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Bourne’s Ban on Recreational Marijuana Establishments is Not a Zoning Bylaw and So is Valid Featured

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The Massachusetts Supreme Judicial Court, in its decision in the case of Haven Center, Inc. v. Town of Bourne, 490 Mass. 364 (2022), upheld as valid the Town of Bourne’s general bylaw ban on recreational marijuana establishments. 

In 2016, Massachusetts voters enacted a state ballot initiative legalizing the sale and use of recreational marijuana. This law, codified as M.G.L. c. 94G, gave individual cities and towns the ability to ban recreational marijuana establishments from their communities if the majority of voters in the municipality voted “no” on that ballot initiative and then enacted such a local ban by December 30, 2019. 

The majority of the voters in the Town of Bourne on Cape Cod in 2016 had voted “no” on this ballot initiative. In May 2017, the Town then voted to impose a temporary moratorium on recreational marijuana establishments. It would last either until November 30, 2018, or until the Town enacted zoning bylaw amendments to regulate such establishments. 

In October 2018, two bylaw amendments were presented at Bourne Town Meeting. Warrant Article 14 (Article 14) proposed an amendment to Bourne’s general bylaws to prohibit all commercial recreational marijuana establishments in Town. Warrant Article 15 (Article 15) proposed amendments to the Town’s zoning bylaw that would regulate recreational marijuana establishments.  

An amendment to a general bylaw requires a simple majority vote while an amendment to a zoning bylaw requires a two-thirds majority vote. Article 14 did pass by a simple majority vote, but Article 15 did not pass after failing to receive the requisite two-thirds majority vote.

The Haven Center, Inc.—a company seeking to operate a retail recreational marijuana establishment in Bourne—filed suit in state court seeking a declaratory judgment that Article 14 was invalid. The Haven Center argued that Article 14 violated the Home Rule Amendment because Article 14 constituted a zoning bylaw and was inconsistent with the Zoning Act, M.G.L. c. 40A, §§ 5-6. 

The Home Rule Amendment allows municipalities to enact local ordinances or bylaws that are not inconsistent with the Massachusetts Constitution or laws. The Haven Center argued that Article 14 as a matter of law should be regarded as a zoning amendment—and not a general bylaw as the Town had characterized it—because it prohibited a particular use of land. 

The argument continued that since Article 14 was a zoning bylaw, its enactment procedure (no public hearing and passed by a simple majority vote) violated the procedural requirements set out in c. 40A, §§ 5-6. 

The language in M.G.L. c. 94G indicates that a municipality may prohibit recreational marijuana establishments through general bylaws or zoning bylaws. Nonetheless, under Massachusetts court precedents, even if the Town intended Article 14 to be a general bylaw, it could be deemed a zoning bylaw subject to M.G.L. c. 40A if certain factors were met. 

Such factors are whether other municipalities have adopted similar bylaws as zoning bylaws, whether the municipality whose bylaw is being scrutinized has previously regulated the topic through comprehensive zoning ordinances, whether the bylaw is intended to prohibit or permit any particular listed uses of land, and whether the dominant purpose of the bylaw pertains to interests typically addressed by the zoning process. 

The SJC, hearing the case on appeal, ruled that Bourne’s temporary moratorium of recreational marijuana establishments was not a comprehensive zoning scheme and that Article 14 was not a zoning bylaw simply because it indirectly prohibited the use of land in Town for recreational marijuana establishments. Because the Court ruled that Article 14 was not a zoning bylaw, it was not subject to the procedural requirements of M.G.L. c. 40A.

The Haven Center’s second argument was that Article 14 was inconsistent with the provision under M.G.L. c. 94G, § 3(a)(1) that prohibits municipalities from using zoning bylaws to prevent the conversion of a medical marijuana treatment center into a recreational marijuana establishment. 

The SJC held that Article 14 was not subject to § 3(a)(1) because § 3(a)(1) only prohibits zoning bylaws that prevent the conversion of a medical marijuana treatment center into a recreational marijuana establishment. Because the SJC determined Article 14 was not a zoning bylaw, § 3(a)(1) did not apply to Article 14. 

The Haven Center’s final argument was that Article 14 was inconsistent with the provision under G.L. c. 94G, § 3(a) that prohibits “unreasonably impractical” bylaws. The SJC ruled that the specific state statutory authorization to adopt a complete ban of recreational marijuana establishments under § 3(a)(2)(i) superseded any general requirement that a bylaw not be unreasonably impractical.

Thus, under the principles of Home Rule, bylaw application, and statutory interpretation in Massachusetts, the Town of Bourne succeeded in prohibiting all commercial recreational marijuana establishments in Town.


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Caroline E. Smith, Esq.

CAROLINE SMITH, ESQ. is an Associate Attorney at McGregor Legere & Stevens PC.  She is a member of the Massachusetts and Boston Bar Associations and the Real Estate Bar Association for Massachusetts. She is active with several environmental, land use, alumnae, and law related organizations.

Ms. Smith is a graduate of Saint Michael’s College (VT) and New England Law | Boston. She participated in the Justice Sandra Day O’Connor Honors Program at New England Law | Boston and graduated magna cum laude.

While in law school, Ms. Smith joined the New England Law Review as an associate member during her 2L year and then served as Business Managing Editor during her 3L year. She also participated in the Environmental Law Society. 

Also while in law school, Ms. Smith served as judicial intern for the Honorable Judge Casper at the United States District Court for the District of Massachusetts; judicial intern for the Honorable Justice Gaziano at the Massachusetts Supreme Judicial Court; 3:03 Certified Student Practitioner at the New England Law | Boston Clinical Law Office; and intern at the Massachusetts Division of Administrative Law Appeals.

Ms. Smith has authored papers and publications on contractual remedies, sovereign immunity, and attorneys’ fees on civil litigation. She is fluent in using Westlaw, LexisNexis, HeinOnline, Bloomberg Law, and Relativity.

Prior to attending law school, Ms. Smith worked as a paralegal at Campbell Conroy & O’Neil, P.C. in Boston, MA.

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