Sunday December 23, 2012

B

Berkshire Eagle Staff

PITTSFIELD -- Some Massachusetts municipalities have rushed to block voter-approved medical marijuana dispensaries, but local officials have been content to study and plan while awaiting state-level decisions that will shape how and where the facilities will operate.

Nathaniel Karns, executive director of the Berkshire Regional Planning Commission, said it’s "a bit early" to enact municipal bans on the facilities or other laws until "we know exactly what role the communities will have in the process."

An outright or effective ban -- as at least five communities in the state have considered -- could prove legally unsustainable, he said, making issues such as placement in specific zones and conditions of operation the focus for most local officials in 2013.

Shortly after the marijuana ballot question was approved by voters in November, Wakefield and Reading enacted zoning changes banning dispensaries, while Westborough, Peabody and Tauton considered similar actions. Many communities are weighing zoning amendments.

"It is more a discussion of where this is appropriate, where it is not appropriate," Karns said of the more realistic options for cities and towns.

"It is more a discussion of where this is appropriate, where it is not appropriate," Karns said of the more realistic options for cities and towns.

The establishment of as many as 35 dispensaries in Massachusetts and a system of licensing and oversight was approved overwhelmingly by voters on Nov. 6, with 63 percent in favor.

While the actual licensing of facilities could be delayed until 2014, the next step is for the state Department of Public Health to develop specific regulations for the facilities, and the department has been given 120 days from Jan. 1 to accomplish that task. Most interviewed for this article thought the time frame was too short, and they are pressing for an extension.

Geoff Beckwith, executive director of the Massachusetts Municipal Association, said the overriding concern of MMA members is that more time be allowed before any facilities are licensed.

"In general, we believe cities and towns need more time" to deal with issues raised by "the legalization of medical marijuana, which they have never had to deal with in zoning," he said.

Since town voting on zoning changes likely would be held at annual meetings in May or June, the MMA is seeking at least a six-month delay.

"Other states have taken much longer to implement this," Beckwith said.

State Rep. William "Smitty" Pignatelli, D-Lenox, along with Beckwith and others, said they believe interim state Health Commissioner Dr. Lauren Smith might ask for more time in developing regulations, citing the serious issues the department is dealing with.

Those include the former state drug-lab chemist indicted on charges she deliberately faked test results involved in criminal cases, and a fungal meningitis outbreak traced to a specialty pharmacy. Smith replaced former Commissioner John Auerbach, who resigned in September.

"If she [Smith] says she needs more time, it is in our best interest to allow it," Pignatelli said.

Pignatelli said the department isn’t required to license facilities before 2014, although it could begin that process earlier.

Pittsfield Mayor Daniel L. Bianchi said City Solicitor Kathleen E. Degnan is "looking at all the options" in terms of zoning, and the city is awaiting decisions by the DPH and the Legislature concerning the ground rules for implementation.

"I want it to be a legitimate use and controlled properly," Bianchi said, adding that a good location might be at a medical facility, should one be interested in hosting a dispensary.

Both the mayor and Pignatelli said they have received inquiries about the process for establishing a facility.

State Rep. Gailanne M. Cariddi, D-North Adams, and Rep. Patricia Farley-Bouvier, D-Pittsfield, as well as others interviewed by The Eagle, said a good option might be to allow prescriptions for medical marijuana to be filled at any pharmacy.

"I think they should be directed to pharmacies," Cariddi said. "Pharmacies already have drugs as part of their business, including narcotics, and they are prepared to deal with them."

How many dispensaries might be established in Berkshire County is uncertain, but Beckwith said "the geographic challenges" in Western Massachusetts could mean a lone site in Pittsfield would not prove adequate.

The law would allow the DPH to license 35 facilities, including at least one -- and up to five -- in each county.

Karns said he could envision three in the county, possibly at medical facilities, but siting and other questions likely will be determined by details of the DPH regulations.

He said the regional planning commission hopes to offer comments to the DPH on land-use issues while the state considers the regulations. The commission’s executive committee will discuss the issue next month.

Farley-Bouvier said a change she favors would be a switch from a state identification card system for medical marijuana users to a prescription format for the drug.

She said she has talked with Bianchi and other officials about the issues involved and believes there is a concerted effort to "ensure the city is well-served and well-protected" if a facility locates here.

The nonprofit companies that will seek licenses to operate facilities would also ultimately benefit from thorough, well-formulated regulation, which might take more than the allowed 120 days, she said.

Beckwith said many officials favor the idea of prescriptions for marijuana that could be filled at pharmacies, but other states -- including Connecticut -- have run into opposition with that concept at the federal level.

Matt Allen, executive director of the Massachusetts Patient Advocacy Alliance, which proposed the ballot initiative, said by email last week that his group will work to ensure that the state issues "strict regulations to implement the law in a timely and safe manner."

"The law places strong limitations on dispensaries," he said. "They must be nonprofit, and all employees and board members must pass criminal background checks. The legitimate concern some have about abuse is addressed by the law’s specifics and will be further addressed by DPH regulations."

He added that, in light of the law’s purpose and intent, "Sixty-three percent of Massachusetts voters recognized that thousands of people suffering from debilitating diseases like cancer, AIDS, HIV and others need access to medical marijuana. MPAA opposes any delay in responding to patients’ needs."

In general, Karns said he believes dispensaries might be dealt with in the same way that communities have used zoning to control adult entertainment businesses -- through an overlay zoning district requiring a special permit process that allows resident input and the possibility of denying a plan as unsuitable.

Among zoning proposals under consideration in other areas of the state are buffer zones around schools, parks, churches, youth centers and similar sites, and restriction of facilities in industrial zones and away from residential or retail districts.