Bask, Inc. v. Mun. Council of Taunton

• Decision Date: 21 July 2022
• Docket Number: SJC-13218
• Citation: 190 N.E.3d 1016
• Parties: BASK, INC. v. MUNICIPAL COUNCIL OF TAUNTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 N.E.3d 1016

BASK, INC.

v.MUNICIPAL COUNCIL OF TAUNTON.

SJC-13218

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 6, 2022

Decided July 21, 2022

George P. Field, for the defendant.

Richard E. Burke, Jr., New Bedford (Lisa Raimondi also present), for the plaintiff.

Shawn M. McCormack, Nicholas P. Shapiro, & Daniel P. Dain, Boston, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

WENDLANDT, J.

This case presents the question of the permissible scope of a Land Court judge's authority. Specifically, in connection with an appeal from the denial of a special permit, pursuant to G. L. c. 40A, § 17, a Land Court judge ordered the issuance of the special permit to the applicant; he also issued a second injunction that, in effect, enjoined a municipal licensing authority from conducting previously scheduled licensing proceedings to consider applications from nonparties themselves seeking licenses to operate a retail marijuana dispensary. We conclude that the second injunction exceeded the permissible scope of the judge's authority. Further concluding that the judge did not err in his factual findings or in his conclusion that the denial of the special permit was arbitrary and capricious, we affirm that portion of the judgment.¹

1. Factual and procedural background. We set forth the facts as found by the judge, leaving some disputed findings for later discussion. See Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 375, 909 N.E.2d 1161 (2009) ( Wendy's ).

a. Special permit. In September 2018, the city of Taunton (city) adopted as part of its ordinances chapter 222, which permitted the city to issue five licenses to operate recreational marijuana establishments in its highway business or industrial districts.² In August 2019, the plaintiff, Bask, Inc. (Bask), applied for a special permit (a predicate to receiving a license to operate a recreational marijuana establishment) for 400 Winthrop Street in the city's highway business district. In October 2019, the city's municipal council (city council), acting as a special permit granting authority under G. L. c. 94G, § 3, and city ordinance sections 222-1 and 440-304, denied Bask's special permit application. The city council cited concerns about traffic, economic impact, utilities, health and safety, location of the proposed project, and the general welfare of inhabitants.

Notably, in January 2020 (almost four months after denying Bask's application), the city council granted a special permit to a different applicant that proposed a site for a recreational marijuana establishment approximately one-quarter mile away from Bask's proposed site.³

Bask filed a single-count complaint in the Land Court under G. L. c. 40A, § 17,⁴ challenging the denial of its special permit application. Following a trial in August 2020 and posttrial submissions, the Land Court judge took the case under advisement.

b. Preliminary injunction. On October 30, 2020, with no decision from the judge and with hearings scheduled for November 4 and 10 to consider whether to issue any of the four remaining licenses to any of the five pending applicants, Bask filed a motion for a preliminary injunction, seeking to enjoin the city council from holding the scheduled licensing hearings and from issuing any of the four licenses to any of the pending applicants.⁵ On November 4, 2020, the judge allowed Bask's requested injunction.

On December 4, 2020, with licensing procedures on hold, the city council filed an interlocutory appeal from the preliminary injunction to a single justice of the Appeals Court pursuant to G. L. c. 231, § 118. On December 21, 2020, the single justice vacated the preliminary injunction, reasoning that the judge likely exceeded his jurisdiction. With the injunction vacated, the city council rescheduled hearings on the then-pending applications of the five nonparty applicants to occur on December 28 and 29, 2020. On January 5, 2021, Bask appealed from the single justice's decision vacating the preliminary injunction.

c. Merits decision and applications to stay injunction. Meanwhile, on December 23, 2020, the Land Court judge issued a decision in Bask's favor, finding that the city council's denial of Bask's special permit application was "pretext[ual]," arbitrary, capricious, and based on legally untenable grounds. He ordered that the city council issue the special permit; in addition, pursuant to G. L. c. 40A, § 17,⁶ which authorizes the Land Court to "make such other decree as justice and equity may require," he ordered specific licensing procedures that directly had an impact on the rescheduled licensing hearings for the nonparty applicants. The judge ordered that

"the special permit shall be issued in sufficient time for the plaintiff to apply for a license pursuant to Chapter 222-1 of the Ordinances of the City of Taunton and to participate as an applicant in any hearing held by the Municipal Council with respect to the issuance of licenses pursuant to said Chapter 222-1, and that the Municipal Council shall consider such application by the plaintiff for a license pursuant to Chapter 222-1 at any such hearing along with all other duly filed applications."

On December 24, 2020, the city council filed a notice of appeal. That same day, the city council filed two applications to stay the above quoted portion of the judge's December 23 order -- one in the Land Court, and one with the single justice of the Appeals Court. The Land Court judge scheduled a hearing on the city council's application for stay for January 5, 2021.

However, on December 28 and December 29, 2020 (the next business days after the judge's December 23 order),⁷ the city council held its previously scheduled hearings to consider the marijuana dispensary license applications of the five nonparty applicants. The city council awarded three of the remaining four licenses to nonparty applicants, some of whom had been awaiting a licensing hearing for as long as fourteen months. Bask did not participate in the hearing, and, as of the time of the licensing hearings, the city council had not issued a special permit to Bask.⁸

d. Contempt proceedings. On January 5, 2021, at the hearing on the city council's application to stay, the Land Court judge ordered Bask to file a complaint of contempt pursuant to Mass. R. Civ. P. 65.3, as appearing in 386 Mass. 1244 (1982), on the ground that the city council violated the judge's December 23 order. Bask did so. On January 15, 2021, the city council filed a third petition under G. L. c. 231, § 118, before the single justice of the Appeals Court, seeking relief from the Land Court's December 23 order.⁹ On February 2, 2021, the single justice ordered a partial stay pending appeal from the December 23 order, insofar as it enjoined the city's licensing proceedings. On March 2, 2021, Bask appealed.

e. Consolidated appeal. Bask's appeal from the single justice's December 21, 2020, decision vacating the preliminary injunction, Bask's appeal from the single justice's February 2, 2021, decision ordering the partial stay of the Land Court's December 23 order pending appeal, the city council's appeal from the merits of the Land Court judge's December 23 decision regarding its denial of Bask's special permit application, and the city council's appeal from the contempt proceeding were consolidated.¹⁰ We then transferred the case sua sponte to this court.

2. Discussion. Because it concerns the Land Court's jurisdiction, we first address the Land Court judge's authority to enjoin the licensing proceedings in his December 23 order before turning to the merits of the judge's decision regarding the city council's denial of the special permit.

a. Land Court's jurisdiction. Jurisdictional questions are questions of law, which we review de novo. See Concord v. Water Dep't of Littleton, 487 Mass. 56, 60, 164 N.E.3d 178 (2021). The Land Court is a court of limited jurisdiction, as prescribed by statute. See G. L. c. 211B, § 1 (establishing Land Court as department of Trial Court). See also Bevilacqua v. Rodriguez, 460 Mass. 762, 766, 955 N.E.2d 884 (2011), quoting Riverbank Improvement Co. v. Chapman, 224 Mass. 424, 425, 113 N.E. 215 (1916) ("The Land Court is a statutory court, not of general but of strictly limited jurisdiction"). Over time, its jurisdiction has expanded, as set by statute. See G. L. c. 185, § 1 (enumerating Land Court's jurisdiction).

General Laws c. 40A, § 17, authorizes a court reviewing the denial of a special permit application to

"hear all evidence pertinent to the authority of the board [of appeals] or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require" (emphasis added).

Bask contends that the emphasized language permitted the judge to order, as a matter of equity, that "the special permit shall be issued in sufficient time for the plaintiff to apply for a license ... and to participate as an applicant in any hearing held by the Municipal Council," and "that the Municipal Council shall consider such application by the plaintiff for a license ... at any such hearing along with all other duly filed applications." We disagree.

Our discussion in Konstantopoulos v. Whately, 384 Mass. 123, 127, 424 N.E.2d 210 (1981), is instructive. In that case, we considered the argument that the grant of general equitable powers to the Probate Court allowed that court to review the licensing decision of a town licensing authority. Id. at 128, 424 N.E.2d 210. We held that such review fell outside the Probate Court's subject matter jurisdiction. Id. at 128-129, 424 N.E.2d 210. We explained that "review of an action of an...