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Valley Green Grow, Inc. v. Town of Charlton

Massachusetts Land Court

March 7, 2019, Decided

MISCELLANEOUS CASE NO. 18 MISC 000483 (RBF)

Opinion

 [*99]  MEMORANDUM AND ORDER ALLOWING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

On November 4, 2016, the voters of the Commonwealth voted YES to Question 4, authorizing the legalization, regulation and taxation of recreational cannabis in the Commonwealth of Massachusetts. Among those voting YES were a majority of the voters of the Town of Charlton (Town). After the ensuing enactment of G.L. c. 94G, regulating recreational marijuana in Massachusetts, the plaintiff Valley Green Grow, Inc. (VGG) entered an agreement with plaintiffs Charlton Orchard Groups, LLC (COG) and Nathan R. Benjamin, Jr. and Catherine Benjamin to purchase their farm in Charlton. VGG wants to build a 1,000,000 square foot indoor marijuana growing and processing facility on the property, consisting of 860,000 square feet of greenhouses, a 130,000 square foot post-harvest processing facility, and 10,000 square foot cogeneration facility. VGG approached the Town in the spring of 2018, filed a preliminary subdivision plan, and began negotiations for a development agreement and a host community agreement. At its May 2018 annual town meeting, the Town adopted by a two-thirds vote Warrant Article 27, amending the Charlton Zoning [**2]  Bylaw (zoning bylaw) to allow certain recreational marijuana uses in the agricultural, community business, industrial and business enterprise park use districts by special permit. A group of citizens including intervenor Gerard F. Russell and other neighbors of the property, unhappy with the  [*100]  zoning amendment, brought two warrant articles to a special town meeting in August 2018. Warrant Article 1 sought to rescind the previously adopted amendment to the zoning bylaw that allowed marijuana uses. Warrant Article 2 sought to adopt a general bylaw to ban all non-medical cannabis uses within the Town. While a majority voted for Warrant Article 1, it failed to obtain the two-thirds majority necessary for an amendment to the zoning bylaw. Warrant Article 2 passed by a majority vote.

The plaintiffs now seek a declaration under G.L. c. 240, § 14A, and G.L. c. 231A, §§ 1 et seq., that Warrant Article 2 is invalid, and have brought a motion for summary judgment. As set forth below, the motion is allowed. Because Warrant Article 2 was an improper attempt by the Town to exercise its zoning power through a general bylaw by regulating a use already regulated in its zoning bylaw, it is invalid and of no force and effect.1

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27 LCR 99 *; 2019 Mass. LCR LEXIS 29 **; 2019 WL 1087930

VALLEY GREEN GROW, INC., CHARLTON ORCHARDS GROUP, LLC, NATHAN R. BENJAMIN, JR., and CATHERINE L. BENJAMIN v. TOWN OF CHARLTON and JOHN P. McGRATH, DEBORAH B. NOBLE, KAREN A. SPIEWAK, DAVID M. SINGER, JOSEPH J. SZAFAROWICZ, as are Members of the Board of Selectmen of the Town of Charlton GERARD F. RUSSELL, Defendant-Intervenor

Subsequent History: Summary judgment granted by, Summary judgment denied by Valley Green Grow v. Town of Charlton & John P. McGrath, 2019 Mass. LCR LEXIS 157 (Aug. 14, 2019)

CORE TERMS

bylaw, zoning, regulation, marijuana, summary judgment motion, ordinance, recreational, municipal, town meeting, parking, Host, marijuana use, two-thirds, cannabis, site, majority vote, square foot, establishments, Undisputed, development agreement, actual controversy, special permit, material fact, Intervene, invalid, voted, amicus brief, summary judgment, agricultural, non-medical