Both sides involved in the dispute over Bourne’s adoption of a prohibition on sales of recreational marijuana have sought a final ruling from the state’s highest court. Both the Town of Bourne and the attorney for the Haven Center have joined an application for direct appellate review by the Massachusetts Supreme Judicial Court.
Bourne Town Counsel Robert S. Troy filed the application with the SJC on Monday, September 13. Benjamin E. Zehnder, the attorney for the Haven Center, joined the application on Tuesday.
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 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 there was a technicality in how the bylaw was approved.
The SJC may approve an application for direct appellate review for several reasons: the case poses first impression or novel questions of law; questions of law are presented concerning the state’s Constitution or the US Constitution that have been raised in a Massachusetts court; or questions are of such public interest that justice requires a final decision by the SJC.
In his application for direct appellate review, Mr. Troy said the case “presents a novel issue of significant public interest.” With regard to the legalization of recreational marijuana, the Haven Center’s appeal poses “a novel question of law that warrants a final determination by the Supreme Judicial Court.”
The Haven Center’s appeal, Mr. Troy said, poses pertinent questions of public interest regarding “the authority of a municipality to regulate issues, including marijuana, under the authority and within the strictures of the Home Rule Charter.”
The filing with the SJC follows Mr. Zehnder’s request to have the case heard by the state Appeals Court. Typically, a case is heard by the Appeals Court and can then be appealed to the SJC by an application for further appellate review.
Mr. Troy explained that a request for direct appellate review means the SJC issues a ruling on the appeal, bypassing the Appeals Court. The SJC’s decision is final, Mr. Troy said, unless one side wants to take the case to the highest court in the land.
“Its decision is final unless a party attempts to appeal the decision to the United States Supreme Court,” he said.
The case centers on a ruling by Barnstable Superior Court Judge Thomas J. Perrino that the town legally enacted a bylaw prohibiting sales of recreational marijuana in Bourne.
The judge subsequently denied the Haven Center’s motion for reconsideration of his decision because it failed to present new evidence or information, or “a particular and demonstrable error” in his original ruling.
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.
Judge Perrino sided with Mr. Troy and issued the ruling for which the Haven Center requested, and was denied, reconsideration.
Judge Perrino’s denial of the request for reconsideration was confirmed in a judgment notice, issued by Scott W. Nickerson, Clerk of the Court for Barnstable County Superior Court, dated June 23. The notice stated that Judge Perrino “ordered, adjudged and declared” that the bylaws of the Town of Bourne “are declared valid.”
If the SJC denies direct appellate review of the case, the matter will be taken up by the Appeals Court, Mr. Troy said. Its decision can then be appealed to the SJC for further appellate review.