The Haven Center, the marijuana retailer looking to open shop in Bourne, has filed an appeal to a recent Barnstable Superior Court ruling in the company’s lawsuit against the town. The court ruled against The Haven Center’s claim that a bylaw prohibiting sales of recreational marijuana in Bourne was illegally enacted.
The Haven Center is the company looking to open a marijuana facility in the former Cartwheels 2 building on MacArthur Boulevard. The company sought to have the court overturn the town’s adoption of a recreational marijuana ban bylaw due to a technicality in how the prohibition 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.
Bourne Town Counsel Robert S. 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, and Superior Court Judge Thomas J. Perrino sided with Mr. Troy.
In its appeal, filed in Barnstable Superior Court on Tuesday, April 20, The Haven Center’s attorney Benjamin Zehnder claimed the court’s ruling focused on only one aspect of the company’s lawsuit, the illegality of how the bylaw was approved. Mr. Zehnder argued that the court ignored two other arguments mentioned in the lawsuit.
The lawsuit against the town claimed that “an outright prohibition on nonmedical marijuana establishments through a general bylaw constitutes an unreasonably impracticable regulation” that violates state law.
The company’s lawsuit also claimed that the bylaw adopted by Bourne “unlawfully prohibits Haven from converting a registered medical marijuana treatment center to a recreational marijuana establishment” in violation of the same state law.
“The arguments were extensively briefed by the plaintiffs, and judgment on any of these three grounds standing alone would be legally sufficient to overturn the general bylaw,” Mr. Zehnder argued.
The appeal requested a reconsideration of the court’s ruling and “a written judgment including a determination of the second and third classes of arguments advanced by plaintiffs.”