LITTLE CHILDREN SCHOOLHOUSE, INC., TMS, INC. d/b/a THE CHILDREN'S BOOK SHOP, THE GOLDEN CHICKPEA CENTER v. TOWN OF BROOKLINE ZONING BOARD OF APPEALS, through JESSE GELLER, et al, in their capacity as members of the ZBA, and NEW ENGLAND TREATMENT ACCESS, INC.

In this action, Plaintiffs challenge a special permit granted by the Brookline Zoning Board of Appeals (ZBA), to New England Treatment Access, Inc. (NETA), permitting the operation of a medical marijuana dispensary (RMD). Subject to other permitting, not here in issue, the special permit allows NETA to operate its dispensary at 160 Washington Street, Brookline (Site). Siting of RMDs are governed in part pursuant to regulations promulgated by the by Department of Public Health (DPH).

The DPH regulation at issue provides:

An RMD shall comply with all local requirements regarding siting, provided however that if no local requirements exist, an RMD shall not be sited within a radius of 500 feet of a school, daycare center, or any facility in which children commonly congregate. The 500 foot distance under this section is measured in a straight line from the nearest point of the facility in question to the nearest point of the proposed RMD. 105 Code Mass. Regs. § 725.110(A)(14) (2013). (DPH Siting Regulation).

In Count I of the two-count Complaint, filed December 2, 2015, Plaintiffs allege the ZBA erred in granting the permit because the location of the Site violates the DPH Siting Regulation. Plaintiff argues that because the Brookline zoning By-laws (By-laws) do not mention facilities “in which children commonly congregate,” the DPH Siting Regulation is the default buffer zone requirement with respect to that type of facility, such as Plaintiff’s place of business, which is located within 500 feet of the Site. Count II of the Complaint seeks a Declaratory Judgment that the DPH’s 500 foot buffer zone regulation applies to the Site.

Two provisions of the Town of Brookline By-laws expressly address the siting of RMDs, setting one buffer zone requirement for elementary and secondary schools, and another for day care centers. Under § 4.12(2)(b), “[a]n RMD shall be located more than 500 feet from an elementary or secondary school, public or private, as measured from lot boundary to lot boundary.” Section 4.12(2)(c) provides: “[a]n RMD shall not be located in a building that contains a day care center.”

The case came before the court for a hearing on March 11, 2016, after both The Golden Chickpea Center and NETA filed motions for summary judgment. For the reasons discussed below, this court rules that local requirements regarding siting of RMDs exist in the By-laws within the meaning of the DPH Siting Regulation and therefore, the provisions of the DPH Siting Regulation no longer apply to the Town of Brookline. Accordingly, under the By-laws, there is no buffer zone requirement prohibiting NETA from locating its RMD at the Site. [Note 1]

SUMMARY JUDGMENT

“Rule 56(c) of the Massachusetts Rules of Civil Procedure provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles them to judgment as a matter of law. Kourouvacilis v. G.M. Corp., 410 Mass. 706 , 711 (1991).

However, when the court is faced with cross motions, as is the case here, it must analyze the parties' legal positions at the summary judgment stage guided by which party has the burden on the issues before the court. Each moving party bears the burden of affirmatively demonstrating the absence of triable issues of fact and its entitlement to judgment as a matter of law. Lev v. Beverly Enterprises– Massachusetts, Inc., 457 Mass. 234 , 237 (2010). The cross motions before the court are ripe for summary judgment because the material facts are not in dispute and the case may be decided based on applicable law.

MATERIAL FACTS

The summary judgment record includes the parties’ briefs and submissions. The record establishes the following material facts which are not in dispute:

Parties

1. Plaintiff The Golden Chickpea, LLC, d/b/a the Golden Chickpea Center is a parent-child recreation and learning facility located at 224 Washington Street, Brookline, MA 02445. [Note 2]

2. The Golden Chickpea Center holds several child-related events each week, and approximately 150 children per week attend these classes and structured playtimes.

3. The Brookline Zoning Board of Appeals, whose members are Defendants, is the duly constituted board of appeals of the Town of Brookline, Massachusetts, with its principal offices at 333 Washington Street, Brookline, MA 02445.

4. Defendant New England Treatment Access, Inc. is a nonprofit corporation that operates medical marijuana dispensaries. Its principal place of business is 5 Forge Parkway, Franklin, MA 02038.

The 2013 Act and the DPH Regulations

5. Pursuant to Chapter 369 of the Acts of 2012, the Commonwealth enacted “An Act for the Humanitarian Use of Marijuana” (Act) which decriminalized the sale and use of medical marijuana at RMDs. The Act authorizes the DPH to issue regulations for the implementation of certain sections of the Act.

6. In May 2013, the DPH promulgated regulations pursuant to the Act.

7. The regulations authorize municipalities to regulate the medical use of marijuana, as long as the local regulation does not conflict or interfere with the DPH regulations.

8. One such regulation establishes a default buffer zone relating to the siting of RMDs in proximity to child centered locations for towns which have not established their own buffer zones.

9. This default buffer zone is 500 feet from a school, daycare center, or any facility in which children commonly congregate. (DPH Siting Regulation).

10. In August of 2015, the DPH updated its “Guidance for Municipalities Regarding the Medical Use of Marijuana.” Regarding the buffer zone, the DPH stated: “Municipalities may set their own buffer zone, but if they do not, the default buffer zone will be the 500 foot distance described in the [DPH Siting Regulation.]”

The Town By-laws

11. On November 19, 2013, Brookline adopted zoning requirements relating to the siting of RMDs in the town.

12. The adopted zoning requirements established a 500 foot buffer zone that applies to elementary and secondary schools, public or private, while also requiring that an RMD not be located in the same building as a day care center. Town meeting did not adopt any buffer zone with respect to facilities “in which children commonly congregate,” and the By-laws are silent with respect to buffer zones between such facilities and RMD sites.

NETA’s Application for a Special Permit

13. The Site where NETA proposes to operate an RMD is at the corner of Boylston Street (Route 9) and Washington Street, in the G-2.0 General Business Zoning District.

14. The Site is located in a neighborhood that includes The Golden Chickpea Center. [Note 3]

15. NETA applied to the Brookline Building Commissioner for permission to use the Site as an RMD in 2014. The Building Commissioner denied that application.

16. In 2015, NETA applied to the ZBA for a special permit to use the Site as an RMD.

17. Prior to a public hearing by the ZBA, the Planning Board reviewed NETA’s site plan and special permit request and recommended its approval.

18. The Board held public hearing on NETA’s application and revisions on April 23, 2015, July 21, 2015, August 27, 2015, and October 8, 2015.

19. At the October 8, 2015 session of the public hearing, the ZBA voted to grant a special permit to NETA for an RMD at the Site subject to eight special conditions.

20. On November 13, 2015, the ZBA issued its written decision granting NETA a special permit for an RMD at the Site, with the same conditions. The ZBA’s decision was filed with the Town Clerk the same day.

21. On December 2, 2015, Plaintiffs filed this case appealing the decision of the ZBA to grant the special permit.

22. On December 22, 2015, the Brookline Board of Selectmen voted to issue a license authorizing NETA to operate an RMD at the Site.

* * * * * *

INTERPRETATION OF THE TOWN BY-LAWS AND THE DPH REGUALTIONS

A. The By-laws

NETA urges the court to consider aspects of the legislative history (and post-adoption action of the town) that supports its interpretation of the By-laws. It points to statements made at public hearings leading up to the town meeting vote adopting the By-laws as well as failed attempts to amend the By- laws as evidence that the town considered and expressly rejected adopting the DPH default buffer zone for facilities “in which children commonly congregate.” Plaintiff argues that because the By-laws are clear and do not reach the subject of facilities in which children commonly congregate, a discussion of legislative history is inappropriate.

When the meaning of the language of a by-law is plain and unambiguous, the court will enforce it according to its plain wording unless a literal construction would yield an absurd or unworkable result. Shirley Wayside Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass. 469 , 477 (2012). Here the By-laws are plain and unambiguous, so there is no need to delve into the legislative history behind the By-laws beyond the context of the DPH Regulations and the fact the By-laws provisions were adopted by town meeting.

It is a principle of interpretation that express mention of one matter excludes by implication other similar matters not mentioned. Bd. of Selectmen of Hatfield v. Garvey, 362 Mass. 821 , 824 (1973). The plain language of the By-laws provide for a 500 foot buffer zone between an RMD and “an elementary or secondary school (public or private),” and further that RMDs “shall not be located in a building that contains a daycare center.” Both schools and daycare centers are specific examples of places in which children commonly congregate, but, unlike the DPH Siting Regulation, the By-laws do not mention any buffer zone from the general category of facilities in which children commonly congregate. Where an omission from a statute has been intended, no court can supply it; if the omission was due to inadvertence, an attempt to supply it would be tantamount to adding to a statute a meaning not intended by the Legislature. Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 479 (1986). The town vote itself is evidence that the omission of a buffer zone for facilities in which children commonly congregate was intentional. [Note 4] The question therefore is whether the Town’s adoption of buffer zones for certain schools and for daycare centers but not for facilities in which children commonly congregate, leaves intact the 500 foot buffer zone provision of the DPH Siting Regulation for such facilities. This court holds that it does not.

B. DPH Siting Regulation: 105 Code Mass. Regs. § 725.110 (A)(14) (2013)

The motions for each side rely upon different interpretations of the language of the DPH Siting Regulation. The Golden Chickpea Center argues the regulation should be read to require a default buffer zone of 500 feet between an RMD and each type of facility mentioned in the regulation. Therefore, it argues, Brookline’s adoption of its By-laws concerning the buffer zone around certain schools and daycare centers only did not affect the DPH regulation’s default buffer zone concerning facilities in which children commonly congregate.

NETA asserts that the DPH Siting Regulation is discarded once any siting requirement concerning RMDs is adopted by a municipality. Accordingly, it argues, the Town was within its right to choose, and did choose, to fully replace the provisions of the DPH Siting Regulation with its By-laws establishing buffer zones for some schools and for daycare centers but not for facilities in which children commonly congregate. [Note 5]

Duly promulgated regulations of an administrative agency are presumptively valid and must be accorded all the deference due to a statute. Pepin v. Division of Fisheries and Wildlife, 467 Mass. 210 , 221 (2014). A regulation is interpreted in the same manner as a statute… thus we accord the words of a regulation their usual and ordinary meaning. Beverly Port Marina, Inc. v. Comm'r of Dep't of Envtl. Prot., 84 Mass. App. Ct. 612 , 620 (2013).

Each party urges this court to parse the DPH Siting Regulation in a certain way. By way of service to municipalities, the DPH has issued “Guidance for Municipalities Regarding the Medical Use of Marijuana.” In interpreting the language “an RMD shall comply with all local requirements regarding siting, provided however that if no local requirements exist, an RMD shall not be sited within a radius of 500 feet of a school, daycare center, or any facility in which children commonly congregate,” it instructs: “[m]unicipalities may set their own buffer zone, but if they do not, the default buffer zone will be the 500 foot distance described in the Regulations.”

The Guidance makes clear that in the DPH Siting Regulation, the phrase “provided however that if no local requirements exist” is referring to local requirements concerning a buffer zone. NETA has argued that a municipality’s adoption of any siting requirements respecting RMDs would supplant the buffer zones set forth in the DPH Siting Regulation. In this case, the court does not need to interpret the language so expansively. In this court’s view, the language of the DPH Siting Regulation, informed by the guidance set forth above, instructs that the regulation remains in place until a municipality adopts its own buffer zones respecting the siting of RMDs relative to child centered facilities. Once the municipality has done so, as Brookline did, the buffer zone does not default to the DPH Siting Regulation.

Substantial deference to the expertise and statutory interpretation of the agency charged with primary responsibility for administering a statute is required. Zoning Bd. of Appeals of Amesbury v. Hous. Appeals Comm., 457 Mass. 748 , 760 (2010). The court will “‘only disturb’ the agency’s interpretation if it is ‘patently wrong, unreasonable, arbitrary, whimsical, or capricious.’” Goldberg v. Bd. of Health of Granby, 444 Mass. 627 , 636 (2005). Requiring a municipality to establish its own buffer zone before the buffers set forth in the DPH Siting Regulation is discarded is not an unreasonable reading of the DPH Siting Regulation. The DPH intended to establish a default buffer zone until municipalities could decide upon their own, if they so chose. Such an interpretation allows municipalities to have the most control over where RMDs will be located, given the differing needs of diverse communities, while at the same time creating a default for municipalities that have not yet acted on the issue. This is consistent with the fact that municipalities may not prohibit the siting of RMDs entirely. See Attorney General Municipal Law Unit Decision No. 6601, dated March 13, 2016. Accordingly, The Golden Chickpea Center’s Motion for Summary Judgment is DENIED and Defendant NETA’s Cross Motion for Summary Judgment is ALLOWED.

So ordered.