it,” he said.

Some towns aren’t sure exactly what they might want to do on zoning.

Acton put a placeholder article on its April Town Meeting warrant, giving local officials a little more time to think about the details, said Town Manager Steven Ledoux.

Dover also has a placeholder article on its Town Meeting warrant.

About 80 communities have increased fines for public consumption since pot was decriminalized in 2008, and Wayland is looking at doing that now, said Heidi Heilman, director of Wayland Cares, a community coalition that targets substance abuse by local youths.

“It sends a message to the community that marijuana use is still illegal,” she said. “It’s a harmful, dangerous drug, and we take it seriously in our community. We don’t want marijuana smoking to be modeled for our children on our town beach.”

At their April Town Meeting, Wayland voters will consider both an increased fine as well as zoning restrictions.

Bruce Bedrick, the CEO of Kind Clinics and Medbox, which has set up an office in Natick, said there’s nothing to fear from medical marijuana.

“This isn’t a drug-driven industry, this is a patient-driven industry,” he said. “The patients and these dispensaries don’t attract a bad crowd. There’s no drug dealing. There’s no crime.”

Several towns, including Needham and Wellesley, have discussed proposing a moratorium to provide extra time for devising local limits or other regulations.

But the Needham Planning Board voted not to sponsor a moratorium on medical marijuana dispensaries and cultivation that was requested by the Board of Selectmen. Instead, the selectmen were scheduled to vote this week on whether to sponsor the moratorium themselves.

In April, Wellesley Town Meeting will vote on a proposed moratorium, to run until June 2014, on medical marijuana dispensaries as well as on a measure prohibiting the public consumption of marijuana.

During its annual meeting last month, the Massachusetts Municipal Association held a session on medical marijuana that was well attended by local officials, said executive director Geoffrey Beckwith.

“We’re advising them to not wait but to go through a methodical process and make a local decision,” he said. “The attorney general, we hope, will recognize that the communities should have the right to say no.”

Globe Correspondent Evan Allen contributed to this report. Lisa Kocian can be reached at lkocian@globe.com. Follow her on Twitter @GlobeLisa­Kocian.
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