Valley Green Grow, Inc. v. Town of Charlton

• Decision Date: 09 June 2021
• Docket Number: Nos. 19-P-1516 & 19-P-1784,s. 19-P-1516 & 19-P-1784
• Citation: 173 N.E.3d 395,99 Mass.App.Ct. 670
• Parties: VALLEY GREEN GROW, INC., & others v. TOWN OF CHARLTON & others (and a companion case ).
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 670

173 N.E.3d 395

VALLEY GREEN GROW, INC., & others¹

v.

TOWN OF CHARLTON & others ² (and a companion case ³ ).

Nos. 19-P-1516 & 19-P-1784

Appeals Court of Massachusetts, Suffolk.

Argued October 14, 2020.

Decided June 9, 2021.

Francis B. Fennessey, Charlton, for the intervener.

Mark Bobrowski, Concord, for the planning board of Charlton.

Michael D. Rosen & Bradley Croft, Boston, for the plaintiffs.

Jonathan M. Silverstein, Boston, for town of Charlton, submitted a brief.

Present: Rubin, Desmond, & Englander, JJ.

DESMOND, J.

In these cases, paired for consideration and oral argument on appeal, we address local zoning regulations as they relate to the creation of a large marijuana establishment⁴ in the town of Charlton (town). The town's planning board concluded that the plaintiffs’⁵ proposed marijuana establishment constitutes "light manufacturing" as that term is used in the town's zoning bylaw (bylaw) and, therefore, is not a use allowed in the agricultural and commercial business districts in which the proposed development site is located. On summary judgment, a judge of the Land Court concluded and declared that the proposed use is "an indoor commercial horticulture/floriculture establishment (e.g. greenhouse) use allowed by right" in the two zoning districts. For the reasons that follow, we affirm the well-reasoned decision of the judge.

Background. The background facts are undisputed, and we draw them from the judge's findings,⁶ supplemented by uncontested affidavits and other submissions of the parties.

1. The locus and the proposed use. The locus contains approximately 94.6 acres and, for decades, has been used as a commercial fruit orchard (locus). The orchard's operations traditionally have included cultivating apples for sale and processing apples to produce alcoholic and food products on the site. In addition to apple orchards, the locus housed production facilities, buildings, and equipment to juice, press, bake, process, ferment, and bottle the fruit for sale as wine, cider, juice, pies, jellies, and jam. Gerard F. Russell⁷ asserts that his property was located directly across the street from the locus.⁸

VGG has entered into a purchase and sale agreement to purchase the locus from the existing owners, Charlton Orchards Group, LLC; Nathan R. Benjamin, Jr.; and Catherine L. Benjamin (collectively, owners). The owners⁹ and VGG submitted a subdivision plan for the locus in April of 2018, which the parties all agreed effectively froze the zoning for the locus. VGG proposed to construct a facility for the cultivation, processing, and manufacturing of medical and recreational use cannabis.

The project would consist of a one million square foot indoor marijuana growing and processing facility, including 860,000 square feet of closed greenhouses; a 130,000 square foot postharvest processing facility; and a 10,000 square foot cogeneration facility. According to the site plan review application, in total, buildings would cover 22.95 acres of the 94.6 acre lot. The judge found that "[e]ighty-six percent of the proposed project will be dedicated to ... indoor commercial horticulture."

The judge's findings included a detailed description of the project. We summarize the highlights. Cannabis would be grown hydroponically¹⁰ without chemical pesticides in closed greenhouses that would carefully maintain environmental conditions, filter air contaminants, and mitigate odors. VGG plans to lease space for marijuana cultivation and processing to licensed cultivators.^{11 ,12} Postharvest processing would include separating marketable aspects of the cannabis plant to be either dried and sold as "flower" or extracted and sold as "oil." The details of the extraction process, as the judge found, are not contained in the record.

Cogeneration utilizing natural gas to produce electricity would power the electrical needs of the facility and produce lighting, heat, and carbon dioxide for cultivation.¹³ VGG's narrative for its site plan review application asserted that "[c]o-locating [cogeneration] with commercial greenhouses is common and considered a best practice in terms of both economic and environmental sustainability." Irrigation needs would require the use of 30,000 gallons of new water every day, supplied primarily by rainwater collection tanks (containing up to two million gallons).¹⁴ Other inputs would include fertilizer, rockwool grow media, and packaging materials.

2. State and local regulation of marijuana establishments. Although the issue whether VGG qualifies for one or more licenses from the State's Cannabis Control Commission (commission) is not before us, the interplay between State regulation and local regulation of marijuana enterprises warrants our consideration. We accordingly review in some detail the Commonwealth's regulation of the cultivation, manufacturing, and sale of marijuana that is not medically prescribed.

"[I]n November of 2016, Massachusetts voters approved a ballot initiative that legalized the recreational possession and use of marijuana by persons at least twenty-one years of age, and allowed limited, regulated commercial sale" and cultivation. Commonwealth v. Long, 482 Mass. 804, 811, 128 N.E.3d 593 (2019). The initiative was codified in G. L. c. 94G, see Long, supra, which "created a comprehensive scheme for the licensing, operation, and regulation of marijuana-related businesses," Weiner v. Attorney Gen., 484 Mass. 687, 693, 144 N.E.3d 886 (2020). That statute creates a unique combination of State and local control of marijuana establishments.

The principal licensing authority for marijuana establishments is the commission. Under the statute, however, a city or town may impose reasonable local control over the time, place, and manner of marijuana establishment operations, and a proposed marijuana establishment must comply with local bylaws and ordinances.¹⁵ See G. L. c. 94G, § 3 (a ) (municipality "may adopt ordinances and by-laws that impose reasonable safeguards on the operation of marijuana establishments, provided they are not unreasonably impracticable and are not in conflict with this chapter or with regulations made pursuant to this chapter").¹⁶ See also 935 Code Mass. Regs. § 500.170(2) (2018).

That municipalities may control where marijuana is cultivated in the town is further evidenced by the Legislature's emergency amendment to G. L. c. 40A, § 3, enacted only two weeks after the Legislature enacted G. L. c. 94G. See St. 2016, c. 351, § 1. Prior to the 2016 amendment, c. 40A, § 3, prevented most zoning regulation of land used for agricultural purposes by providing that no bylaw shall "prohibit, unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture ... [or] horticulture." The 2016 amendment specified that the exemption from zoning regulation for commercial agriculture and horticulture does not apply to marijuana cultivation. As amended, c. 40A, § 3, now states in part:

"For the purposes of this section [ c. 40A, § 3 ], the term ‘agriculture’ shall be as defined in section 1A of chapter 128, and the term horticulture shall include the growing and keeping of nursery stock and the sale thereof; provided, however, that the terms agriculture ... and horticulture shall not include the growing, cultivation, distribution or dispensation of marijuana as defined in section 2 of chapter 369 of the acts of 2012, marihuana as defined in section 1 of chapter 94C or marijuana or marihuana as defined in section 1 of chapter 94G."

The Legislature further amended c. 40A, § 3, in 2017 to provide that "nothing in this section shall preclude a municipality from establishing zoning by-laws ... which allow commercial marijuana growing and cultivation on land used for commercial agriculture, aquaculture, floriculture, or horticulture." St. 2017 c. 55, § 7.

The town is a "yes" community, which means that it voted to approve the ballot initiative that was codified as G. L. c. 94G. By statute, while reasonable time, place, and manner restrictions may be imposed by the town by adopting ordinances and bylaws, if the town wanted to "prohibit the operation of [one] or more types of marijuana establishments within the ... town," then it would have had to seek the voters’ approval. G. L. c. 94G, § 3 (a ) (2) (i).¹⁷ The parties concede that the town did not adopt a bylaw specifically applicable to marijuana cultivation prior to the zoning freeze. An alternative to enacting new provisions specific to marijuana establishments, however, may well be to apply its existing bylaws to proposed marijuana establishments, as the town did here. See Cannabis Control Commission, Guidance For Municipalities, Local Control: Bylaws & Ordinances https://mass-cannabis-control.com/wp-content/uploads/200825_Guidance_for_Municipalities.pdf [https://perma.cc/SK58-KVVD].

Applicants to the commission for a marijuana establishment license must include a "description of plans to ensure that the [m]arijuana [e]stablishment is or will be compliant with local codes, ordinances, and bylaws." 935 Code Mass. Regs. § 500.101(1)(a)(10) (2018). The commission forwards a copy of the application to the municipality, which, within sixty days, must respond whether the proposed marijuana establishment complies "with municipal bylaws or ordinances." 935 Code Mass. Regs. § 500.102(1)(d) (2018).

Chapter 94G also requires an applicant to enter into a host community agreement with the town, setting forth the conditions for a marijuana "establishment." See G. L. c. 94G, § 3 (d ). Here, the board of selectmen of Charlton (board of selectmen) sought the opinion of the town's zoning enforcement officer (ZEO) who, after consultation with town counsel, advised that VGG's proposed use would be permitted as of right under the zoning existing at the time VGG filed its preliminary and then definitive subdivision plans. After the board of selectmen received the ZEO's opinion that the proposed use...