The Massachusetts State Judicial Court in Boston. Credit: SJC website

Two major real estate attorney organizations have weighed in on an ongoing case before Massachusetts Supreme Judicial Court (SJC) that could alter the authority that municipalities and land courts have over cannabis licensing.

The case, which features a dispute between cannabis operator Bask Inc. and the City of Taunton where Bask applied to open an adult use dispensary, centers around the town’s zoning and licensing process. The SJC will have to decide whether or not the Land Court was acting within its authority when it halted the city’s ability to grant adult use licenses while weighing an appeal from Bask. 

“The Amici and their members have a special interest in ensuring that the scope of relief that may be granted pursuant to G.L. c. 40A, §17 is full and complete, and that when zoning appeals are taken to the Land Court, as authorized by the Zoning Act, that the Land Court has the full panoply of equitable remedies at its disposal,” said the 38-page amicus brief filed with the SJC on Mar. 25 by the Real Estate Bar Association and the Abstract Club, a volunteer organization of real estate lawyers.

Taunton requires prospective cannabis operators to obtain a special permit from its city council. The operator must subsequently obtain a local license to operate, which also comes from the city council. In the case of Bask, which was seeking one of the four available cannabis licenses in town, the company was denied the special permit.

Bask then appealed that decision to the Land Court. The Land Court is the term of the judicial division in Massachusetts that oversees zoning appeals, deed disputes and other real estate-related matters. While still in Land Court, the city scheduled hearings in November, 2020 to consider and potentially award cannabis licenses to applicants, excluding Bask.

The city argued both that the Land Court was wrong to overturn the special permit denial and that it also improperly exerted authority over the town when the Land Court allowed an injunction against Taunton to block it from awarding any cannabis licenses to other applicants.

“The Land Court Erred in reversing the denial of Bask’s special zoning permit by the Municipal Council of the City of Taunton,” said the city’s 224-page brief to the SJC. “The Land Court further erred in purporting to direct and order the City of Taunton to take certain actions and to refrain from others in relation to licensing proceedings which had not yet begun, and for which Bask did not ever apply fully or in a timely fashion.”

Bask argued that the Land Court’s decision, which fell in Bask’s favor, should be upheld.

“The Land Court’s findings were clearly supported by the uncontested evidence and as such should not be disturbed,” said the 181-page brief Bask filed with the SJC.

The appellate court ordered that the case be elevated to the SJC last December.

Meanwhile, the Real Estate Bar Association for Massachusetts and the Abstract Club got involved in order to preserve the Land Court’s authority.

“Here, where the defendant/appellant Taunton City Council sits as both the special permit granting authority under Taunton’s zoning ordinance, and the municipal licensing authority under the general city ordinances, there should be no question that the City Council is under the Land Court’s jurisdiction,” said the amicus brief from the two legal organizations.

“If the municipal licensing process was allowed to proceed without Bask’s involvement, then even if the special permit denial ultimately was overturned (as happened), the municipal licensing process would have proceeded without Bask, and Bask would have been left behind with a hollow victory in its zoning appeal.”Representatives for Bask, the City of Taunton and REBA will go before the full Supreme Judicial Court for oral arguments on Wednesday morning, April 6.

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Zack cut his journalistic teeth covering high school sports in the south before spending a decade covering local government, politics and the courts in the Boston, Massachusetts area. He's previously written...