Court Announcer: SJC-13029,
Comcann 8V, town of Mansfield.
-: Okay.
Ms. Kawamoto, good morning, Your Honors,
and may it please the court.
Noemi Kawamoto on behalf of the defendant appellant,
the town of Mansfield in this action.
The town has appealed the judgment issued by the land court,
because the judgment lacks those legal and factual support,
and should be reversed for a number of reasons.
First and most importantly,
the land court failed to apply
chapter 93 G section three as written.
The text of that section relevant part
provides that zoning ordinances or bylaws
shall not operate to prevent the conversion
of a medical marijuana treatment center licensed-
-: Before we get to that argument,
can you talk to me about the standing argument?
Because I'm a little bit confused by that.
I'd love to get to that issue,
but is the town still contending
that there's no standing here?
-: Yes, the town is.
I believe that that under chapter 240 section 14A,
it is only the owner of a freehold estate
that can pass standing under this section
to bring an action, and Commcan,
who is the licensee, is not the owner.
However, in addition, under that statute,
there is no cognizable claim here-
-: But Rosenfeld is the owner and she's a party..
-: Correct, but you can't combine the two plaintiffs
in order for them to have standing.
Each plaintiff, separately,
must have standing on its own.
-: [Justice Georges Jr.] Okay.
-: But in addition, under that statute,
there is no cognizable claim here,
because this all the land court did
was look at the validity of a bylaw.
The Wittensville case here is instructive in that
in that case, the court found
that there was no jurisdiction,
because in the orchids discussion,
all the judge ruled was relating to the,
there was no ruling relating
to the determination of the validity or extent
of any municipal zoning ordinance,
bylaw, or a special permit.
In that case, the lower court had declared
that by virtue of a special permit
that certain zoning bylaws did not apply to the plaintiff-
-: Counsel, can I stop you there?
Because it sounds like you're going to the merits,
and not necessarily the issue of jurisdiction,
that is whether the land court
had the power to entertain the claim.
-: Correct.
-: All right, so you're arguing the merits,
you're conceding that the land courts had jurisdiction.
-: No, I do not concede that they had jurisdiction.
-: And so what is your argument
that the land court does not have jurisdiction?
It lacks the power to even address the claim.
-: The land court under section 14,
it only has the power to address
the validity of a zoning bylaw or ordinance.
Here, the land court was applying-
-: Excuse me, can you just slow down just a little bit?
-: I'm sorry. -: I'm having trouble
hearing you, and combined with the velocity of your speech,
I'm having trouble.
-: Yes, I apologize.
Under section 14A, the land court only has the power
to determine the validity of a zoning bylaw or ordinance.
Here, what the land court was doing
was looking at the application of a statute,
when interpreting a statute.
The plaintiffs have attempted to pass this
as an issue concerning the validity of a bylaw,
limiting retail marijuana establishments
to a particular zone in Mansfield,
by claiming the town could not enact a bylaw
that prevents the conversion
of a medical marijuana treatment center
to a retail establishment.
However, section three does not prohibit the town
from enacting such a bylaw.
Chapter 93G section three simply prohibits
a bylaw from operating to prevent the conversion
of a medical marijuana treatment center
to a retail establishment.
In other words, if chapter 94G section three
applies to Commcan,
then Mansfield zoning bylaw regarding retail marijuana
does not apply to Commcan, and to Commcan only.
It does not mean that the bylaw
limiting retail marijuana establishments
to a certain zoning area is invalid.
In fact, that zoning bylaw will be valid
as to all other persons,
meaning that the land court simply
did not have jurisdiction to just interpret the statute,
with no reference to the validity of the zoning bylaw.
-: I must say, I find that argument incredibly confusing,
because it seems
that what the land court was asked to do,
and has power to do is to determine the validity
of the Mansfield's ordinance or bylaw
that precluded the conversion
of the medical marijuana dispensary
to a retail medical marijuana establishment.
Man: Right.
-: And then that was the question being asked
for the land court to determine.
Separate and apart, I understand the town's argument
that in fact, they're allowed to do what they did,
but the determination of the power
of the land court to do this
seems to me beyond question.
-: I disagree with that,
because I don't believe they were ruling
on the validity of the bylaw itself.
The bylaw, I believe remains valid
as to all other persons.
What the land court found
was that the bylaws simply didn't apply to Commcan.
Man: Okay. -: [Chief Justice Budd] Okay.
-: In any case, the land court failed to apply
chapter 93G as written.
Under the statute, it requires three separate things.
It requires that there be a treatment center
that is licensed or engaged-
-: I'm going to ask you to go super, super slow, okay,
and then also, speak into the microphone,
because I really am having trouble hearing
and understanding you.
-: Yes, so under the plain terms of the statute,
several conditions must be met,
in order for the statute to apply.
First, there must be a treatment center
that is licensed or registered no later than July 1st, 2017,
and that is engaged in the sale of marijuana.
All of these things are required.
The land court, however, ignored the words
"engage in the sale of marijuana",
and determined that because the plaintiffs are engaged
in the activities authorized for their provisional license.
-: Counsel, let's get to the heart of that argument.
The engaging in the cultivation, manufacture,
or sale of marijuana.
Is the town's position that the only way
to comply with that language
is that they actually have started construction?
-: Not only started construction,
but have actually engaged in the cultivation,
manufacture, or sale.
-: Okay, now this isn't as if, in this case,
Commcan just sat on their hands,
they've been embroiled in litigation
over the issuance of the permit within the butter.
It actually went to trial and it's on appeal.
So they've done everything that they can,
in which leads to, I know the question about
the judicial notice aspects of this,
but the crux of all of this is they wanted to build,
they tried to build,
they did everything that they could to build.
But then as of right, an abutter filed an appeal,
and that needs to be fully vindicated and decided.
So what else were they to do?
I know when your brief, you say kind of lightly,
"Well, they could have just built at risk."
They could have just gone ahead,
and who knows how it would have ended up?
But is that going to be the test
of whether or not we're saying
that they're engaged, that we tell them to just go out,
and do something that business-wise, wouldn't be advisable?
-: Yes, I believe it is,
because that's what the statute requires.
The statute requires Commcan to be engaged
in the manufacture, cultivation, or sale of marijuana.
And I think if you look at the legislative history,
it makes clear that being simply registered,
and simply engaging activities leading up to
that full manufacturer sale are not enough.
Prior to July 28, 2017, the prior statute provided
that zoning ordinances or bylaws could not
prohibit placing a marijuana establishment in any area
in which a medical marijuana treatment center
was registered to engage in the same type of activity.
But legislator later changed that to allow
medical marijuana treatment centers
that were actually engaged in the manufacture, cultivation,
and sale of marijuana to convert as of right
to a retail establishment.
-: Do you, Counsel, see a difference between engaged
in the cultivation, manufacture, or sale,
and cultivating, manufacturing, and selling?
That is, it seems to me,
your position reads out "engaged in",
and requires the cultivation, the manufacturing,
and the selling.
-: Yes, that is correct.
-: So, you're actually asking us
to read out the phrase "engaged in"?
-: Yes, because "engaged in" refers specifically
to being engaged in the activities
of cultivating, manufacturing, or selling.
-: Normally, in statutory construction,
we give each word a meaning,
and you're suggesting that in this situation,
"engaged in" has no meaning.
In fact, we should strike it, and it should instead be
that the medical marijuana establishment
must actually be manufacturing, selling, and cultivating.
-: I don't necessarily think you need to strike the words,
but I think "engage in" has to be read
in conjunction with those words,
which means that, yes, they would need to be
cultivating, manufacturing, and selling
-: Even though that's what the statute doesn't say?
-: No, I believe that it does.
I believe "engaged in the cultivation,
manufacture, or sale" does,
if you read those words together,
it does require them to be cultivating,
manufacturing, and selling, or selling.
-: So you are saying there's a difference between
engaging in selling marijuana,
and engaging in activity to prepare to sell marijuana.
Is that what it is?
-: Yes, Your Honor.
That is the distinction that I am trying to make.
-: And it doesn't matter whose fault it is
that, you know had everything gone the way
they had hoped it would, they would be selling marijuana.
-: Correct, I do not think that matters,
because I think as a matter of policy,
what the legislator was looking to do
was to allow an establishment
that already had experience in selling marijuana,
and had relationships with the community,
and understood the community impact
of this marijuana establishment to expand its operations,
which is not the case here.
-: Didn't the city say, "Hey, go for it, we say okay"?
Didn't the city already, they gave all the permits,
and said, "Go", right?
The city was all right with it.
-: Yes, that's correct.
-: So why would the city have a problem now
with with allowing it to switch over to retail sales?
-: Because I think that there's a difference
between a medical marijuana establishment and retail sales.
It attracts different clienteles,
It could have different impacts on the community,
and there is no medical marijuana facility to speak up,
where their employees have had experience with the sale,
where there's there's data to show
what kind of community impact
that facility has on the community, that experience-
-: But you weren't willing to allow it,
you said, "Go forth and build the medical dispensary."
Counsel: Correct.
-: That's what you guys said.
And now you're saying, "No, no, don't go."
And no, no, even though there is a section of the statute
that applies to this company,
we don't want you to use it,
because we're gonna look at "engaging in" very narrowly.
-: Well, that's not true.
We're not saying that they can't be can't build,
and construct their medical marijuana establishment.
That permit, I believe, still remains valid,
and they can still engage in those activities.
However, our position is that they are not entitled,
as of right, to convert to a retail establishment.
-: You've got a little more time,
if you want to say anything else.
-: May I ask a further question?
So if it's going to come down
to what definition we ought to give to
"engaged in the sale, cultivation, or manufacture",
let's just say I agree with you,
or let's just say that there's uncertain,
we have regulations from the CCC, don't we?
And the CCC adopts regulations interpreting 94G,
and one of those regulations talks to
receiving a provisional certificate of registration.
And so isn't that something that Commcan had?
And so, shouldn't we let that control
as to whether or not they've met the test
of engaging in all of those other things?
-: I don't believe so,
because the CCC only has as much power
as legislature gives it.
It doesn't have the power to issue regulations
or guidelines that conflict with the statute.
To the extent that it's saying
that having a provisional license is engaged in,
it conflicts with the statute,
because if you have only a provisional license,
you're necessarily not engaged
in cultivation, manufacture, or sale of marijuana.
And so-
-: So we shouldn't give any deference to the regulations
of the CCC interpreting the statutory provisions?
-: Not in this specific instance,
where their interpretation conflicts with the statute.
-: [Chief Justice Budd] Any other questions?
Okay, thank you so much.
Counsel: Thank you, Your Honor.
-: Mr. Taylor.
-: Thank you, Your Honor.
-: [Chief Justice Budd] And I'm sorry-
-: And may it please the court.
Thank you for accommodating us here today.
It's been close to a year,
since I've seen the inside of a courtroom.
-: [Chief Justice Budd] Welcome.
This is exciting.
So let me just address something on the standing issue.
I think that Your Honor's laid it out carefully
in the prior argument, by my sister.
The issue here isn't us attacking the zoning bylaw.
They're free to adopt a zoning bylaw
that operates to restrict marijuana to a certain district.
The issue here is as applied to our particular use,
which is consistent with the cases.
Ms. Rosenfeld is clearly an owner of the property.
She doesn't have to exhaust administrative remedies,
and she was clearly, properly before the land court,
which cited all of those reasons, cited all of the cases.
And I'm not aware of a case in this situation
that would stand for a contrary proposition on that.
The bylaw is in conflict as, as we've suggested,
or intention with, at the very least,
the provisions of 94G section three,
which says that if you are licensed as of a certain date,
and the regulations do state
that provisional license is sufficient to do a conversion.
If you are licensed by a certain date,
the cutoff was July 1st, 2017,
then you have the power to convert,
or no bylaw may prevent you from converting.
Now we concede that there are other hoops
we'd have to jump through at the local level.
We'd have to redo our host community agreement,
and we'd have to amend our special permit,
but the bylaw itself can't operate
to prevent that conversion.
-: [Justice Wendlandt] Counsel, can I ask you to go back
to the standing question?
-: Sure.
-: So Rosenfeld has standing, does Commcan?
-: Commcan's not the owner,
although it's controlled wholly by Ms. Rosenfeld,
but that's not the issue here.
The issue here is whether or not
an owner of a property, and Ms. Rosenfeld, by the way,
is the recipient of the special permit.
The fact that she's going to be using a corporate entity
for the licensure and operation purposes is irrelevant
for the standing issue.
As an owner, she is entitled to a declaration-
-: Right, which is why I started off my question
with the premise that she has standing.
The question is, does Comcann?
-: That issue was addressed at the land court.
So we pled it together,
so that we could have all the facts out there,
'cause Ms. Rosenfeld controls both entities.
Technically, Comcann does not have standing,
'cause they're not the owner of the freehold estate.
The judge felt, I think at that point, look,
we're here on summary judgment,
it doesn't make a lot of sense
to have a partial dismissal, let's go forward.
He only addresses the standing of Ms. Rosenfeld.
We did not offer a challenge in any way, shape or form.
There's no separate appellate argument
with respect to Commcan.
We submit and agree, for the record,
that it is Ms. Rosenfeld that possesses the standing here.
-: [Justice Wendlandt] So that doesn't
make a difference then?
-: I don't think it makes a difference in the outcome,
Your Honor, 'cause again,
she has the authority to do it,
whether or not she's the corporate entity
that will actually be opening
the doors of the dispensary is irrelevant
for the purposes of standing before the land court.
So the crux of the question before the land courts,
as we wound through it-
-: Before we leave the stand,
are their good cases for us to look at
on this sort of mixed issue,
where one person has standing,
and they're also the corporate, I mean,
they're essentially controlling the other.
Is there any good land court decisions,
or anything else we could just to look
to for guidance on that point?
-: We never mined down that deep into that, Your Honor.
We weren't asked to brief that,
and it wasn't an issue here pled before you,
as a separate argument.
Again, we submit for the record that Ms. Rosenfeld-
-: Well, you know, Counsel, I mean,
that is entirely the first part of the brief,
for the town of Mansfield.
They're saying Commcan has no standing.
I don't see how you can say that
was not an issue brief below or here.
-: Well, again, we're not arguing,
if the issue is the relationship part
affecting Ms. Rosenfeld's standing, if that's the question,
then we would submit that relationship has no bearing.
My point is it would have no bearing
on Ms. Rosenfeld's standing,
the fact that there's a second entity.
Again, we are not arguing here today
that Commcan has a right under 241-14A,
it is specific as to the owner of a freehold estate.
If the land court had kicked Commcan out,
we would have been comfortable with that,
and we would have proceeded accordingly.
I think at that point,
the land court was just pleased
to get to the main part of this,
which is is this entity engaged?
-: Well, if we get to that main point,
well, you haven't sold, dispensed,
manufactured any marijuana on the property.
And so I understand that there might be some reasons
why that ability was frustrated,
but have you met the plain statutory language of 3A1?
-: We believe we have squarely, Your Honor,
because as the judge went through it,
look, if the legislature,
or the cannabis control commission,
which helped write some of this legislation,
had chosen to say, "Until you open your doors,
you don't have any rights accorded under the statute."
They could have done that.
They could have chosen their words carefully.
Here, they use the term, "You have to be licensed,
and you have to be engaged
in one the classes of marijuana business."
Here, this is a dispensary,
so it would ultimately be sale.
The judge was careful.
Judge Spicher was very careful.
He looked, first, to the common definition
of the term "engaged",
and talked about to essentially involved
in an activity, occupied or busy.
Then, he went to the facts of what it takes
to become a marijuana entity,
all the hoops that you have to jump through,
you need a host community agreement,
you've got to get licensure from the state,
you have to spend $50,000 a year,
as one of the Amicus brief notes,
you have to do that going forward,
you need a special permit from the zoning board of appeals.
Then, you've gotta build the thing,
that's a lot of activity to pack in,
even if this hadn't been appealed by-
-: I'm sorry, Counsel.
The statute doesn't say that,
the statute says engaged in these categories,
as you point out.
And when I look at it, the question becomes
"engaged in what?"
In the what, engaged in modifies,
and what's pertinent here are sales, correct?
So you have to be actively involved in sales.
-: So, and I think there's two ways
to help answer that question.
First of all, to the extent there's an ambiguity
in what what were they talking about engaged?
Because there's obviously some difference of opinion here.
Then why don't we go
to the Cannabis Control Commission's own guidelines?
-: 'Cause what we have here,
like, I think Justice Scalia has said in the past,
that, you know, just pick a rule
of statutory construction
that you want to come down the road,
you've got a better one coming around.
So, as Justice Wendlandt pointed out earlier,
one interpretation takes out the word "engaged in".
They could just say, "Someone who sells, cultivates",
we don't have that, but then we have "engaged in",
and that "engaged in" is modified by sales,
so puts us kind of in that conundrum of ambiguity.
-: Well, so again, I think there are two ways
to answer that, Justice Gaziano,
and that is, the first, well,
the first that the court relied on,
because they never even, they felt it was unambiguous,
and didn't reach our argument below
about the guidelines from the Cannabis Control Commission.
They answered it initially,
the initial answer was to draw reference, again,
from the Miriam Webster dictionary,
which talks about pursuit of an activity.
So pursuit of sale, and then they analogized,
and it's not too far from this actual statutory scheme,
the zoning cases, which are highly developed in this area,
regarding the exercise of a variance,
particularly the Green case, the Green Southborough case.
There's a very short time period
to exercise a zoning variance,
and people struggle with that,
developers struggle with that all the time.
But what the court has said,
and what they have fashioned through the case law
is that you don't actually have to build the house
that you got the variance for,
but you do have to take the steps to actively pursue that.
And that's why the judge draw reference from the Green case,
and there's other cases like it-
-: I assume there's no statutory history
that's gonna help us out, like excited history on this.
-: No, this is the first case,
and likely, the last case,
because there's only a limited number of dispensaries
that fall into this narrow band.
So it may be utility once,
or maybe academics will be interested in the outcome,
or maybe it'll have some clues for statutory construction,
but it's likely to never rise again.
And it certainly hasn't arisen previously.
We do have, though, in terms of
who's thinking about how this may be applied,
the Cannabis Control Commission, which again,
has a series of regulations,
and those have the force of law,
and I'm not aware of a direct challenge by anyone
to the legitimacy of those regulations,
certainly the town of Mansfield hasn't attacked
the validity of those regulations.
Those regulations speak to how you might convert,
what are the steps?
What do you need to have?
And they say, "You have to have at least a provisional",
but we've got the provisional, the provisional exists,
so we have that.
Then, in addition to the regulations,
the Cannabis Control Commission,
which oversees the entire marijuana program,
as we know from the prior argument,
and in the argument here,
they have issued guidance to municipalities.
I represent a lot of municipalities,
we take that guidance very seriously,
because these statutes came at us so fast,
and so quickly, and they're so comprehensive,
and the regulations are so thick
that we rely on the guidance from
the Cannabis Control Commission frequently.
Here, they said specifically in that guidance document
that all you need is your provisional,
if you've got the provisional, you're engaged,
that's the guidance they gave,
it was specific to that.
And while we only reached that,
if this court finds that there's an ambiguity,
there is value in looking at
the Cannabis Control Commission guidance,
especially where, as here, pursuant to statute,
they have a substantial governing role
in the entire process.
So whether it's unambiguous, which we would contend,
or ambiguous, there's ample support in the cases,
and the logic of the land court judge
for reaching the conclusion they did.
And with that, unless there's further questions, I'll-
-: [Justice Wendlandt] Can I ask you two questions?
-: Sure. -: One,
can you address the status of the appeal?
-: Sure, the appeal-
-: And two, can you tell me whether or not
there was a contested fact on the construction finance point
that the judge took judicial notice of?
-: There was not.
So two things, the status of the appeal
is we're waiting for a date for, it's fully brief,
we're waiting for date for oral argument
at the appeals court.
It is not on the merits.
It's only on this unique question
of nonprofit versus for-profit for medical dispensary.
So it's a very narrow question,
but it is still preventing us from going forward.
The fact regarding, I'm sorry, specifically the question?
-: I thought it was a judicial notice point, basically.
-: Yeah, so the judicial notice point,
which I don't think is essential for deciding this case.
The land court wanted to know what was going on there,
so they asked following the oral argument on Saturday-
-: Right, and somebody submitted an affidavit,
and I thought the land court said that was undisputed.
-: Well, the land court took judicial notice of the fact
that land court-
-: But in addition to judicial notice,
said it was undisputed.
-: Well, I'm not aware of a dispute of that fact.
I mean, Ms. Rosenfeld has relationships with lenders,
but she can't go forward-
-: Counsel, to that point,
were the parties given an opportunity to know
that Judge Spicher was going to take judicial notice of it?
Were they given an opportunity to essentially contest?
So it's undisputed, but is it undisputed,
because no one knew he was going to do it?
-: Well, he didn't give any highlight,
or premonition that he was going to take judicial notice
of the fact-
-: [Justice Georges Jr.] Is he supposed to?
-: No, not at all.
At the time, I felt that the reason
why he asked for information regarding the companion case
was to have a full picture of what other delays,
in addition to all of the other hoops
that Ms. Rosenfeld and Commcan had to jump through,
are there additional delays?
And so he just wanted to round out
his understanding of the facts.
That he took judicial notice was not
something he forecasted to us at all.
He didn't ask for further briefing,
he just wanted to know the status of that case.
I had mentioned that we had sought a bond,
he wanted the information supporting that bond.
There was never an issue that he presented
that he opened up for further debate on that.
-: [Chief Justice Budd] Any other questions?
Okay, thank you so much, Counsel.
Counsel: Thank you so much.
-: [Justice Georges Jr.] Thank you, Counsel.