LAW OFFICES OF THOMAS A. MULLEN, P.C. 545 SALEM STREET WAKEFIELD, MASSACHUSETTS Telephone: (781) Fax: (781)

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1 Thomas A. Mullen Meredith P. Freed LAW OFFICES OF THOMAS A. MULLEN, P.C. 545 SALEM STREET WAKEFIELD, MASSACHUSETTS Telephone: (781) Fax: (781) Of Counsel: Cathleen Cavell February 8, 2013 Margaret J. Hurley, Asst. Attorney General Director, Municipal Law Unit Office of the Attorney General 10 Mechanic Street, Suite 301 Worcester, MA Re: Article 11, Wakefield Regular Town Meeting of November 15, 2012 Zoning Bylaw Amendment Prohibiting Medical Marijuana Treatment Centers Dear Ms. Hurley: I am writing in my capacity as Town Counsel for the Town of Wakefield, Massachusetts (the Town ). I appreciate this opportunity to comment on the above-referenced matter. 1. Background. At the state election held on November 6, 2012, the requisite number of Massachusetts voters approved a popular initiative to legalize the dispensing of marijuana for medical purposes from so-called medical marijuana treatment centers. The statute thus approved is set forth in the session laws as Chapter 369 of the Acts of 2012 (the Act ). Such treatment centers must be registered by the Massachusetts Department of Public Health (the Department ). The Act requires that by the end of 2013, the Department shall issue registrations for up to thirty-five non-profit medical marijuana treatment centers, provided that at least one treatment center shall be located in each county, and not more than five shall be located in any one county. Act, 9(C). At a Regular Town Meeting held on November 15, 2012, 1 voters of the Town considered and overwhelmingly passed 2 a zoning bylaw amendment presented as Article 11 of the warrant that would make medical marijuana treatment centers a forbidden use in all zoning districts (the Amendment ). The Amendment is now before your office for approval under G.L. c. 40, The Town s Charter requires the holding of two Regular Town Meetings per year, one in the spring and the other in the fall. Wakefield Home Rule Charter, 2-9(a). These are distinguished from Special Town Meetings which may be held at any time as needed or as required by petition. Id., 2-9(b). 2 Though a 2/3 majority was required by G.L. c. 40A, 5, the actual vote was in excess of 94%.

2 Margaret J. Hurley, Asst. Attorney General February 8, 2013 Page 2 2. Limitations on Power of Disapproval. With the greatest respect to the Attorney General, I begin by noting the limited role of your office in vetting bylaws that have been duly approved by a town, as the Amendment has been. In any review of a town s bylaws, every presumption is to be made in favor of their validity, and... their enforcement will not be refused unless it is shown beyond reasonable doubt that they conflict with the applicable enabling act or the Constitution. Grace v. Brookline, 379 Mass. 43, 49 (1979), quoting Crall v. Leominster, 362 Mass. 95, 102 (1972). Certain specific powers are reserved uniquely to the General Court and denied to municipalities acting on their own, such as the power to dispose of park land and to define felonies, but even a cursory review shows that such limitations are not at issue here. Amend. Art. 2, 7 of the Massachusetts Constitution, as amended by art Local Bylaws Trump Initiative Petitions. The home rule provisions of the State Constitution grant and confirm to the people of every city and town the right of self-government in local matters. Amend. Art. 2, 1. In furtherance of that right, the Constitution provides that [a]ny city or town may, by the adoption, amendment, or repeal of local ordinances or bylaws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court by section eight, and which is not denied, either expressly or by clear implication, to the city or town by its charter. Id., 6 (emphasis added). Since the Act was passed as a popular initiative, and was never enacted by the general court, no inconsistency between the Act and the Amendment could result in the invalidation of the Amendment. Municipalities are guaranteed by the State Constitution the right to self-government, provided only that their bylaws and ordinances not contravene the terms of that Constitution or the laws enacted by the general court. Nothing in either the home rule provisions of the State Constitution, Amend. Art. 2, 1-9, or the provisions concerning initiatives and referenda, Amend. Art. 48, purports to subordinate the home rule rights of communities to laws enacted by popular initiative. Nor is there any constitutional provision defining laws enacted by popular initiative as laws enacted by the general court. To the contrary, the Constitution expressly distinguishes between the [l]egislative power [which] continue[s] to be vested in the general court, and the power which the people reserve to themselves to act by popular initiative, which is the power of a specified number of voters to submit constitutional amendments and laws to the people for approval or rejection. Amend. Art. 48, Pt. 1, Def. The State Constitution treats popular initiative laws and laws enacted by the general court differently in other respects as well. For example, popular initiative laws shall take effect in thirty days after [the] state election [in which they are passed] or at such time after such election as may be provided in such law, Amend. Art. 48, Init. Pt. 5, Init., 1, while [n]o law passed by the general court shall take effect earlier than ninety days after it has become a law, except for emergency laws and laws which may not be made the subject of a referendum petition, Amend. Art. 48, Ref., Pt. 1. Since the express terms of the State Constitution subject town bylaws and city ordinances to laws enacted by the general court and do no such thing with respect to laws enacted by popular initiative, and since the Constitution clearly distinguishes between those two categories of laws, it follows that the

3 Margaret J. Hurley, Asst. Attorney General February 8, 2013 Page 3 Town s Amendment must be upheld even if it may be inconsistent with the terms of the Act, because the Act was passed by popular initiative and not by the General Court. 4. The Amendment Is Neither Precluded Nor Pre-empted by the Act. Even assuming that the Act can be equated with laws enacted by the general court, it cannot be made the basis of an invalidation of the Amendment. In order to strike down a local enactment as inconsistent with state law, either the legislative intent to preclude local action must be clear, Bloom v. Worcester, 363 Mass. 136, 155 (1973), or that intent may be inferred [from] legislation [which] deals with a subject comprehensively, Amherst v. Attorney General, 398 Mass. 793, 797 (1986). On its face the Act does not purport to preclude local action. The draftsmen of the Act had plenty of examples of preclusive legislation on which to model a clear prohibition of municipal action, and chose to follow none of them. They could, for example, have used language like that in G.L. c. 40A, 3, which wholly forbids towns and cities from using zoning bylaws to regulate matters covered by the state building code, or like that in G.L. c. 131, 45, which permits bylaws and ordinances regarding the use of sea planes on great ponds but only if such local legislation shall be first approved by the Massachusetts aeronautics commission. Instead, the Act does not address a single word to the questions of whether and to what extent municipalities may legislate concerning medical marijuana treatment centers. Nor is the Act so comprehensive as to compel the conclusion that the Amendment is inconsistent with state law. Indeed, the Act is unique among Massachusetts statutes in conceding the possibility that it may be wholly displaced and mooted by other, existing law. It expressly does not purport to give immunity under federal law and it states on its face that it poses [no] obstacle to federal enforcement of federal law. Act, 7(F & G). Further, this is not a case where a dense web of interlocking statutes leaves no room for local action. To the contrary, the Act is the only statute concerning medical marijuana treatment centers and it leaves a host of practical issues unresolved. For example, nothing in the Act addresses the question of where in a community such a center may be located, and therefore nothing suggests that a town would run afoul of state law in requiring that it be no less than a certain distance from schools, or be located only in an industrial district or a commercial district. The Act is silent concerning signage, parking, loading areas, setbacks, and hours of operation all issues that municipalities might severally regulate. The mere fact that the Act regulates medical marijuana treatment centers does not mean that cities and towns are forbidden from doing so as well. The existence of legislation on a subject... is not necessarily a bar to the enactment of local ordinances and by-laws exercising powers or functions with respect to the same subject. If the State legislative purpose can be achieved in the face of a local ordinance or by-law on the same subject, the local ordinance or by-law is not inconsistent with the State legislation, unless the Legislature has expressly forbidden the adoption of local ordinances and by-laws on that subject. Bloom, supra, 363 Mass. at 155. In general, in a field which the Commonwealth has chosen to regulate, municipalities are free not just to do the same but also to impose an outright ban. Thus in Amherst v. Attorney

4 Margaret J. Hurley, Asst. Attorney General February 8, 2013 Page 4 General, 398 Mass. 793 (1986), the town was held entitled to prohibit the discharge of certain fire arms despite a welter of state laws concerning hunting and guns; in Marshfield Family Skateland, Inc. v. Marshfield, 389 Mass. 436 (1983), the town was allowed to ban coin-operated amusement devices despite a state law, G.L. c. 140, 177A, concerning the licensing of such machines; and in John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 369 Mass. 206 (1975), the town was permitted to bar off-premises signs despite the regulatory authority over such signs granted by G.L. c. 93, to the Outdoor Advertising Board. The Town itself has long forbidden trucking terminals from locating in any zoning district despite federal and state regulation of trucks and trucking. Wakefield Zoning Bylaw, (Table of Uses). Saying nothing to preclude local regulation, and leaving numerous issues open to further regulation, the Act invites action by cities and towns. Since communities are generally free to prohibit that which they have the power to regulate, it follows that the ban established by the Amendment is not unlawful The One-Center-Minimum Requirement. The Act requires that the Department issue at least one registration for a medical marijuana treatment center in each county by the end of this year. Critics of the Amendment ask, if the other 53 cities and towns in Middlesex County were to enact the same ban that the Town did, would that not frustrate the purpose of the Act? The question both ignores reality and reverses the burden of proof. The City of Malden (which, like the Town, lies within Middlesex County) recently passed a zoning amendment permitting medical marijuana treatment centers in the industrial district by special permit. Since a board may not refuse to issue a permit for reasons unrelated to the standards of the by-law for the exercise of its judgment, Slater v. Board of Appeals of Brookline, 350 Mass. 70, 73 (1966), and any refusal is subject to reversal if it is based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary, Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483, 486 (1979), Malden has thus committed itself to allowing such centers where all the requirements of the ordinance are met. While I have no statistics at hand, I believe it remains true that most communities in Middlesex County have not yet legislated concerning medical marijuana treatment centers at all, meaning that no prohibitions exist in such cities and towns. Given the availability of sites for such centers elsewhere in the county, a prohibition in the Town cannot frustrate the purpose of the Act. In any event, to demand that the Town justify its Amendment under every hypothetical circumstance would turn the legal analysis of zoning bylaws on its head. Every presumption is to be indulged in favor of a by-law. Concord v. Attorney General, 336 Mass. 17, 25 (1957). Properly phrased, the question should be: assuming that every other community in Middlesex County welcomed medical marijuana treatment centers, would it frustrate the purpose of the Act for the Town to forbid them? I submit that it could not. 6. Substantial Planning Purposes Support the Amendment. Some months ago you were kind enough to discuss this matter with me, and you raised a concern about the applicability 3 Of course, municipalities may not ban Constitutionally protected uses, such as adult uses which are shielded from prohibition by the First Amendment. No First Amendment or other Constitutional protection is at issue here.

5 Margaret J. Hurley, Asst. Attorney General February 8, 2013 Page 5 of Zuckerman v. Hadley, 442 Mass. 511 (2004). In that case, the town enacted a zoning restriction on the rate of development, in effect limiting the number of building permits that could be granted each year. The Court held that such a bylaw, unmoored to any attempt to enact a comprehensive planning scheme and unlimited in duration, lacked a valid zoning purpose and therefore was illegal. The bylaw in that case sought to reallocate population growth from one town to another, and impose on other communities the increased burdens that one community seeks to avoid. Id., 442 Mass. at 519. In essence, the Court stated, not-in-my-backyard is not a valid planning purpose. I do not deny that some residents of the Town shrink from what they perceive (correctly, I would say) to be the likely secondary effects of allowing one or more medical marijuana treatment centers to do business within the Town s borders. Those effects have been well documented for you by others who have commented on the Amendment, so I will not duplicate their efforts. I do want to make clear, however, that the Amendment has a sound basis in planning, a fact (among others) distinguishing the Amendment from the rate of development bylaw in Zuckerman. The Town s prohibition is based not just on a desire to avoid untoward secondary effects but also on a well-founded belief that good planning principles dictate that the Town not be one of the handful of places in the county to contain a medical marijuana treatment center. 4 In addition to requiring at least one registration for such a center in each county this year, the Act limits the total number in any county to five. If the 1.5 million people in Middlesex County are to be serviced by not more than five centers, where do sound planning principles suggest they be? My own list of criteria would go something like this: communities with hospitals should be favored over those without; municipalities that have good public transportation over those that do not; large population centers over smaller ones; and cities or towns that are either centrally located, or central within geographical sub-parts of the county, over those that are peripheral. By all of these criteria, the Town is a poor candidate to host a medical marijuana treatment center. It has no hospital (unlike nearby Malden and Melrose). The Orange Line goes through Malden, dead-ends in Melrose, and does not touch the Town. At less than 25,000, the Town s population hardly puts it near the top of the list. And hugging the extreme eastern border of the county, where it shares a state representative district with three 4 Nothing herein is meant to suggest that the motives of individuals who voted for or against the Amendment are relevant to your legal analysis. Neither the Attorney General nor a reviewing court may inquire into such matters, but rather must uphold a challenged bylaw unless the law compels otherwise. A court should not invalidate a legislative decision of a town based upon the alleged motive the town had in enacting the legislation.... If the action is otherwise justified, the actual reason for the enactment, not to mention the motivation of the sponsors of the action, is not relevant. See W.R. Grace & Co.-Conn., 56 Mass. App. Ct. at ( validity of the zoning amendments does not turn on the motives of their supporters ); Hanna v. Framingham, 60 Mass. App. Ct. 420, (2004) ( We undertake no inquiry into the possible motives of the legislative body ). Andrews v. Amherst, 68 Mass. App. Ct. 365, (2007).

6 Margaret J. Hurley, Asst. Attorney General February 8, 2013 Page 6 communities in Essex County and none in Middlesex County, the Town is as far from being centrally located as it could be. 7. Uphold the Amendment With a Caveat if Necessary. It has long been my understanding that your office, consistent with the case law discussed above calling for deference to local legislation, generally approves bylaws even if their application in some circumstances could be problematic. I have received approvals from the Attorney General that were subject to helpful caveats. If you believe that (a) despite the home rule provisions of the State Constitution quoted above, bylaws and ordinances may not be inconsistent with the Act; (b) the Amendment does not currently preclude the Department from fulfilling its duty to issue a single registration this year for a medical marijuana treatment center somewhere in Middlesex County; but (c) under some hypothetical circumstances the Amendment might in the future frustrate the purpose of the Act, then I urge you to approve the Amendment subject to such advice as you may deem appropriate with respect to such future circumstances. Thank you again for this opportunity to comment on the legality of the Amendment. As ever, please feel free to call me any time. Sincerely, TAM/lom cc: Stephen P. Maio, Esq., Town Administrator c:\wakefield\medicalmarijuanabylawletter Thomas A. Mullen

7 THE COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT SUFFOLK, ss. SUPERIOR COURT C.A. No. TOWN OF WAKEFIELD, Plaintiff, v. COMPLAINT MARTHA COAKLEY, in her capacity as ATTORNEY GENERAL, Defendant. Nature of Action 1. This is an action in the nature of certiorari under G.L. c. 249, 4 to contest the decision of the Attorney General to disapprove a town bylaw under G.L. c. 40, 32. Parties 2. The plaintiff is the Town of Wakefield, a Massachusetts municipal corporation having a usual place of business at One Lafayette Street, Wakefield, Massachusetts (the Town ). The Town lies within Middlesex County. 3. The defendant is Martha Coakley, named solely in her capacity as Attorney General of the Commonwealth of Massachusetts, who has a usual place of business at One Ashburton Place, Boston, Massachusetts (the Attorney General ). Facts 4. At the state election held on November 6, 2012, the requisite number of Massachusetts voters approved a popular initiative to legalize the dispensing of marijuana for medical purposes from so-called medical marijuana treatment centers. The statute thus

8 approved is set forth in the session laws as Chapter 369 of the Acts of 2012 (the Act ). Under the Act, such treatment centers must be registered by the Massachusetts Department of Public Health (the Department ). The Act requires that by the end of 2013, the Department shall issue registrations for up to thirty-five non-profit medical marijuana treatment centers, provided that at least one treatment center shall be located in each county, and not more than five shall be located in any one county. Act, 9(C). 5. At a duly called town meeting held on November 15, 2012, voters of the Town considered and passed by the requisite two-thirds vote a zoning bylaw amendment presented as Article 11 of the warrant that would make medical marijuana treatment centers a forbidden use in all zoning districts (the Amendment ). A true copy of the certification of the said article and of the vote thereunder by the town clerk of the Town is attached hereto as Exhibit A. 6. Pursuant to G.L. c. 40, 32, the Attorney General reviewed the Amendment and, on March 13, 2013, gave written notice to the town clerk of the Town of her disapproval thereof, together with a statement of her reasons therefor. A true copy of the Attorney General s notice of disapproval and statement of reasons is attached hereto as Exhibit B. Petition for Certiorari 7. The Town respectfully submits that the Attorney General s disapproval of the Amendment constituted error and that her statement of reasons is insufficient to justify such disapproval. 8. An erroneous disapproval of a town bylaw by the Attorney General is not a proceeding according to the course of the common law, is not reviewable by motion or appeal, and is therefore an appropriate subject of an action in the nature of certiorari. 2

9 9. The Attorney General erred in considering whether the Amendment frustrates the purpose of the Act because, under the Home Rule Amendment of the Massachusetts Constitution, municipal legislation must be consistent with statutes enacted by the General Court but need not be tested for consistency with laws that were passed as popular initiatives. a. The home rule provisions of the Massachusetts Constitution grant and confirm to the people of every city and town the right of self-government in local matters. Mass. Const. Amend. Art. 2, 1 (as amended by Amend. Art. 89). In furtherance of that right, the Constitution provides that [a]ny city or town may, by the adoption, amendment, or repeal of local ordinances or bylaws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court by section eight, and which is not denied, either expressly or by clear implication, to the city or town by its charter. Id., 6 (emphasis added). b. Since the Act was passed as a popular initiative, and was never enacted by the general court, no inconsistency between the Act and the Amendment could result in the invalidation of the Amendment. 10. Even assuming that the Amendment must be consistent with legislation passed by popular initiative as well as that enacted by the General Court, it was error for the Attorney General to conclude that the Amendment would frustrate the purpose of the Act. a. The Act does not, by its terms or by necessary implication, pre-empt municipal legislation concerning the subject matter of medical marijuana treatment centers. b. Since the Act requires only one medical marijuana treatment center in Middlesex County by the end of 2013, and forbids the establishment of more than five, it would 3

10 not frustrate the purpose of the Act to allow one of the fifty-four (54) municipalities in Middlesex County to ban such centers, especially in the face of evidence that other cities and towns are open to the possibility of hosting such centers. c. By disapproving the Amendment on the ground that it would frustrate the purpose of the Act if all of the communities in Middlesex County banned medical marijuana treatment centers, the Attorney General has inverted the proper standard by which to evaluate bylaws. Every presumption is to be indulged in favor of a by-law. Concord v. Attorney General, 336 Mass. 17, 25 (1957). The proper question for the Attorney General to ask is therefore not whether the Act would be frustrated if all other cities and towns in the county banned medical marijuana treatment centers, but rather whether the Act would be frustrated if only the Town did so. 11. The Attorney General also errs in suggesting that the Amendment constitutes an impermissible effort to deflect onto other cities and towns the burdens of compliance with the Act. Given that Middlesex County s 1.5 million residents will be serviced by at most five medical marijuana treatment centers, the Amendment reflects a reasonable legislative determination that the Town is ill-suited to accommodate such a center because of the absence of a hospital within its borders, its limited public transportation, the relatively small size of its population, its peripheral geographical location within the county, and other legitimate concerns. 12. If the Attorney General s disapproval of the Act were to stand, the Town would be forced to accommodate an activity that is illegal under federal law. a. The Act is plainly inconsistent with federal law, which forbids the production, possession and distribution of marijuana. 4

11 b. Under the Supremacy Clause of the U.S. Constitution, Article VI, cl. 2, the federal prohibition of marijuana pre-empts the Act s purported legalization of it for medical purposes. c. Without the Amendment, the Town could be compelled by the Act to permit an activity that constitutes a federal crime. Certain of the Town s personnel could be required to take affirmative steps to support that activity. d. The Town is entitled to resort to reasonable legislation such as the Amendment to avoid having to allow, and to save its employees from even incidental involvement in, an activity that remains criminal under federal law. appropriate. Prayer for Relief The Town respectfully prays that this Court enter judgment as follows: 1. That the Attorney General s disapproval of the Amendment be quashed; 2. That the Amendment be declared a valid, lawful bylaw of the Town; and 3. That the Town be granted such other and further relief as may be just and TOWN OF WAKEFIELD By its attorney, Thomas A. Mullen, Esq. 545 Salem Street Wakefield, Massachusetts (781) BBO No tmullen@thomasamullenpc.com Date: May 7, 2013 c:\wakefield\medicalmarijuanacomplaint 5

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