-: SJC 13198, the Haven Center, Inc v. Town of Bourne.
-: Okay, Attorney Zender.
-: Thank you, Madam Chief Justice and good morning justices.
My name is Ben Zender,
and I'm here on behalf of Haven Center, Inc.
The more I read this case,
the simpler it gets to me.
-: [Chief Justice Budd] Oh, good, good, do tell.
(justices chuckling)
-: The question really is;
Is the general bylaw,
that the town of Bourne passed, a zoning bylaw?
If it's a zoning bylaw,
it has to have been passed,
under the dictates of 48 section five.
And it has to afford the landowners
the protections of 48 section six,
provide to an owner whom submits an A&R Plan
to the planning board and the town clerk,
in advance of the bylaw.
-: And you're gonna explain why this is a zoning bylaw?
-: I will, thank you, Chief justice.
It's a zoning bylaw,
because it does nothing more, nothing less,
than regulate what you can do,
in a particular location of the town.
And the pivotal case this matter is, is Lovequist.
Because it's uncontested that,
if it's a zoning bylaw,
it has to meet those requirements.
Lovequist is the case that the town points to
as authorizing a town to pass a regulation,
that regulates a particular use of land.
It's not a zoning bylaw.
But Lovequist in its sort of pivotal statement.
And I brought one case up here with me just to look at.
Says that,
"We're reluctant to classify the instant bylaw."
In this case, in this case in Lovequest,
it's a wetlands bylaw.
As a zoning measure,
for the reason that article 15 manifests,
neither the purpose nor the effects,
of a zoning regulation.
The Dennis Ballot does not prohibit or permit
any particular listed uses of land,
or the construction buildings,
or the location of businesses or residences.
The bylaw that Bourne passed,
doesn't attempt to regulate
the use of marijuana in the town.
It doesn't regulate any of the aspects.
It's not a licensing bylaw.
It's not a health bylaw.
It doesn't say where you can operate.
It just says you can't do it anywhere in the town.
And for that reason,
it really can't be interpreted as
anything other than a zoning bylaw.
Now, because...
-: Ask you, in your effort to simplify the case.
Can you also address what we do with the RECO decision then?
Because RECO seems to suggest that one of the tests,
for whether or not something's a zoning bylaw,
as opposed to a general bylaw,
is the history of the treatment of such things.
-: Yeah. Thank you, justice, my Lord.
Yes, and I think that justice hit it on the head.
It's one of the tests,
meaning both RECO and Spenlinhauer,
which are really the two cases,
in the Commonwealth,
RECO being an SJC case
and Spenlinhauer being an appeals court case.
Both point to the existence of a zoning regulation in town,
that attempt to regulate that particular subject matter.
In Spenlinhauer, it was a parking band,
In Reco, it was licensing in mobile homes.
But that was just one of the tests,
in both of those cases,
the court was clear to say,
that if they didn't make the finding that they found,
then they would be derogating from the specific
legislative intent of 40th section six,
which is to provide particular protections to landowners.
So they could use and develop their land.
So it's a test.
And if we carry this through to its fullest,
that would mean that if a town
has not regulated something in the past,
then they wouldn't be able
to regulate something as a zoning bylaw.
They could just pass a general bylaw.
And that brings up the caution that Reco shows us.
Which is that the court caution,
that we have to be careful,
to attempt to regulate things as non zoning bylaws,
because in Reco, the courts suggested
that somebody who didn't like an apartment you use,
could somehow use a general bylaw to prevent that.
So both of those courts in both of those cases,
use it as part of the test,
but the underlying rationale,
is whether or not the implementation of the bylaw,
is inconsistent with the express legislative purpose
from 40-A, that businesses and landlords
be given adequate protections for the use of their land.
-: I have a problem with making this simple
if I look at 94G-3a2.
So 94G-3a2 says basically,
that if a town voted no on the 2016 ballot,
on the question of limits,
they can then pass a town bylaw doing this.
Isn't that right on point here,
that we have a town that voted no.
And that ballot question,
and therefore they have this right through a town bylaw,
to do exactly this,
which is prevent this from happening.
So why isn't that the simple way of handling the case?
-: Thank you, Justice Kafker.
Well, and I think I agree with the town in this respect.
A town has an absolute right to pass a zoning by law,
to prohibit marijuana within the confines of the town,
and 94G-3a2, sets forth the way that you do that.
-: But I thought 94G-3a2 draws a distinction,
or at least the CCCs interpretation of it,
draws a distinction between zoning stuff,
and town bylaw stuff.
And. -: It does.
-: And they're saying that you can do
exactly what the town did here,
which is, cause it's a different process.
It's the whole town government voting it, right?
-: Except in order to read 3a2,
you have to go back and read 3a1,
because 3a1 says that no regulation,
it says no zoning regulation,
shall operate to prevent the conversion
of a medical marijuana treatment center,
or to limit the number of license,
below the number set forth in 3a2.
-: Well, but don't they distinguish that,
cause it says no zoning, right?
-: The only, if you,
well I know the courts have looked at 94-G section 3,
the only place that statute,
the word zoning appears, is 94G-3a1,
where it says essentially,
a town has the right to pass
reasonable regulations of marijuana,
except that no zoning regulation,
shall be used to prevent the conversion
of a medical marijuana treatment center
or to limit the number of licenses,
below the number in 3a2.
And 3a2 sets forth the procedure,
for how you do limit that number of licenses.
And by saying, look, if the town voted no,
then it can go right to a town meeting.
It can pass a town meeting prohibition prior to 2019.
If a town voted, yes, it can go to town meeting,
but it also has to go to the ballot. .
-: But I guess, I don't really understand
how that is helpful to your client.
Because it sounds like the legislature understood in 3a1,
the use of the word zoning,
and used it when it wanted to use the word zoning.
But then in 3a2, it doesn't use the word zoning.
And usually as you know,
again, enough construction,
is that if the legislature meant to limit towns
to zoning bylaws, they could have said so.
As they did in 3a1.
-: Thank you, Justice Wendlandt.
I think in a reading of the statute,
3a1 says what you can and can't do.
3a2 says how you do it.
Meaning it says in 3a1,
you can pass reasonable regulations,
no zoning bylaw shall be used,
to prevent conversion or limit the number of licenses.
And that accept as set forth in 3a2.
And then 3a2 sets forth that particular procedure,
which I might add is designed,
to facilitate the activities of adult used marijuana,
in the Commonwealth.
The entire statute as this court recognized in Comcast,
is designed to facilitate.
And as this court said in Comcast,
it was specifically designed to facilitate
the conversion of medical marijuana treatment centers
to adult use centers.
So the first section says what you can and can't do.
3a2 actually provides a facilitatory mechanism by saying,
look, if you voted yes on marijuana,
you can't just go right to town meeting.
You have to go through a ballot procedure as well.
So 3a2 limits the ability of the town,
to prohibit marijuana.
-: And so. -: Except,
-: Oh, sorry, go ahead Chief.
-: So what did they do wrong?
Tell us what, how they did wrong.
-: Here's what they did wrong.
What the town did wrong was,
and understand the town had already passed
a marijuana health regulation.
They had already used 94G section 1,
to pass a health bio,
which regulated the health aspect of marijuana in the town.
As the court could see from the record and from the briefs,
there was essentially a range war going on
in the town of Bourne,
as to whether or not marijuana would be allowed.
There was a moratorium,
there were two articles to ban general,
and both general and zoning, which were defeated.
Then there was a petitioned article to defeat it,
which was passed by roughly a 56% margin.
Then there was a town sponsored article regulated,
which was defeated.
It was never really the quorum
to pass a zoning bylaw.
So what the opposition did,
was they passed it as a general bylaw.
Now it's antithetical to the statute it's self.
If the statute says that no zoning bylaw,
shall operate to prohibit conversion
of a medical marijuana treatment center,
or a licensee, I'm sorry, to adult use.
Why would the statute allow a town
to use a lower quorum of vote
under a general ballot to affect the same purpose?
It's inconsistent with the purpose.
What the town should have done.
-: But isn't, by the way,
isn't that the way the CCC actually interprets that?
-: It's hard. When you look at the CCC regulations,
what they really do is they really just restate the statute.
They don't in my reading,
they don't dig into.
-: I was just looking at the record on 488 and 489,
where we go through what the CCC cannot prohibit
conversion from medical.
And they talk about zoning bylaws.
But then in the next page,
they say, you know,
you can do this through a town bylaw.
It looks like.
I mean, I understand it's not the clearest thing on earth.
-: Yeah.
I have to say by way of personal comment,
I think 94-G section 3 is not a well written bylaw.
I have read it a number of times,
and every time I read it,
I have to learn it all over again.
What the CCC does is,
they just restate the statutory statement,
that says a town bylaw.
It doesn't differentiate between zoning and regular bylaws.
The purpose of it.
-: They do, they do on, if you read their sentence.
It goes, if a municipality voted no on the initiative,
then the governing body may limit or ban the number,
through by passing a bylaw or ordinance.
Which is different than on the previous page,
where they talk about zoning bylaws or ordinances,
are not permitted to operate. So they,
I mean, either they're being careful or dense.
-: I have two comments on that. First of all,
and I'd like to answer your question,
pivot to something else by using what,
what Justice Kafker has brought up.
First of all, it's a statement,
put out by a regulatory agency,
of their interpretation of the law.
I'm not sure they were looking at this particular issue
when they did that,
but it's a statement of regulatory agency,
which I don't think is binding.
So I don't think that really can educate this court,
in any meaningful way.
I don't think it does so.
And thank you, your honor.
My second point is lost on me now.
So I'll answer further the questions
the court might have, so.
To go on, if the court were to allow this bylaw,
to stand as a zoning bylaw,
then what the court's doing,
is it's opening up a,
as Reco put out,
it's opening up the specter,
that any use that somebody doesn't want in a town,
can be prohibited in a summary fashion,
by the adoption of a general bylaw.
And looking at the record in this case,
it's pretty clear what the applicant did,
and what the applicant did here was came into town,
received letters of support from medical,
from the board of selectmen,
signed an option to lease.
Leased the property.
Began the licensing process.
Receive their medical licenses.
Literally invested, and the record supports this,
millions of dollars,
to have a general bylaw come in place to shut it down.
And that's exactly what 48 section,
the legislative intent of 48 section 6,
is intended to prevent.
It's intended to prevent,
this taking away of the rights of businessmen,
and land owners.
-: Is your client really,
because your client got permission
to do a medical marijuana store.
And so the expectation is not necessarily,
they're gonna be able to convert it,
at the time they begin this process, right?
It's a little different than if you know,
there's a zoning regulation passed,
and your client has been given permission
to do a commercial establishment, right?
It's a little different, right?
The expectations are different.
-: It is. And as the court may be aware that,
because of the way that marijuana was rolled out
in the Commonwealth, you know,
medical treatment centers were authorized first by statute.
And the companies came in and developed these strategies,
and the process of creating these treatment centers.
And then when adult use was enabled by the legislature,
adult use became a much simpler,
and much more profitable way to operate in the Commonwealth.
And that's why the treatment centers are
really not that common.
And so what the applicant did,
understanding the change in the law,
and as this court has held,
is completely permissible.
You know, filed an approval not required plan,
with a town to protect the ability
to have that use in the town.
And this court has held,
that the simple filing of an ANR plan,
plan approval not required plan,
for the express purpose of protecting
those 48 section 6 rights,
is a permissible use of the plan process.
And so, although Justice Kafker is right,
the applicant came in and first got that license,
94-G section 3 specifically states, you can convert.
And they protected that right,
by filing that ANR plan.
So if I had to leave the court with one idea,
this petitioned article by the town,
is really an end run around zoning.
And there's nothing in 94-G section 3,
that evidences any legislative intent
to aggregate 48 section 6,
with regard to medical,
I'm sorry with respective adult uses.
And if the legislature wanted to make adult use marijuana,
something that wasn't able to have
those protections of 48 section 6,
they would've put it in the statute.
And finally, again,
reading this statute, as the court recognized in Comcant,
this is not a prohibitory statute,
it's a permissive statute.
And I think the court has to read the statute in that way.
And thank you.
-: All set.
Okay. Thank you.
-: Thank you all.
-: Okay. We're ready.
Attorney Troy.
-: Chief Justice Budd, and justices
of the Supreme judicial court.
My name is Robert Troy,
and I represent the town of Borne,
and the select board.
There are two, at least two universes of regulation,
and it's fair to say that my brother is arguing one universe
and I'm on a different universe,
because I suggest that this case is not about zoning at all,
but instead a question of whether or not,
one of the non-zoning regulatory mechanisms,
which is described in a treatise,
that I've cited in my brief, can be utilized.
So I think the town would have three points to make,
with respect to this question.
The first is; Is the general bylaw,
a valid municipal enactment,
pursuant to 94-G chapter 40 section 21 1,
and the home rule amendment.
As these statutes were analyzed
in very, very important decisions,
issued by this court on August 30th.
And even though those two decisions
dealt with zoning bylaws,
the language in those decisions,
is critical in interpreting the scope
of non-zoning mechanisms,
with respect to deferring to the legislature,
the decision as to what is correct public policy,
but more importantly,
in paying attention to the legislative words,
as a window to understand the intent of the legislature.
So I would.
-: Have an example, case, regulation anywhere,
where a use is prohibited by a general bylaw?
-: I do not, but I would suggest, your honor.
-: Isn't that an indication that maybe,
only a zoning bylaw can prohibit a use?
-: It may be correct that only a zoning bylaw
can prohibit a use.
However, there is no use prohibited,
under the general bylaw.
If you look at the general bylaw,
it has none of the ear marks of a zoning regulation.
It has no zoning districts.
It does not change any of the uses.
It does not change the zoning map.
The use which the Haven Center says,
that it qualifies under a retail use is unchanged.
And so I think if you look at the statute,
the intent of the statute,
which I respectfully disagree with my brother,
I think it's a very complicated statute,
but I think it's a very carefully written statute,
but I think the language in the cases that I referred to,
in the Comcan case in particular,
suggest that we have to look at the language
that is used by the legislature.
And when used in one portion of the statute,
and not used on the other portions of the statute.
-: But, but counsel,
if you can't give me one example,
of the use of a general bylaw to prohibit a use,
doesn't that indicate that when 94-G section 3a2 says
you can prohibit this through a bylaw,
that it inherently means a zoning bylaw?
-: Well, I think that the statute says that a zoning bylaw,
the one time as my brother has pointed out,
that is utilized.
A zoning bylaw cannot prevent the conversion
of a medical marijuana facility,
to a recreational or other type of facility
under the statute.
I think what that's saying is,
that in that particular instance,
unless you have a zoning bylaw,
it is by use of that term.
It permits and authorizes a general bylaw.
And I believe the reason for that.
And I refer to the Calora case,
which this court decided,
and is cited on page 47 of my brief;
gave me a window to understand,
that what the issue here is actually vested rights.
So let me use this case as an example
of why the legislature would say
that you can only prohibit something through zoning.
And allow it to be allowed under as a general bylaw.
And that's, in this case,
at the special town meeting,
there were two efforts.
One was to pass a zoning enactment.
The other was to pass a general bylaw.
My brothers client filed an ANR plan,
six days before the meeting.
Which would have, had the zoning bylaw passed,
given him the protection.
The use protection that we re referred to.
At the time, no one knew what the town meeting
was going to do. And it was,
as my brother has said,
it was a spirited battle,
which came up repeatedly.
But ultimately the town meeting
decided to pass a general bylaw.
-: Can I just probe that?
Cause I don't get it yet.
Cause the 94-G says you can't use zoning
to prevent conversion.
You've gotta allow conversion right?
What is the difference between doing it through zoning,
and doing it through a general bylaw,
that says you can do it the other way?
Is it because it's a better reflection of the town's intent?
I just don't understand it.
Is it, why would one be allowed and not the other?
-: It's because of vested rights.
Because if the idea that the legislature had,
was to give communities the local option
to ban recreational marijuana,
that option would be defeated.
If it were done under zoning,
because you could do just as my brother's client did,
any number of people could file through zoning protection,
which would defeat the purpose of the local bylaw.
In other words, the local option.
-: Can I push you on that?
Because how is a practical matter that gonna work?
If the town has, again,
we're dealing with the town.
having voted no on recreational marijuana, right?
How would someone have had a vested right in;
how would someone be grandfathered with a right to convert?
I'm confused by that.
-: If it's a zoning bylaw and you file an ANR plan.
As of the date of the filing of the plan,
if it is approved, it is passed.
So six days beforehand, in this case,
my brother's client filed an ANR plan.
If the zoning bylaw were passed by the town meeting,
instead of the general bylaw,
he would have the right to have a marijuana facility,
a recreational marijuana facility,
because he had protected his right under zoning.
That would defeat what the town voters wanted to do.
-: Even though it was a moratorium under zoning,
at the time that said you couldn't,
we're not gonna decide the recreational marijuana.
By filing an ANR, he could preserve the right to do,
he would have the right to do that unilaterally?
-: Yes, your honor.
And, if that were done.
-: Is there a case that says that,,
that I should look at,
cause that confuses me a little bit.
-: There are cases under chapter 41, 81 P.
I don't have that right here before me.
-: The cases where something isn't legal yet,
where you file an ANR.
I mean, again, we're not dealing with something
that's permissible under the zoning laws,
and you filed an ANR,
we're dealing with something
that isn't permitted at the time.
And then you file an ANR,
and that gives you the right to do it?
I'm not a zoning lawyer, but that seems odd.
-: I understand you, your honor.
At the time that the ANR was filed,
there were no zoning prohibitions,
against recreational marijuana and therefore.
-: But there was a temporary moratorium preventing it.
-: But the moratorium was about to expire,
and the moratorium would not interfere
with the statutory protection,
given the use that was grandfathered,
as of the date of the filing of the plan.
And so where the problem is,
is that would then defeat the legislator's goal
of giving communities local options.
And this is exactly what,
if you look at what this court said in the Colora case,
it talked about moratoriums, exactly that issue.
And it talked about, there's a concern that they give,
I can't quote the exact word,
but something that they presented opportunities
for unwise exploitation,
which the zoning bylaw amendment would prevent.
And so what we are suggesting your honor,
is that the legislature was very aware of the distinction.
They wanted to guarantee a local option.
And they understood that if they allowed zoning,
with its vested rights, to trump that,
therefore the whole statutory scheme would not work.
And for that reason, the legislature determined and decided.
And I think that the language,
in both the west street case and the Comcast case,
if you look at those decisions,
and very carefully, and I think very rightly,
both summarizes scope of the home rule amendment,
but it also it focuses on the broad scope,
that goes back to, I believe it was 1692. chapter.
-: Can I just ask a question
about the difference, between the two?
You said both of those options,
the town bylaw and the zoning bylaw,
were on the table at the time of the town meeting, correct?
Is there some difference procedurally,
to getting one enacted versus the other,
other than just at the town meeting?
-: No.
The only difference is that the quantum of vote is different
and there are procedural requisites for zoning an act,
but that do not apply to a general bylaw. So.
-: General bylaw is, is easier.
This has, you just need 51% of the vote where zoning bylaw,
you need two thirds.
-: Correct. And,
and those are all legislative determinations that the
legislature could change at any time, but has not.
I think the important thing that the town would respectfully
like to focus on is the,
the language in the two decisions that the court issued at
the end of August,
that talk about the scope of non zoning regulation and how
that has been both. No.
-: I, I, I get that.
I just wanna make sure in, in the record,
cause I haven't dug deeply into it, but is, is there,
is there a transcript of the town meeting?
-: No, there is not your honor.
-: Okay.
The fact that the applicant had filed the ANR six days
before in the consequential effect of that was that
discussed at the town meeting.
-: I, I do not believe it was your honor.
As a matter of fact, I,
I don't even believe that that the town meeting was aware of
that.
I think, I think what the, the, as a matter of fact,
at the town meeting,
the planning board spoke in favor of an adoption of zoning
bylaw. And, and quite frankly, so did I,
when I was called to the podium,
but the town meeting had a will of its own. And I,
I suggest that whether or not anyone agree,
ease with its will as a matter of law, unless you,
you honor their decision here,
you are closing the door on the ability of municipalities to
use the home rule amendment and the municipal police power
to regulate subjects other than marijuana. This, this,
this is a much,
it happens be talking about the marijuana statute.
But if you look at the two decisions that the court and,
and particularly the, the very,
very succinct discussion about the home rule amendment that
was in the west street associate's case,
I think that that is the issue that, that, that the,
it might want to focus on because that is going to be an,
an important tool.
As a matter of fact, the, the, the,
the section of bur broski,
which I cited in my brief talks about the many,
many areas of non zoning regulation. And finally,
I wanna point out that what this is very similar to is the
regulation of alcohol that was adopted by statute
immediately upon the end of prohibition.
And that statute has a striking similarity to the marijuana
statute in which the, the states said,
we want to give cities and towns the option to regulate
these, these, these questions by a vote of the voters.
And that's how it is done.
-: We can tell anything from the requirements
of what it takes to pass zoning,
as opposed to the bylaw,
because we have two issues going on in this case that are
reflected in the statutes.
One is that we want to be able to have,
if you have medical marijuana,
we want to be able to have an easy conversion,
but the other issue we have going on is if you voted no in
the referendum,
you have the opportunity to say no to marijuana in your
town.
Is there anything about what it takes to pass zoning, ORs,
or a bylaw that reflects what the outcome should be here?
-: Well, I, I think you could do it under either way,
your honor, but in, in this situation,
I think we should focus, right?
Suggest that we should focus on the ability of the town to
use the general bylaw to do that. And on that point,
I would add,
if you look at the statement of undisputed facts,
which are on page 7, 7, 7 of the transcripts undisputed
facts, 31 through 35,
I suggest for close the opportunity for the appellant here
to suggest that this is a zoning regulation,
because those undisputed facts,
which he agreed to and the client agreed to clearly indicate
that the town of born had no history of regulation by zoning
of this subject.