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SJC-13029,
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Comcann 8V, town of Mansfield.
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Okay.
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Ms. Kawamoto, good morning, Your Honors,
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and may it please the court.
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Noemi Kawamoto on behalf of the defendant appellant,
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the town of Mansfield in this action.
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The town has appealed the judgment issued by the land court,
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because the judgment lacks those legal and factual support,
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and should be reversed for a number of reasons.
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First and most importantly,
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the land court failed to apply
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chapter 93 G section three as written.
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The text of that section relevant part
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provides that zoning ordinances or bylaws
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shall not operate to prevent the conversion
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of a medical marijuana treatment center licensed-
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Before we get to that argument,
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can you talk to me about the standing argument?
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Because I'm a little bit confused by that.
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I'd love to get to that issue,
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but is the town still contending
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that there's no standing here?
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Yes, the town is.
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I believe that that under chapter 240 section 14A,
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it is only the owner of a freehold estate
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that can pass standing under this section
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to bring an action, and Commcan,
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who is the licensee, is not the owner.
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However, in addition, under that statute,
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there is no cognizable claim here-
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But Rosenfeld is the owner and she's a party..
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Correct, but you can't combine the two plaintiffs
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in order for them to have standing.
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Each plaintiff, separately,
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must have standing on its own.
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[Justice Georges Jr.] Okay.
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But in addition, under that statute,
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there is no cognizable claim here,
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because this all the land court did
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was look at the validity of a bylaw.
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The Wittensville case here is instructive in that
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in that case, the court found
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that there was no jurisdiction,
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because in the orchids discussion,
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all the judge ruled was relating to the,
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there was no ruling relating
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to the determination of the validity or extent
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of any municipal zoning ordinance,
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bylaw, or a special permit.
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In that case, the lower court had declared
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that by virtue of a special permit
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that certain zoning bylaws did not apply to the plaintiff-
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Counsel, can I stop you there?
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Because it sounds like you're going to the merits,
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and not necessarily the issue of jurisdiction,
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that is whether the land court
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had the power to entertain the claim.
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Correct.
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All right, so you're arguing the merits,
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you're conceding that the land courts had jurisdiction.
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No, I do not concede that they had jurisdiction.
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And so what is your argument
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that the land court does not have jurisdiction?
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It lacks the power to even address the claim.
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The land court under section 14,
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it only has the power to address
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the validity of a zoning bylaw or ordinance.
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Here, the land court was applying-
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Excuse me, can you just slow down just a little bit?
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I'm sorry.
I'm having trouble
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hearing you, and combined with the velocity of your speech,
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I'm having trouble.
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Yes, I apologize.
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Under section 14A, the land court only has the power
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to determine the validity of a zoning bylaw or ordinance.
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Here, what the land court was doing
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was looking at the application of a statute,
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when interpreting a statute.
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The plaintiffs have attempted to pass this
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as an issue concerning the validity of a bylaw,
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limiting retail marijuana establishments
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to a particular zone in Mansfield,
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by claiming the town could not enact a bylaw
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that prevents the conversion
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of a medical marijuana treatment center
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to a retail establishment.
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However, section three does not prohibit the town
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from enacting such a bylaw.
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Chapter 93G section three simply prohibits
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a bylaw from operating to prevent the conversion
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of a medical marijuana treatment center
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to a retail establishment.
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In other words, if chapter 94G section three
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applies to Commcan,
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then Mansfield zoning bylaw regarding retail marijuana
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does not apply to Commcan, and to Commcan only.
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It does not mean that the bylaw
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limiting retail marijuana establishments
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to a certain zoning area is invalid.
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In fact, that zoning bylaw will be valid
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as to all other persons,
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meaning that the land court simply
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did not have jurisdiction to just interpret the statute,
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with no reference to the validity of the zoning bylaw.
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I must say, I find that argument incredibly confusing,
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because it seems
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that what the land court was asked to do,
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and has power to do is to determine the validity
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of the Mansfield's ordinance or bylaw
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that precluded the conversion
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of the medical marijuana dispensary
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to a retail medical marijuana establishment.
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Right.
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And then that was the question being asked
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for the land court to determine.
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Separate and apart, I understand the town's argument
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that in fact, they're allowed to do what they did,
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but the determination of the power
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of the land court to do this
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seems to me beyond question.
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I disagree with that,
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because I don't believe they were ruling
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on the validity of the bylaw itself.
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The bylaw, I believe remains valid
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as to all other persons.
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What the land court found
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was that the bylaws simply didn't apply to Commcan.
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Okay.
[Chief Justice Budd] Okay.
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In any case, the land court failed to apply
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chapter 93G as written.
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Under the statute, it requires three separate things.
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It requires that there be a treatment center
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that is licensed or engaged-
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I'm going to ask you to go super, super slow, okay,
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and then also, speak into the microphone,
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because I really am having trouble hearing
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and understanding you.
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Yes, so under the plain terms of the statute,
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several conditions must be met,
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in order for the statute to apply.
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First, there must be a treatment center
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that is licensed or registered no later than July 1st, 2017,
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and that is engaged in the sale of marijuana.
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All of these things are required.
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The land court, however, ignored the words
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"engage in the sale of marijuana",
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and determined that because the plaintiffs are engaged
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in the activities authorized for their provisional license.
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Counsel, let's get to the heart of that argument.
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The engaging in the cultivation, manufacture,
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or sale of marijuana.
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Is the town's position that the only way
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to comply with that language
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is that they actually have started construction?
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Not only started construction,
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but have actually engaged in the cultivation,
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manufacture, or sale.
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Okay, now this isn't as if, in this case,
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Commcan just sat on their hands,
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they've been embroiled in litigation
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over the issuance of the permit within the butter.
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It actually went to trial and it's on appeal.
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So they've done everything that they can,
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in which leads to, I know the question about
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the judicial notice aspects of this,
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but the crux of all of this is they wanted to build,
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they tried to build,
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they did everything that they could to build.
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But then as of right, an abutter filed an appeal,
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and that needs to be fully vindicated and decided.
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So what else were they to do?
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I know when your brief, you say kind of lightly,
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"Well, they could have just built at risk."
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They could have just gone ahead,
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and who knows how it would have ended up?
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But is that going to be the test
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of whether or not we're saying
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that they're engaged, that we tell them to just go out,
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and do something that business-wise, wouldn't be advisable?
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Yes, I believe it is,
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because that's what the statute requires.
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The statute requires Commcan to be engaged
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in the manufacture, cultivation, or sale of marijuana.
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And I think if you look at the legislative history,
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it makes clear that being simply registered,
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and simply engaging activities leading up to
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that full manufacturer sale are not enough.
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Prior to July 28, 2017, the prior statute provided
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that zoning ordinances or bylaws could not
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prohibit placing a marijuana establishment in any area
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in which a medical marijuana treatment center
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was registered to engage in the same type of activity.
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But legislator later changed that to allow
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medical marijuana treatment centers
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that were actually engaged in the manufacture, cultivation,
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and sale of marijuana to convert as of right
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to a retail establishment.
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Do you, Counsel, see a difference between engaged
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in the cultivation, manufacture, or sale,
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and cultivating, manufacturing, and selling?
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That is, it seems to me,
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your position reads out "engaged in",
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and requires the cultivation, the manufacturing,
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and the selling.
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Yes, that is correct.
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So, you're actually asking us
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to read out the phrase "engaged in"?
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Yes, because "engaged in" refers specifically
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to being engaged in the activities
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of cultivating, manufacturing, or selling.
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Normally, in statutory construction,
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we give each word a meaning,
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and you're suggesting that in this situation,
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"engaged in" has no meaning.
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In fact, we should strike it, and it should instead be
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that the medical marijuana establishment
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must actually be manufacturing, selling, and cultivating.
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I don't necessarily think you need to strike the words,
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but I think "engage in" has to be read
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in conjunction with those words,
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which means that, yes, they would need to be
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cultivating, manufacturing, and selling
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Even though that's what the statute doesn't say?
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No, I believe that it does.
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I believe "engaged in the cultivation,
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manufacture, or sale" does,
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if you read those words together,
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it does require them to be cultivating,
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manufacturing, and selling, or selling.
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So you are saying there's a difference between
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engaging in selling marijuana,
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and engaging in activity to prepare to sell marijuana.
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Is that what it is?
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Yes, Your Honor.
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That is the distinction that I am trying to make.
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And it doesn't matter whose fault it is
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that, you know had everything gone the way
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they had hoped it would, they would be selling marijuana.
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Correct, I do not think that matters,
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because I think as a matter of policy,
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what the legislator was looking to do
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was to allow an establishment
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that already had experience in selling marijuana,
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and had relationships with the community,
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and understood the community impact
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of this marijuana establishment to expand its operations,
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which is not the case here.
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Didn't the city say, "Hey, go for it, we say okay"?
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Didn't the city already, they gave all the permits,
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and said, "Go", right?
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The city was all right with it.
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Yes, that's correct.
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So why would the city have a problem now
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with with allowing it to switch over to retail sales?
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Because I think that there's a difference
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between a medical marijuana establishment and retail sales.
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It attracts different clienteles,
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It could have different impacts on the community,
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and there is no medical marijuana facility to speak up,
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where their employees have had experience with the sale,
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where there's there's data to show
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what kind of community impact
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that facility has on the community, that experience-
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But you weren't willing to allow it,
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you said, "Go forth and build the medical dispensary."
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Correct.
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That's what you guys said.
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00:12:03.140 --> 00:12:06.500
And now you're saying, "No, no, don't go."
270
00:12:06.500 --> 00:12:11.500
And no, no, even though there is a section of the statute
271
00:12:12.450 --> 00:12:15.943
that applies to this company,
272
00:12:18.820 --> 00:12:20.070
we don't want you to use it,
273
00:12:20.070 --> 00:12:25.070
because we're gonna look at "engaging in" very narrowly.
274
00:12:27.200 --> 00:12:28.033
Well, that's not true.
275
00:12:28.033 --> 00:12:31.400
We're not saying that they can't be can't build,
276
00:12:31.400 --> 00:12:33.630
and construct their medical marijuana establishment.
277
00:12:33.630 --> 00:12:36.080
That permit, I believe, still remains valid,
278
00:12:36.080 --> 00:12:38.550
and they can still engage in those activities.
279
00:12:38.550 --> 00:12:41.570
However, our position is that they are not entitled,
280
00:12:41.570 --> 00:12:44.263
as of right, to convert to a retail establishment.
281
00:12:51.590 --> 00:12:52.930
You've got a little more time,
282
00:12:52.930 --> 00:12:54.750
if you want to say anything else.
283
00:12:54.750 --> 00:12:56.207
May I ask a further question?
284
00:12:56.207 --> 00:12:58.751
So if it's going to come down
285
00:12:58.751 --> 00:13:03.000
to what definition we ought to give to
286
00:13:03.000 --> 00:13:07.249
"engaged in the sale, cultivation, or manufacture",
287
00:13:07.249 --> 00:13:09.382
let's just say I agree with you,
288
00:13:09.382 --> 00:13:11.856
or let's just say that there's uncertain,
289
00:13:11.856 --> 00:13:16.640
we have regulations from the CCC, don't we?
290
00:13:16.640 --> 00:13:21.640
And the CCC adopts regulations interpreting 94G,
291
00:13:22.800 --> 00:13:27.800
and one of those regulations talks to
292
00:13:27.890 --> 00:13:31.940
receiving a provisional certificate of registration.
293
00:13:31.940 --> 00:13:36.920
And so isn't that something that Commcan had?
294
00:13:36.920 --> 00:13:39.170
And so, shouldn't we let that control
295
00:13:39.170 --> 00:13:41.730
as to whether or not they've met the test
296
00:13:41.730 --> 00:13:45.070
of engaging in all of those other things?
297
00:13:45.070 --> 00:13:46.150
I don't believe so,
298
00:13:46.150 --> 00:13:48.999
because the CCC only has as much power
299
00:13:48.999 --> 00:13:50.880
as legislature gives it.
300
00:13:50.880 --> 00:13:54.250
It doesn't have the power to issue regulations
301
00:13:54.250 --> 00:13:56.430
or guidelines that conflict with the statute.
302
00:13:56.430 --> 00:13:58.330
To the extent that it's saying
303
00:13:58.330 --> 00:14:00.903
that having a provisional license is engaged in,
304
00:14:00.903 --> 00:14:02.820
it conflicts with the statute,
305
00:14:02.820 --> 00:14:05.510
because if you have only a provisional license,
306
00:14:05.510 --> 00:14:07.550
you're necessarily not engaged
307
00:14:07.550 --> 00:14:10.725
in cultivation, manufacture, or sale of marijuana.
308
00:14:10.725 --> 00:14:12.115
And so-
309
00:14:12.115 --> 00:14:14.938
So we shouldn't give any deference to the regulations
310
00:14:14.938 --> 00:14:19.161
of the CCC interpreting the statutory provisions?
311
00:14:19.161 --> 00:14:21.620
Not in this specific instance,
312
00:14:21.620 --> 00:14:24.463
where their interpretation conflicts with the statute.
313
00:14:29.046 --> 00:14:31.290
[Chief Justice Budd] Any other questions?
314
00:14:31.290 --> 00:14:33.220
Okay, thank you so much.
315
00:14:33.220 --> 00:14:35.210
Thank you, Your Honor.
316
00:14:35.210 --> 00:14:36.043
Mr. Taylor.
317
00:14:38.950 --> 00:14:40.842
Thank you, Your Honor.
318
00:14:40.842 --> 00:14:41.675
[Chief Justice Budd] And I'm sorry-
319
00:14:41.675 --> 00:14:42.760
And may it please the court.
320
00:14:42.760 --> 00:14:44.650
Thank you for accommodating us here today.
321
00:14:44.650 --> 00:14:45.930
It's been close to a year,
322
00:14:45.930 --> 00:14:48.017
since I've seen the inside of a courtroom.
323
00:14:48.017 --> 00:14:48.850
[Chief Justice Budd] Welcome.
324
00:14:48.850 --> 00:14:50.330
This is exciting.
325
00:14:50.330 --> 00:14:53.740
So let me just address something on the standing issue.
326
00:14:53.740 --> 00:14:56.585
I think that Your Honor's laid it out carefully
327
00:14:56.585 --> 00:15:01.210
in the prior argument, by my sister.
328
00:15:01.210 --> 00:15:04.860
The issue here isn't us attacking the zoning bylaw.
329
00:15:04.860 --> 00:15:06.882
They're free to adopt a zoning bylaw
330
00:15:06.882 --> 00:15:11.882
that operates to restrict marijuana to a certain district.
331
00:15:12.130 --> 00:15:16.490
The issue here is as applied to our particular use,
332
00:15:16.490 --> 00:15:18.930
which is consistent with the cases.
333
00:15:18.930 --> 00:15:22.760
Ms. Rosenfeld is clearly an owner of the property.
334
00:15:22.760 --> 00:15:25.538
She doesn't have to exhaust administrative remedies,
335
00:15:25.538 --> 00:15:29.244
and she was clearly, properly before the land court,
336
00:15:29.244 --> 00:15:34.244
which cited all of those reasons, cited all of the cases.
337
00:15:34.700 --> 00:15:37.720
And I'm not aware of a case in this situation
338
00:15:37.720 --> 00:15:40.913
that would stand for a contrary proposition on that.
339
00:15:43.900 --> 00:15:48.260
The bylaw is in conflict as, as we've suggested,
340
00:15:48.260 --> 00:15:50.460
or intention with, at the very least,
341
00:15:50.460 --> 00:15:53.560
the provisions of 94G section three,
342
00:15:53.560 --> 00:15:57.568
which says that if you are licensed as of a certain date,
343
00:15:57.568 --> 00:15:59.760
and the regulations do state
344
00:15:59.760 --> 00:16:04.430
that provisional license is sufficient to do a conversion.
345
00:16:04.430 --> 00:16:06.330
If you are licensed by a certain date,
346
00:16:06.330 --> 00:16:08.981
the cutoff was July 1st, 2017,
347
00:16:08.981 --> 00:16:11.580
then you have the power to convert,
348
00:16:11.580 --> 00:16:15.010
or no bylaw may prevent you from converting.
349
00:16:15.010 --> 00:16:17.730
Now we concede that there are other hoops
350
00:16:17.730 --> 00:16:20.444
we'd have to jump through at the local level.
351
00:16:20.444 --> 00:16:23.979
We'd have to redo our host community agreement,
352
00:16:23.979 --> 00:16:27.900
and we'd have to amend our special permit,
353
00:16:27.900 --> 00:16:30.551
but the bylaw itself can't operate
354
00:16:30.551 --> 00:16:34.378
to prevent that conversion.
355
00:16:34.378 --> 00:16:35.770
[Justice Wendlandt] Counsel, can I ask you to go back
356
00:16:35.770 --> 00:16:36.680
to the standing question?
357
00:16:36.680 --> 00:16:37.937
Sure.
358
00:16:37.937 --> 00:16:41.468
So Rosenfeld has standing, does Commcan?
359
00:16:41.468 --> 00:16:43.695
Commcan's not the owner,
360
00:16:43.695 --> 00:16:47.886
although it's controlled wholly by Ms. Rosenfeld,
361
00:16:47.886 --> 00:16:50.890
but that's not the issue here.
362
00:16:50.890 --> 00:16:52.470
The issue here is whether or not
363
00:16:52.470 --> 00:16:57.470
an owner of a property, and Ms. Rosenfeld, by the way,
364
00:16:57.530 --> 00:16:59.810
is the recipient of the special permit.
365
00:16:59.810 --> 00:17:02.851
The fact that she's going to be using a corporate entity
366
00:17:02.851 --> 00:17:06.646
for the licensure and operation purposes is irrelevant
367
00:17:06.646 --> 00:17:08.890
for the standing issue.
368
00:17:08.890 --> 00:17:11.820
As an owner, she is entitled to a declaration-
369
00:17:11.820 --> 00:17:13.640
Right, which is why I started off my question
370
00:17:13.640 --> 00:17:15.590
with the premise that she has standing.
371
00:17:15.590 --> 00:17:17.324
The question is, does Comcann?
372
00:17:17.324 --> 00:17:20.113
That issue was addressed at the land court.
373
00:17:20.113 --> 00:17:22.810
So we pled it together,
374
00:17:22.810 --> 00:17:25.210
so that we could have all the facts out there,
375
00:17:25.210 --> 00:17:28.240
'cause Ms. Rosenfeld controls both entities.
376
00:17:28.240 --> 00:17:31.460
Technically, Comcann does not have standing,
377
00:17:31.460 --> 00:17:34.570
'cause they're not the owner of the freehold estate.
378
00:17:34.570 --> 00:17:37.870
The judge felt, I think at that point, look,
379
00:17:37.870 --> 00:17:39.036
we're here on summary judgment,
380
00:17:39.036 --> 00:17:41.130
it doesn't make a lot of sense
381
00:17:41.130 --> 00:17:44.330
to have a partial dismissal, let's go forward.
382
00:17:44.330 --> 00:17:47.175
He only addresses the standing of Ms. Rosenfeld.
383
00:17:47.175 --> 00:17:51.200
We did not offer a challenge in any way, shape or form.
384
00:17:51.200 --> 00:17:53.730
There's no separate appellate argument
385
00:17:53.730 --> 00:17:55.880
with respect to Commcan.
386
00:17:55.880 --> 00:17:58.490
We submit and agree, for the record,
387
00:17:58.490 --> 00:18:02.709
that it is Ms. Rosenfeld that possesses the standing here.
388
00:18:02.709 --> 00:18:03.775
[Justice Wendlandt] So that doesn't
389
00:18:03.775 --> 00:18:04.841
make a difference then?
390
00:18:04.841 --> 00:18:06.360
I don't think it makes a difference in the outcome,
391
00:18:06.360 --> 00:18:08.520
Your Honor, 'cause again,
392
00:18:08.520 --> 00:18:09.950
she has the authority to do it,
393
00:18:09.950 --> 00:18:11.820
whether or not she's the corporate entity
394
00:18:11.820 --> 00:18:13.160
that will actually be opening
395
00:18:13.160 --> 00:18:15.130
the doors of the dispensary is irrelevant
396
00:18:15.130 --> 00:18:18.273
for the purposes of standing before the land court.
397
00:18:19.430 --> 00:18:23.010
So the crux of the question before the land courts,
398
00:18:23.010 --> 00:18:24.710
as we wound through it-
399
00:18:24.710 --> 00:18:26.670
Before we leave the stand,
400
00:18:26.670 --> 00:18:28.773
are their good cases for us to look at
401
00:18:28.773 --> 00:18:31.640
on this sort of mixed issue,
402
00:18:31.640 --> 00:18:33.080
where one person has standing,
403
00:18:33.080 --> 00:18:36.430
and they're also the corporate, I mean,
404
00:18:36.430 --> 00:18:39.105
they're essentially controlling the other.
405
00:18:39.105 --> 00:18:41.300
Is there any good land court decisions,
406
00:18:41.300 --> 00:18:44.360
or anything else we could just to look
407
00:18:44.360 --> 00:18:45.923
to for guidance on that point?
408
00:18:47.394 --> 00:18:51.010
We never mined down that deep into that, Your Honor.
409
00:18:51.010 --> 00:18:53.040
We weren't asked to brief that,
410
00:18:53.040 --> 00:18:56.010
and it wasn't an issue here pled before you,
411
00:18:56.010 --> 00:18:57.750
as a separate argument.
412
00:18:57.750 --> 00:18:59.777
Again, we submit for the record that Ms. Rosenfeld-
413
00:18:59.777 --> 00:19:01.710
Well, you know, Counsel, I mean,
414
00:19:01.710 --> 00:19:03.870
that is entirely the first part of the brief,
415
00:19:03.870 --> 00:19:05.120
for the town of Mansfield.
416
00:19:05.120 --> 00:19:06.710
They're saying Commcan has no standing.
417
00:19:06.710 --> 00:19:08.090
I don't see how you can say that
418
00:19:08.090 --> 00:19:10.453
was not an issue brief below or here.
419
00:19:10.453 --> 00:19:13.049
Well, again, we're not arguing,
420
00:19:13.049 --> 00:19:16.430
if the issue is the relationship part
421
00:19:16.430 --> 00:19:21.240
affecting Ms. Rosenfeld's standing, if that's the question,
422
00:19:21.240 --> 00:19:23.860
then we would submit that relationship has no bearing.
423
00:19:23.860 --> 00:19:26.130
My point is it would have no bearing
424
00:19:26.130 --> 00:19:28.050
on Ms. Rosenfeld's standing,
425
00:19:28.050 --> 00:19:30.350
the fact that there's a second entity.
426
00:19:30.350 --> 00:19:32.849
Again, we are not arguing here today
427
00:19:32.849 --> 00:19:36.750
that Commcan has a right under 241-14A,
428
00:19:36.750 --> 00:19:40.670
it is specific as to the owner of a freehold estate.
429
00:19:40.670 --> 00:19:43.808
If the land court had kicked Commcan out,
430
00:19:43.808 --> 00:19:45.950
we would have been comfortable with that,
431
00:19:45.950 --> 00:19:48.232
and we would have proceeded accordingly.
432
00:19:48.232 --> 00:19:49.065
I think at that point,
433
00:19:49.065 --> 00:19:50.491
the land court was just pleased
434
00:19:50.491 --> 00:19:53.960
to get to the main part of this,
435
00:19:53.960 --> 00:19:58.960
which is is this entity engaged?
436
00:19:59.250 --> 00:20:01.343
Well, if we get to that main point,
437
00:20:03.290 --> 00:20:06.930
well, you haven't sold, dispensed,
438
00:20:06.930 --> 00:20:10.500
manufactured any marijuana on the property.
439
00:20:10.500 --> 00:20:12.589
And so I understand that there might be some reasons
440
00:20:12.589 --> 00:20:15.970
why that ability was frustrated,
441
00:20:15.970 --> 00:20:20.970
but have you met the plain statutory language of 3A1?
442
00:20:21.760 --> 00:20:24.350
We believe we have squarely, Your Honor,
443
00:20:24.350 --> 00:20:26.350
because as the judge went through it,
444
00:20:26.350 --> 00:20:28.100
look, if the legislature,
445
00:20:28.100 --> 00:20:29.860
or the cannabis control commission,
446
00:20:29.860 --> 00:20:31.989
which helped write some of this legislation,
447
00:20:31.989 --> 00:20:35.797
had chosen to say, "Until you open your doors,
448
00:20:35.797 --> 00:20:39.380
you don't have any rights accorded under the statute."
449
00:20:39.380 --> 00:20:40.740
They could have done that.
450
00:20:40.740 --> 00:20:42.620
They could have chosen their words carefully.
451
00:20:42.620 --> 00:20:44.796
Here, they use the term, "You have to be licensed,
452
00:20:44.796 --> 00:20:46.760
and you have to be engaged
453
00:20:46.760 --> 00:20:50.040
in one the classes of marijuana business."
454
00:20:50.040 --> 00:20:51.410
Here, this is a dispensary,
455
00:20:51.410 --> 00:20:53.352
so it would ultimately be sale.
456
00:20:53.352 --> 00:20:55.470
The judge was careful.
457
00:20:55.470 --> 00:20:57.039
Judge Spicher was very careful.
458
00:20:57.039 --> 00:21:00.530
He looked, first, to the common definition
459
00:21:00.530 --> 00:21:02.510
of the term "engaged",
460
00:21:02.510 --> 00:21:05.370
and talked about to essentially involved
461
00:21:05.370 --> 00:21:08.980
in an activity, occupied or busy.
462
00:21:08.980 --> 00:21:11.300
Then, he went to the facts of what it takes
463
00:21:11.300 --> 00:21:13.520
to become a marijuana entity,
464
00:21:13.520 --> 00:21:15.970
all the hoops that you have to jump through,
465
00:21:15.970 --> 00:21:17.635
you need a host community agreement,
466
00:21:17.635 --> 00:21:19.846
you've got to get licensure from the state,
467
00:21:19.846 --> 00:21:23.110
you have to spend $50,000 a year,
468
00:21:23.110 --> 00:21:25.720
as one of the Amicus brief notes,
469
00:21:25.720 --> 00:21:26.910
you have to do that going forward,
470
00:21:26.910 --> 00:21:29.690
you need a special permit from the zoning board of appeals.
471
00:21:29.690 --> 00:21:31.030
Then, you've gotta build the thing,
472
00:21:31.030 --> 00:21:33.441
that's a lot of activity to pack in,
473
00:21:33.441 --> 00:21:35.949
even if this hadn't been appealed by-
474
00:21:35.949 --> 00:21:36.907
I'm sorry, Counsel.
475
00:21:36.907 --> 00:21:38.420
The statute doesn't say that,
476
00:21:38.420 --> 00:21:42.630
the statute says engaged in these categories,
477
00:21:42.630 --> 00:21:44.560
as you point out.
478
00:21:44.560 --> 00:21:48.847
And when I look at it, the question becomes
479
00:21:48.847 --> 00:21:50.790
"engaged in what?"
480
00:21:50.790 --> 00:21:53.970
In the what, engaged in modifies,
481
00:21:53.970 --> 00:21:57.300
and what's pertinent here are sales, correct?
482
00:21:57.300 --> 00:22:00.780
So you have to be actively involved in sales.
483
00:22:00.780 --> 00:22:02.989
So, and I think there's two ways
484
00:22:02.989 --> 00:22:05.729
to help answer that question.
485
00:22:05.729 --> 00:22:08.295
First of all, to the extent there's an ambiguity
486
00:22:08.295 --> 00:22:11.530
in what what were they talking about engaged?
487
00:22:11.530 --> 00:22:15.720
Because there's obviously some difference of opinion here.
488
00:22:15.720 --> 00:22:16.790
Then why don't we go
489
00:22:16.790 --> 00:22:19.880
to the Cannabis Control Commission's own guidelines?
490
00:22:19.880 --> 00:22:21.404
'Cause what we have here,
491
00:22:21.404 --> 00:22:26.404
like, I think Justice Scalia has said in the past,
492
00:22:27.180 --> 00:22:29.320
that, you know, just pick a rule
493
00:22:29.320 --> 00:22:30.490
of statutory construction
494
00:22:30.490 --> 00:22:31.970
that you want to come down the road,
495
00:22:31.970 --> 00:22:33.540
you've got a better one coming around.
496
00:22:33.540 --> 00:22:37.293
So, as Justice Wendlandt pointed out earlier,
497
00:22:38.410 --> 00:22:41.210
one interpretation takes out the word "engaged in".
498
00:22:41.210 --> 00:22:45.660
They could just say, "Someone who sells, cultivates",
499
00:22:45.660 --> 00:22:47.677
we don't have that, but then we have "engaged in",
500
00:22:47.677 --> 00:22:50.420
and that "engaged in" is modified by sales,
501
00:22:50.420 --> 00:22:54.586
so puts us kind of in that conundrum of ambiguity.
502
00:22:54.586 --> 00:22:57.526
Well, so again, I think there are two ways
503
00:22:57.526 --> 00:23:00.570
to answer that, Justice Gaziano,
504
00:23:00.570 --> 00:23:02.310
and that is, the first, well,
505
00:23:02.310 --> 00:23:04.730
the first that the court relied on,
506
00:23:04.730 --> 00:23:07.660
because they never even, they felt it was unambiguous,
507
00:23:07.660 --> 00:23:09.790
and didn't reach our argument below
508
00:23:09.790 --> 00:23:12.898
about the guidelines from the Cannabis Control Commission.
509
00:23:12.898 --> 00:23:15.180
They answered it initially,
510
00:23:15.180 --> 00:23:18.130
the initial answer was to draw reference, again,
511
00:23:18.130 --> 00:23:21.090
from the Miriam Webster dictionary,
512
00:23:21.090 --> 00:23:23.860
which talks about pursuit of an activity.
513
00:23:23.860 --> 00:23:27.109
So pursuit of sale, and then they analogized,
514
00:23:27.109 --> 00:23:32.100
and it's not too far from this actual statutory scheme,
515
00:23:32.100 --> 00:23:36.210
the zoning cases, which are highly developed in this area,
516
00:23:36.210 --> 00:23:38.130
regarding the exercise of a variance,
517
00:23:38.130 --> 00:23:41.963
particularly the Green case, the Green Southborough case.
518
00:23:43.360 --> 00:23:45.280
There's a very short time period
519
00:23:45.280 --> 00:23:46.989
to exercise a zoning variance,
520
00:23:46.989 --> 00:23:50.130
and people struggle with that,
521
00:23:50.130 --> 00:23:52.770
developers struggle with that all the time.
522
00:23:52.770 --> 00:23:53.977
But what the court has said,
523
00:23:53.977 --> 00:23:57.180
and what they have fashioned through the case law
524
00:23:57.180 --> 00:24:00.950
is that you don't actually have to build the house
525
00:24:00.950 --> 00:24:02.870
that you got the variance for,
526
00:24:02.870 --> 00:24:06.188
but you do have to take the steps to actively pursue that.
527
00:24:06.188 --> 00:24:09.697
And that's why the judge draw reference from the Green case,
528
00:24:09.697 --> 00:24:11.490
and there's other cases like it-
529
00:24:11.490 --> 00:24:13.360
I assume there's no statutory history
530
00:24:13.360 --> 00:24:16.018
that's gonna help us out, like excited history on this.
531
00:24:16.018 --> 00:24:18.570
No, this is the first case,
532
00:24:18.570 --> 00:24:19.960
and likely, the last case,
533
00:24:19.960 --> 00:24:23.760
because there's only a limited number of dispensaries
534
00:24:23.760 --> 00:24:25.553
that fall into this narrow band.
535
00:24:25.553 --> 00:24:29.728
So it may be utility once,
536
00:24:29.728 --> 00:24:33.300
or maybe academics will be interested in the outcome,
537
00:24:33.300 --> 00:24:36.186
or maybe it'll have some clues for statutory construction,
538
00:24:36.186 --> 00:24:38.710
but it's likely to never rise again.
539
00:24:38.710 --> 00:24:41.825
And it certainly hasn't arisen previously.
540
00:24:41.825 --> 00:24:44.915
We do have, though, in terms of
541
00:24:44.915 --> 00:24:48.130
who's thinking about how this may be applied,
542
00:24:48.130 --> 00:24:49.956
the Cannabis Control Commission, which again,
543
00:24:49.956 --> 00:24:51.882
has a series of regulations,
544
00:24:51.882 --> 00:24:55.010
and those have the force of law,
545
00:24:55.010 --> 00:24:58.340
and I'm not aware of a direct challenge by anyone
546
00:24:58.340 --> 00:25:01.040
to the legitimacy of those regulations,
547
00:25:01.040 --> 00:25:04.050
certainly the town of Mansfield hasn't attacked
548
00:25:04.050 --> 00:25:06.200
the validity of those regulations.
549
00:25:06.200 --> 00:25:09.961
Those regulations speak to how you might convert,
550
00:25:09.961 --> 00:25:11.750
what are the steps?
551
00:25:11.750 --> 00:25:13.730
What do you need to have?
552
00:25:13.730 --> 00:25:16.320
And they say, "You have to have at least a provisional",
553
00:25:16.320 --> 00:25:19.676
but we've got the provisional, the provisional exists,
554
00:25:19.676 --> 00:25:21.770
so we have that.
555
00:25:21.770 --> 00:25:24.678
Then, in addition to the regulations,
556
00:25:24.678 --> 00:25:26.838
the Cannabis Control Commission,
557
00:25:26.838 --> 00:25:30.622
which oversees the entire marijuana program,
558
00:25:30.622 --> 00:25:32.920
as we know from the prior argument,
559
00:25:32.920 --> 00:25:34.594
and in the argument here,
560
00:25:34.594 --> 00:25:39.340
they have issued guidance to municipalities.
561
00:25:39.340 --> 00:25:41.300
I represent a lot of municipalities,
562
00:25:41.300 --> 00:25:43.710
we take that guidance very seriously,
563
00:25:43.710 --> 00:25:46.439
because these statutes came at us so fast,
564
00:25:46.439 --> 00:25:49.220
and so quickly, and they're so comprehensive,
565
00:25:49.220 --> 00:25:50.734
and the regulations are so thick
566
00:25:50.734 --> 00:25:53.420
that we rely on the guidance from
567
00:25:53.420 --> 00:25:55.832
the Cannabis Control Commission frequently.
568
00:25:55.832 --> 00:25:59.754
Here, they said specifically in that guidance document
569
00:25:59.754 --> 00:26:02.390
that all you need is your provisional,
570
00:26:02.390 --> 00:26:04.493
if you've got the provisional, you're engaged,
571
00:26:04.493 --> 00:26:06.620
that's the guidance they gave,
572
00:26:06.620 --> 00:26:08.125
it was specific to that.
573
00:26:08.125 --> 00:26:10.270
And while we only reached that,
574
00:26:10.270 --> 00:26:12.863
if this court finds that there's an ambiguity,
575
00:26:12.863 --> 00:26:16.140
there is value in looking at
576
00:26:16.140 --> 00:26:18.261
the Cannabis Control Commission guidance,
577
00:26:18.261 --> 00:26:21.277
especially where, as here, pursuant to statute,
578
00:26:21.277 --> 00:26:23.820
they have a substantial governing role
579
00:26:23.820 --> 00:26:26.420
in the entire process.
580
00:26:26.420 --> 00:26:29.780
So whether it's unambiguous, which we would contend,
581
00:26:29.780 --> 00:26:33.227
or ambiguous, there's ample support in the cases,
582
00:26:33.227 --> 00:26:36.310
and the logic of the land court judge
583
00:26:36.310 --> 00:26:38.160
for reaching the conclusion they did.
584
00:26:39.978 --> 00:26:42.608
And with that, unless there's further questions, I'll-
585
00:26:42.608 --> 00:26:43.441
[Justice Wendlandt] Can I ask you two questions?
586
00:26:43.441 --> 00:26:44.480
Sure.
One,
587
00:26:44.480 --> 00:26:46.360
can you address the status of the appeal?
588
00:26:46.360 --> 00:26:47.330
Sure, the appeal-
589
00:26:47.330 --> 00:26:50.321
And two, can you tell me whether or not
590
00:26:50.321 --> 00:26:54.980
there was a contested fact on the construction finance point
591
00:26:54.980 --> 00:26:57.347
that the judge took judicial notice of?
592
00:26:57.347 --> 00:26:58.790
There was not.
593
00:26:58.790 --> 00:27:01.130
So two things, the status of the appeal
594
00:27:01.130 --> 00:27:04.130
is we're waiting for a date for, it's fully brief,
595
00:27:04.130 --> 00:27:06.037
we're waiting for date for oral argument
596
00:27:06.037 --> 00:27:07.539
at the appeals court.
597
00:27:07.539 --> 00:27:09.200
It is not on the merits.
598
00:27:09.200 --> 00:27:11.974
It's only on this unique question
599
00:27:11.974 --> 00:27:16.730
of nonprofit versus for-profit for medical dispensary.
600
00:27:16.730 --> 00:27:18.630
So it's a very narrow question,
601
00:27:18.630 --> 00:27:22.023
but it is still preventing us from going forward.
602
00:27:24.006 --> 00:27:29.006
The fact regarding, I'm sorry, specifically the question?
603
00:27:29.366 --> 00:27:32.140
I thought it was a judicial notice point, basically.
604
00:27:32.140 --> 00:27:33.700
Yeah, so the judicial notice point,
605
00:27:33.700 --> 00:27:36.603
which I don't think is essential for deciding this case.
606
00:27:36.603 --> 00:27:41.100
The land court wanted to know what was going on there,
607
00:27:41.100 --> 00:27:44.871
so they asked following the oral argument on Saturday-
608
00:27:44.871 --> 00:27:46.040
Right, and somebody submitted an affidavit,
609
00:27:46.040 --> 00:27:48.920
and I thought the land court said that was undisputed.
610
00:27:48.920 --> 00:27:51.780
Well, the land court took judicial notice of the fact
611
00:27:51.780 --> 00:27:52.613
that land court-
612
00:27:52.613 --> 00:27:53.590
But in addition to judicial notice,
613
00:27:53.590 --> 00:27:55.450
said it was undisputed.
614
00:27:55.450 --> 00:27:58.173
Well, I'm not aware of a dispute of that fact.
615
00:27:58.173 --> 00:28:02.980
I mean, Ms. Rosenfeld has relationships with lenders,
616
00:28:02.980 --> 00:28:04.511
but she can't go forward-
617
00:28:04.511 --> 00:28:06.583
Counsel, to that point,
618
00:28:07.630 --> 00:28:11.010
were the parties given an opportunity to know
619
00:28:11.010 --> 00:28:15.000
that Judge Spicher was going to take judicial notice of it?
620
00:28:15.000 --> 00:28:19.105
Were they given an opportunity to essentially contest?
621
00:28:19.105 --> 00:28:21.250
So it's undisputed, but is it undisputed,
622
00:28:21.250 --> 00:28:23.344
because no one knew he was going to do it?
623
00:28:23.344 --> 00:28:28.200
Well, he didn't give any highlight,
624
00:28:28.200 --> 00:28:31.110
or premonition that he was going to take judicial notice
625
00:28:31.110 --> 00:28:31.943
of the fact-
626
00:28:31.943 --> 00:28:33.537
[Justice Georges Jr.] Is he supposed to?
627
00:28:33.537 --> 00:28:34.590
No, not at all.
628
00:28:34.590 --> 00:28:37.270
At the time, I felt that the reason
629
00:28:37.270 --> 00:28:41.069
why he asked for information regarding the companion case
630
00:28:41.069 --> 00:28:45.187
was to have a full picture of what other delays,
631
00:28:45.187 --> 00:28:47.730
in addition to all of the other hoops
632
00:28:47.730 --> 00:28:50.411
that Ms. Rosenfeld and Commcan had to jump through,
633
00:28:50.411 --> 00:28:52.490
are there additional delays?
634
00:28:52.490 --> 00:28:53.770
And so he just wanted to round out
635
00:28:53.770 --> 00:28:55.837
his understanding of the facts.
636
00:28:55.837 --> 00:28:58.330
That he took judicial notice was not
637
00:28:58.330 --> 00:29:00.960
something he forecasted to us at all.
638
00:29:00.960 --> 00:29:02.840
He didn't ask for further briefing,
639
00:29:02.840 --> 00:29:05.860
he just wanted to know the status of that case.
640
00:29:05.860 --> 00:29:08.620
I had mentioned that we had sought a bond,
641
00:29:08.620 --> 00:29:11.300
he wanted the information supporting that bond.
642
00:29:11.300 --> 00:29:13.880
There was never an issue that he presented
643
00:29:13.880 --> 00:29:16.363
that he opened up for further debate on that.
644
00:29:18.705 --> 00:29:20.760
[Chief Justice Budd] Any other questions?
645
00:29:20.760 --> 00:29:22.295
Okay, thank you so much, Counsel.
646
00:29:22.295 --> 00:29:23.527
Thank you so much.
647
00:29:23.527 --> 00:29:25.763
[Justice Georges Jr.] Thank you, Counsel.