A Barnstable Superior Court judge has denied a motion by the Haven Center for reconsideration of an earlier ruling that went against the marijuana retailer and in favor of the Town of Bourne. The earlier ruling found that a town bylaw prohibiting sales of recreational marijuana in Bourne was legally enacted.
In his decision, dated June 7, Judge Thomas J. Perrino denied the Haven Center’s motion for reconsideration because they failed to present “changed circumstances such as newly discovered evidence or information.”
The motion for reconsideration, Judge Perrino said, also failed to offer “a particular and demonstrable error in the original ruling or decision.”
Bourne Town Counsel Robert S. Troy said that Judge Perrino’s ruling this week, as is the case with any action taken by a judicial body, “is subject to review by appellate courts.”
Calls to Benjamin Zehnder, the attorney for the Haven Center, for comment on any further appeal his client might attempt, were not returned.
The Haven Center is the company looking to open a marijuana facility in the former Cartwheels 2 building on MacArthur Boulevard. The business owners have said their desire is to sell both recreational and medical marijuana as well as grow and cultivate marijuana on site and manufacture the items they would sell.
The company’s plans hit a snag when Bourne residents approved a recreational marijuana ban bylaw. The Haven Center sought to have the court overturn the town’s adoption of the prohibition. The company claimed a technicality in how the bylaw was approved.
In its lawsuit, the Haven Center contended that the prohibition bylaw, approved in October 2018 and again in October 2019, was adopted improperly because it was approved as a general bylaw, not as a zoning bylaw. A Land Court ruling stated that a subject can be regulated by a general bylaw only if there is no history in the town of the subject being treated under zoning.
The Haven Center argued that approval in May 2017 of a temporary moratorium on recreational marijuana in Bourne was passed as a zoning bylaw. That established the town’s history of regulating marijuana through zoning, the company contended.
Bourne’s ban on recreational marijuana was passed as a general bylaw, the Haven Center’s lawsuit stated. Mr. Troy argued that the temporary moratorium was designed to give the town time to decide whether to adopt marijuana zoning. A moratorium, he said, is not the same as a zoning enactment.
Judge Perrino sided with Mr. Troy and issued the ruling for which the Haven Center requested, and was denied, reconsideration.