ELLEN ROSENFELD, Trustee of THE ELLEN REALTY TRUST, and COMMCAN, INC. v. THE TOWN OF MANSFIELD, MASSACHUSETTS

The recent legalization of the sale of marijuana in the Commonwealth pursuant to G.L. c. 94G has inevitably led to disputes in the application of the new statute. The evident intention of the Legislature to enable establishments already lawfully engaged in the dispensation of so-called "medical marijuana" to convert to the sale of "recreational marijuana" without being prohibited from doing so by local zoning laws is the subject of the current dispute. The plaintiffs, the holders of a state-issued provisional license and a locally issued special permit, both for the dispensation of medical marijuana, seek a determination pursuant to G. L. c. 240, §14A that the town of Mansfield may not use its zoning bylaw to prohibit the conversion of the plaintiffs' licensed medical marijuana facility to one for the general sale of marijuana to adults. The plaintiffs filed a motion for summary judgment, and the town filed an opposition asking the court to deny the plaintiffs' motion and to instead grant summary judgment to the town. The parties appeared before the court for a hearing on the pending motion on March 5, 2020. For the reasons stated below, the plaintiffs' motion for summary judgment is ALLOWED, and judgment will enter declaring that the town of Mansfield may not use its zoning bylaw to prohibit the sale of marijuana to adults pursuant to G. L. c. 94G at the plaintiffs' property.

FACTS

The following material facts are found in the record for purposes of Mass. R. Civ. P. 56, and are undisputed for the purposes of the pending motions for summary judgment: [Note 1]

1. Plaintiff Ellen Rosenfeld, as Trustee of the Ellen Realty Trust, ("Rosenfeld") is the owner of property at 611 West Street in Mansfield, ("Property") pursuant to a deed recorded with the Bristol County Registry of Deeds in Book 24603, Page 23 on August 7, 2018. [Note 2]

2. CommCan, Inc. is a Massachusetts corporation, incorporated as a non-profit business corporation in 2015, and converted to a for-profit corporation in May, 2018. Ellen Rosenfeld is the president of CommCan. [Note 3]

3. The Property is an unimproved parcel of land, and is located in a Planned Business District Zone under the Mansfield Zoning Bylaw. [Note 4] The dispensing of medical marijuana is allowed upon the grant of a special permit in the Planned Business District Zone. [Note 5]

4. On July 12, 2016, CommCan was awarded a Provisional Certificate of Registration by the Department of Public Health Medical Use of Marijuana Program, for the conduct of a Registered Marijuana Dispensary ("RMD") for the dispensing of medical marijuana, to be conducted at the Property. [Note 6]

5. On September 23, 2016, CommCan and the town of Mansfield entered into a Host Community Agreement for the operation of an RMD at the Property.

6. On December 14, 2016, pursuant to an application by Rosenfeld and the then-owner of the Property, the Mansfield Planning Board voted to grant a special permit for the construction and operation of a medical marijuana dispensary at the Property. [Note 7] The Planning Board's decision granting the special permit was filed with the Mansfield Town Clerk on December 15, 2016. [Note 8]

7. An abutting landowner appealed the grant of the special permit pursuant to G. L. c. 40A, sec. 17. [Note 9] A trial in that action was conducted on November 26, 2019, and the Superior Court judge issued a decision on January 2, 2020 affirming the Planning Board's grant of the special permit. Judgment entered dismissing the plaintiff's complaint on January 9, 2020. The plaintiff filed an appeal, which remains pending.

8. CommCan and Rosenfeld have not begun construction of a building at the Property, nor have they otherwise conducted any actual dispensary operations at the Property, because of the pending appeal of the special permit. Even if CommCan wished to commence construction with the appeal pending, it would be unable to obtain construction financing because of the pending appeal. [Note 10]

9. On December 15, 2016, the "Regulation and Taxation of Marijuana Act," (the "Act") was enacted, adding, among other provisions, a new chapter 94G to the General Laws. [Note 11] Following amendments, G. L. c. 94G became effective on July 28, 2017, putting in place a procedure to allow the retail sale of marijuana to adults in Massachusetts. [Note 12]

10. On June 7, 2017, apparently in anticipation of the impending legalization of non-medical sales of marijuana to adults, CommCan's attorney sent a letter to the Mansfield Select Board asking for a meeting to discuss authorization to add adult-use, non-medical sales of marijuana to the facility to be constructed at the Property. [Note 13] In the letter, CommCan asserted that its use of the Property for adult-use sale of marijuana was "grandfathered," notwithstanding that non-medical sale of marijuana to adults was not permitted by the Mansfield Zoning Bylaw in the Planned Business District in which the Property was located. [Note 14]

11. The Select Board responded, in a letter dated June 24, 2017, that it was not interested in a meeting, and disagreed with the assertion that the proposed use of the Property was "grandfathered." [Note 15]

DISCUSSION

"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 648. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

I. THIS MATTER IS PROPERLY BEFORE THE COURT PURSUANT TO G. L. c. 240, §14A.

The town argued at the hearing of this matter (but not in its written opposition) that the court has no jurisdiction to hear the plaintiffs' complaint pursuant to G. L. c. 240, §14A because CommCan, the licensee and operator of the proposed marijuana facility to be operated at the Property, is not the owner of the Property. This argument neglects the fact that the owner of the Property, Ms. Rosenfeld, in her capacity as Trustee of the Ellen Realty Trust, is also a plaintiff. G. L. c. 240, §14A provides in relevant part,

[t]he owner of a freehold estate in possession in land may bring a petition in the land court against a city or town wherein such land is situated, which shall not be open to objection on the ground that a mere judgment, order or decree is sought, for determination as to the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A or under any special law relating to zoning, so called, which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land, or any part thereof, or of present or future structures thereon, including alterations or repairs, or for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement or development of such land by the erection, alteration or repair of structures thereon or otherwise as set forth in such petition. The court may make binding determinations of right interpreting such ordinances, by-laws or regulations whether any consequential judgment or relief is or could be claimed or not.

Accordingly, G. L. c. 240, §14A permits "the owner of a freehold estate" to obtain a judgment from the Land Court as to the validity of a municipal zoning ordinance or bylaw, or as to the extent to which the land of the owner is affected by the application of a bylaw to a proposed use or development of such land. This is exactly the relief sought by Rosenfeld, who, as owner of the Property, is entitled to a "binding determination" of the extent to which the town may invoke its zoning bylaw to prohibit the proposed use of the Property for sale of marijuana to adults, notwithstanding the prohibition against such use in the zoning district in which the Property is located.

The present complaint violates neither the prohibition against the use of the statute to avoid exhaustion of administrative remedies, Whitinsville Retirement Society, Inc. v. Town of Northbridge, 394 Mass. 757 , 762-763 (1985), nor the prohibition against litigation of merely hypothetical claims. Hansen & Donahue, Inc. v. Town of Norwood, 61 Mass. App. Ct. 292 , 296 (2004). Like the plaintiff in Gamsey v. Building Inspector of Chatham, who sought a determination of the validity of a zoning requirement for a special permit in order to convert rental units to condominium units, the plaintiff here is not required to exhaust administrative remedies, because she seeks a determination with respect to the validity of the prohibition of a specific use by the zoning bylaw as applied to her property. 28 Mass. App. Ct. 614 , 616 (1990).

II. THE TOWN MAY NOT USE ITS ZONING BYLAW TO PROHIBIT THE SALE OF MARIJUANA PURSUANT TO G. L. c. 94G AT THE PROPERTY.

The nub of the dispute between the parties is their disagreement whether CommCan is "engaged" in the cultivation or sale of medical marijuana so as to come within the grandfathering provision of G. L. c. 94G, §3(a)(1). Section 3(a)(1) provides in relevant part as follows:

(a) A city or town may adopt ordinances and by-laws that impose reasonable safeguards on the operation of marijuana establishments, provided that they are not unreasonably impracticable and are not in conflict with this chapter or with regulations made pursuant to this chapter and that

(1) govern the time, place and manner of marijuana establishment operations and of any business dealing in marijuana accessories, except that zoning ordinances or bylaws shall not operate to (i) prevent the conversion of a medical marijuana treatment center licensed or registered not later than July 1, 2017 engaged in the cultivation, manufacture or sale of marijuana or marijuana products to a marijuana establishment engaged in the same type of activity under this chapter . . .

The town contends that the plaintiffs, although they hold a state license to operate a medical marijuana dispensary and a special permit for a medical marijuana dispensary, are not "engaged" in the sale of medical marijuana within the meaning of the statute because they have not yet constructed the building authorized by the license and the special permit, nor commenced the actual sale of medical marijuana at the Property. The parties agree that the reason the plaintiffs have not proceeded with the construction and operation of the authorized facility is the appeal of the special permit filed by an abutter to the Property in Superior Court. Although the case has been tried and decided, the decision of the Superior Court, favorable to CommCan and Rosenfeld, is on appeal and is not yet final.

The town, while acknowledging the pendency of the case in Superior Court, notes that an owner whose special permit has been appealed is entitled to build and commence the authorized use at risk while an appeal is pending. See G. L. c. 40A, §11, 7th par. (holder of duly issued special permit subject to appeal may build at risk that court will order the work undone). At argument, the parties agreed that the reason the project has not moved forward with actual construction and sales is the pending abutter appeal, and Rosenfeld cites her affidavit filed in Superior Court, stating that even if she were intent on going forward at risk with the pending appeal, she would be unable to obtain construction financing until the appeal is finally resolved in her favor.

The town does not dispute this claim, nor could it credibly do so. "A great many things are possible . . . but not practical." [Note 16] The court acknowledges and accepts as an undisputed fact the practical impossibility of obtaining construction financing and going forward with construction "at risk" during the pendency of the appeal of the special permit. The court takes judicial notice that no responsible bank or other financing entity would authorize construction financing under such circumstances, and no responsible applicant would proceed at risk even if financing were not an issue. The question, then, under these acknowledged circumstances, where the pending appeal prevents CommCan from physically completing its facility and commencing actual operation of the dispensary, is whether CommCan is "engaged" in the cultivation or sale of medical marijuana at the Property within the meaning of G. L. c. 94G, §3(a)(1).

In interpreting the meaning of the word "engaged" in the statute, "the statutory language is the principal source of insight into legislative purpose." Bronstein v. Prudential Ins. Co. of Am., 390 Mass. 701 , 704 (1984). "We ordinarily begin with the plain language of the statute . . . 'When a statute does not define its words[,] we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose.'" Drake v. Town of Leicester, 484 Mass. 198 (2020) (slip op. at 4) (internal citation omitted).

"When a statute is 'capable of being understood by reasonably well-informed persons in two or more different senses,' it is ambiguous." Meyer v. Nantucket, 78 Mass. App. Ct. 385 , 390 (2010), quoting Falmouth v. Civil Serv. Comm'n, 447 Mass. 814 , 818 (2006). Using principles of statutory construction to interpret its meaning, the court looks "to the intent of the Legislature 'ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.'" DiFiore v. American Airlines, Inc., 454 Mass. 486 , 490 (2009), quoting Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360 , 364 (1975).

The plain meaning of the language in the statute, including the use of the word "engaged," is not on its face ambiguous. To be "engaged" in an activity is to be "involved in activity; occupied; busy." Merriam-Webster Dictionary. The town does not contend otherwise, but argues that unless the plaintiffs have actually constructed the building authorized by their special permit, and commenced the distribution of medical marijuana, then they are not "engaged" in that activity. This is too narrow a view of the authorized activity. The commencement of the actual sale of marijuana at the Property cannot occur until a number of hurdles have been overcome by the plaintiffs. Those hurdles include authorization to conduct a medical marijuana facility by the issuance of a provisional license, the signing of a host community agreement, the issuance of a special permit, the construction of the facility, the final inspections necessary to authorize the commencement of sales, and finally, the commencement of actual sales. The plaintiffs, without dispute, have obtained the necessary provisional state license (which would be converted to a final license upon the completion of construction and inspection of the completed facility); they have signed a host community agreement with the town; they have obtained a special permit, subject to the pending appeal; and they have actively litigated the appeal that is otherwise preventing them from physically moving forward with construction. In short, they have actively and continuously moved forward in their efforts to exercise the rights granted by their license. This constitutes being "engaged" in the activities authorized by their provisional license, as the plaintiffs have been "involved in [the] activity" of, "occupied" with, and "busy" with commencing the sale of marijuana - by obtaining a host community agreement and a special permit, and by actively opposing the abutter appeal of the grant of their special permit, so as to permit them to proceed with the physical construction of the project and the commencement of sales.

In strikingly similar circumstances, the developer of two related multi-family housing developments - one market rate, and one a G. L. c. 40B affordable housing development - was found to have "exercised" its rights under a use variance within the one-year requirement of G. L. c. 40A, §10, [Note 17] even though it had not commenced construction within a year of the grant of the variance. In Green v. Zoning Bd. of Appeals of Southborough, 96 Mass. App. Ct. 126 (2019), a developer was granted a use variance to construct a multi-family housing development, subject to a condition that the variance would not be effective until approval of a related affordable housing development. The comprehensive permit for the affordable housing development was not issued for another fifteen months, and a neighbor sought a declaration that the use variance had lapsed by reason of not having been exercised within one year. The Appeals Court held that the developer had indeed "exercised" its rights under the use variance by actively pursuing those activities necessary to get the project to a point where construction could begin, including redesigning the project in accordance with an agreement with other neighbors and by pursuing approval of the comprehensive permit that was related to the part of the project for which the variance had been granted. Id. at 132.

Just as the developer in Green "exercised" its variance by pursuing the related comprehensive permit necessary to proceed with its entire project, the plaintiffs have "engaged in the cultivation, manufacture or sale of marijuana" by pursuing the activities necessary to commence the sale of medical marijuana at the licensed dispensary, including the active litigation of the claims of an abutter seeking to annul the special permit necessary to the operation of the licensed dispensary. Accordingly, since the plaintiffs are thus "engaged in the cultivation, manufacture or sale of marijuana" within the meaning of G. L. c. 94G, §3(a)(1), they are entitled to the benefits of the prohibition in the statute against the application of any zoning ordinances or bylaws that operate to prevent the conversion of a licensed medical marijuana dispensary to an establishment for the sale of marijuana to adults pursuant to G. L. c. 94G.

CONCLUSION

For the reasons stated above, the plaintiffs' motion for summary judgment is ALLOWED.

Judgment will enter accordingly.