Posted by: Patricia Salkin | June 10, 2021

MA Appeals Court Upholds Finding the Light Manufacturing of Marijuana by Establishment was a Use Allowed by Right

This post was authored by Matthew Loescher, Esq.

Two cases, paired for consideration and oral argument on appeal, involved local zoning regulations relating to the creation of a large marijuana establishment, owned by VGG, in the town of Charlton. The town’s planning board determined that the plaintiffs’ proposed marijuana establishment constituted “light manufacturing” as that term was used in the town’s zoning bylaw and not a use allowed in the agricultural and commercial business districts in which the proposed development site was located. On summary judgment, a judge of the Land Court held that the proposed use was “an indoor commercial horticulture/floriculture establishment use allowed by right” in the two zoning districts. In a separate Land Court action, Russell filed a cross claim against the town, seeking a declaration, pursuant to G. L. c. 240, § 14A, that the bylaw use regulations did not allow VGG’s proposed use.

On appeal, Russell argued that when the Legislature amended c. 40A, § 3, in 2016, it defined the terms “agriculture, aquaculture, floriculture and horticulture” as excluding the growing, cultivation, or distribution of marijuana for all zoning purposes. Thus, Russell claimed, the proposed project could not be conducted in the town’s agricultural district because the amendment to c. 40A, § 3, meant that the growing and cultivation of marijuana was not “agriculture” or “horticulture” under the town’s preexisting bylaw. The court found the definitions of “agriculture” and “horticulture” contained in c. 40A, § 3, were expressly stated to be for purposes of § 3 only, which was amended to except marijuana-related uses from that section’s application of the definition of agriculture found in G. L. c. 128, The court further found §1A, was evidence of the Legislature’s awareness that the growth or cultivation of marijuana was an agricultural activity which would be exempt from zoning under § 3 if not otherwise addressed elsewhere.

Russell and the planning board next claimed that the rest of VGG’s proposal – the cogeneration facility, the process of drying and separating the plant parts and extracting oil from them, and the preparation of marijuana products – were not allowed in the agricultural district and that those uses are in fact the principal uses proposed. The court agreed that these aspects of the proposed project did not fit the common understanding of “agriculture” or “horticulture”. Viewing the project as a whole, however, the court held that the processing and manufacturing of marijuana products that VGG proposed were incidental uses that represented a “customary and necessary use in raising these products and preparing them for market.”

Lastly, Russell and two amici curiae challenged the constitutionality of G. L. c. 94G as “barred by [art.] VI of the United States Constitution, the Supremacy Clause, because federal regulation of marijuana as a controlled substance preempts state authority to enact c. 94G.” The judge declined to reach the issue as it was not within the court’s jurisdiction, since Russell did not attack the constitutionality of G. L. c. 94G in his cross complaint under G. L. c. 240, § 14A, or as a cognizable issue under G. L. c. 40A, §§ 7 or 17.

Valley Green Grow, Inc. v Town of Charlton, 2021 WL 2345585 (MA App. 6/9/2021)

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