Anti-marijuana advocates have responded to the news that the Town of Bourne has prevailed in a lawsuit challenging a prohibition on retail sales of recreational marijuana within the town’s borders. Opponents of legalized marijuana have expressed appreciation for the ruling but continue to chide town officials for ignoring the will of the people.
In an email dated April 15, Bourne Town Counsel Robert S. Troy announced that a request by the Haven Center for summary judgment in its lawsuit against the Town of Bourne had been denied in a Barnstable Superior Court ruling.
The Haven Center is the company looking to open a marijuana facility in the former Cartwheels 2 building on MacArthur Boulevard. The company was looking 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.
Mr. Troy praised the court’s determination as “the first judicial decision upholding a Massachusetts community’s prohibition on recreational marijuana.”
George A. Seaver of Cataumet is a founding member of the anti-marijuana group Opt Out Bourne. Mr. Seaver expressed gratitude over the court’s ruling but added concerns he has over efforts by town officials “to subvert the Town Meeting vote against retail marijuana.”
Mr. Seaver noted that if passage of zoning regulations had been successful, those standards would have laid the groundwork for the court to rule in the Haven Center’s favor. He added that he remains worried about the possibility that the town will continue its efforts to accommodate the Haven Center, “firstly behind the scenes.”
Thomas R. Barnes of Gray Gables, another outspoken critic of recreational marijuana sales in Bourne, also attacked town officials who, he said, “banded together to attempt to thwart the will of the voters in favor of the marijuana business.”
“The campaign waged by members of several boards, including finance, selectmen and planning, shows how disconnected the elected officials have become from the taxpayers,” Mr. Barnes said.
The Haven Center’s lawsuit was initially filed in Land Court, but Mr. Troy was successful in having the case moved to Superior Court. Mr. Troy said the shift in venue allowed the town to adopt “a novel legal strategy defending the General Bylaw under the Home Rule Amendment to the Massachusetts Constitution.”
In his ruling, Superior Court Justice Thomas J. Perrino stated that residents of Bourne, acting through the town’s legislative body, Town Meeting, “enacted a general municipal bylaw prohibiting nonmedical marijuana use.”
“Doing so constitutes a valid exercise of municipal authority under the Home Rule Amendment, as the General Bylaw is not inconsistent with state law,” Judge Perrino ruled.
The Haven Center first approached the Bourne Board of Selectmen in 2015 about opening a medical marijuana establishment. The company later announced its intention to include recreational marijuana as well as agricultural and manufacturing components to its business.
Anti-marijuana advocates submitted a private petition to the warrant for Special Town Meeting in late March 2018, calling for a bylaw banning retail sales of recreational marijuana in Bourne. The article was defeated, but many residents felt that the explanation as to how they should vote on the measure was confusing.
Later that year, in October, the pot prohibition was again on the Special Town Meeting warrant. Residents voted in favor of the ban by a vote of 415 to 321.
During the same meeting, voters also defeated a proposed new zoning bylaw designed to regulate marijuana businesses in Bourne. Despite earning more affirmative than negative votes, the bylaw article failed to achieve the necessary two-thirds majority needed for passage and did not pass.
At Special Town Meeting in October 2019, the issue was again on the warrant and was hotly debated. An article seeking to establish zoning requirements for recreational marijuana facilities was indefinitely postponed. An article to repeal the prohibition bylaw, banning recreational marijuana retail sales, was defeated.
In its lawsuit, the Haven Center contended that the prohibition bylaw was adopted improperly. A state Land Court ruling from 2018 factored heavily in the Haven Center’s argument. The court ruled that a general bylaw passed in the Town of Charlton to ban recreational marijuana sales was invalid because it was not voted on as a zoning bylaw.
The 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. Charlton had zoning regulations in place for marijuana, which led the state attorney general’s office to disapprove the general bylaw ban.
The Haven Center argued that approval at Annual Town Meeting in May 2017 of a temporary moratorium on recreational marijuana was passed as a zoning bylaw. The moratorium established the town’s history of regulating marijuana through zoning, the company contended, so another zoning article was required to put a ban in place.
Bourne’s ban on recreational marijuana was passed as a general bylaw.
Mr. Troy argued that the state attorney general’s office approved the temporary moratorium to give the town time to decide whether to adopt marijuana zoning. A moratorium, he said, is not the same as a zoning enactment, so it did not constitute the necessary history.
Judge Perrino sided with Mr. Troy. In his ruling, Judge Perrino noted that the moratorium on recreational use that residents approved in 2018 did not establish or put into effect any zoning regulations.
The judge’s ruling stated that the moratorium “did not define recreational marijuana uses or establishments, nor did it define zoning districts for such uses, or regulate whether such use or establishments could be allowed as of right or by special permit.”
“Rather, the moratorium specifically refrained from establishing any regulatory or zoning criteria for recreational marijuana establishments or uses,” the ruling said. “Furthermore, the moratorium’s express purpose was to ‘undertake a planning process to consider amending the zoning bylaw.’ ”
The Haven Center’s original lawsuit also accused the town of failing to negotiate a Host Community Agreement that was in accordance with state requirements. In August 2019, the Haven Center agreed to dismiss the host community agreement counts, with prejudice. That left only the bylaw issue to be resolved.
The complaint was first filed in Land Court and then transferred to Superior Court to settle the host community agreement issue. With that portion of the lawsuit dismissed, the Haven Center sought to have the case transferred back to Land Court.
The Haven Center argued that, under state law, the Land Court has sole jurisdiction to hear zoning bylaw validity matters. Transferal of the case included granting the Superior Court justice the same authority as a Land Court judge, so the motion to move was denied.