Massachusetts’ highest court wondered whether or not cannabis company Bask Inc. filed in the proper venue when it appealed a special permit denial for an adult use dispensary from the City of Taunton during oral arguments on April 6.
A legal win for either side could cement authority for cannabis licensing between municipalities and the Land Court.
“I agree with you that land courts are the experts on special permits. But isn’t there a simplicity in going to Superior Court and getting an injunction?” asked Associate Justice Scott Kafker. “Why not stick to a simple approach. Eventually you’re going to be in Superior Court anyway.”
The full Massachusetts Supreme Judicial Court heard arguments over whether or not the state’s Land Court, which oversees zoning, permitting, and housing matters, had the authority to halt a municipal cannabis licensing process in Taunton after it was determined that the city improperly denied Bask a special permit.
Some of the justices wondered how ruling in favor of the city might undermine the legitimacy of Land Court proceedings.
“Is it a paper judgment where nothing happens because they lost their place in line?” asked Associate Justice Frank Gaziano about Bask’s Land Court win.
Attorney George Field, who represented the City of Taunton, argued that Bask could have filed an injunction in Superior Court if the company wanted to properly halt the issuance of licenses following its win in Land Court.
“I think there are options that the applicant has. One of the options would have been to file a complaint in Superior Court,” said Field.
The justices questioned Bask’s attorney on whether or not the company had erred in not going to the Superior Court after their Land Court win in order to halt the city’s licensing process.
Attorney Richard Burke, of Beauregard & Burke, argued that it would have been difficult for Bask to establish standing in Superior Court based solely on its claim for a special zoning permit.
“You can’t apply for a license until you have a special permit, so there was no way to make a claim for a license until the special permit issue was adjudicated,” he said.
Further, Burke noted that Bask was not left with enough time to appeal to the Superior Court. Within a week after the Land Court ruled in favor of Bask, on Dec. 23, 2021, the City of Taunton held a hearing with other prospective cannabis operators where three were awarded licenses. Although the city had not hit its license cap at that point, one of the license recipients will open about a quarter mile away from where Bask hoped to open.
“This was all happening within a matter of days,” said Field. “There would not have been time to file another case to try to get an injunction.”
Associate Justice Scott Kafker noted that the state’s cannabis law does not specify whether Land Court or Superior Court are appropriate for licensing and permitting conflicts. He also suggested that Bask could potentially have a remedy it can realistically pursue in court without obtaining a license.
“Isn’t money damages enough to compensate them?” he asked. “If they’re denied the permit improperly and then they lose the chance to get a license, can they sue the city for money damages?”
Without directly responding to the question about money damages, Field said that the City of Taunton had increased its cap on cannabis licenses and that two licenses currently remain open, which means Bask could theoretically have a chance to win one.
Despite that detail, Kafker remained skeptical about Bask’s chances, considering that the city had already approved a competing dispensary close to where Bask intended to open.
“What are the odds of that happening when the city already licensed a place a quarter mile away?” he asked.
