March 12, 2019
Cannabis Foes Lose in Land Court on Traditional Zoning ArgumentBy James G. Wagner, with Caroline A. O'Connell and Conor J. Slattery
A Land Court ruling late last week chipped away at the several arguments raised by local opponents to a large proposed grow operation in Charlton, Massachusetts. See Valley Green Grow, Inc.
, 2019 WL 1087930 (Land Court, Foster, J.) Valley Green Grow, Inc. proposes to build a million square foot cannabis cultivation and processing facility on farm land in largely rural Charlton. Local opponents to the project have battled hard to prohibit the facility, after the town previously had adopted zoning that allowed such uses in certain zones in town. After facing an actual proposal for a large facility in such a zone, local opponents pushed through a general town by-law prohibiting recreational cannabis uses anywhere in town. At the same special town meeting, however, a change to the zoning failed to secure the needed two-thirds vote, required to amend zoning by-laws, to eliminate recreational cannabis uses.
Here are some takeaways.
First, cannabis uses are getting the same treatment in "stodgy old Land Court" that any other use might expect. The former stigma of cannabis had no apparent role in Justice Foster's decision-making. Since the Land Court (unlike Superior Court) famously seeks uniformity in approach between its six justices, one could expect the same neutral treatment in Land Court in future cases.
Second, the Land Court upheld the traditional rule that a town may not effect a zoning change by way of a general by-law. Once having allowed a use in certain zoning districts, thus creating certain protections and expectations for land owners, the town could not eliminate those uses and those protections by a bare majority vote of town meeting. This should be some comfort to developers of all stripes.
Third, the Land Court ruled that the Legislature did not alter traditional zoning versus general by-law rules by handing towns certain regulatory powers under G. L. c. 94G. Justice Foster ruled that a town might use either zoning or general by-laws to effectuate means and methods safeguards on cannabis operations but, having done so through zoning, could not reverse course through a general by-law.
The Valley Green decision does not, by any means, eliminate zoning as an important hurdle in cannabis regulation. Rather, the decision is a caution to towns, operators, and opponents that zoning can be a blunt instrument, requiring careful consideration before enactment and permitting.