Bourne Town Hall

Bourne Town Hall

The Massachusetts Supreme Judicial Court has agreed to review the case involving the Haven Center and a prohibition bylaw banning retail sales of recreational marijuana in the Town of Bourne.

An email from the SJC to Bourne Town Counsel Robert S. Troy and Benjamin E. Zehnder, attorney for the Haven Center, dated Wednesday, October 20, announced that “the applications for direct appellate review were allowed.”

The Town of Bourne and the Haven Center joined an application for direct appellate review by the SJC. Mr. Troy filed the application with the SJC on September 13, and Mr. Zehnder joined the application the following day.

In an emailed response, Mr. Troy said the SJC will review the decision of the Barnstable Superior Court that affirmed the validity of Bourne’s prohibition on recreational marijuana sales. The invalidity of the bylaw was the basis of an appeal by the Haven Center.

“The SJC decision will likely be a precedent-setting ruling,” Mr. Troy said, “interpreting the powers that cities and towns have to adopt local regulations under the Home Rule Amendment to the Massachusetts Constitution.”

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 to grow and cultivate marijuana on-site and to manufacture the items they would sell.

The company’s plans hit a snag when Bourne residents approved a bylaw banning the sale of recreational marijuana. The Haven Center sought to have the court overturn the town’s adoption of the prohibition. The company claimed there was 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’s 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, and Judge Thomas J. Perrino sided with Mr. Troy. The Haven Center subsequently requested that Judge Perrino reconsider his ruling. The judge denied the request, citing a lack of new evidence or information revealing an error in his judgement.

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