SHARON GENIN & Others v. KEVIN ZURRIN & Others.

• Court: Massachusetts Appeals Court
• Decided: April 19, 2024
• Docket: 23-P-1002
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1002

SHARON GENIN & others1

vs.

KEVIN ZURRIN & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs brought suit under the Zoning Act, G. L.

c. 40A, § 17, claiming that the zoning board of appeals of

Egremont (ZBA) erred by constructively granting defendant Kevin

Zurrin's application for a special permit to operate a marijuana

cultivation establishment. While the suit was pending, the town

of Egremont (town) adopted amendments to its general bylaws that

prohibited a number of marijuana-related activities, including

marijuana cultivation, within the town. The town then moved for

summary judgment on the ground that the plaintiffs' claims were

moot. A Land Court judge allowed the town's motion and, in

1Guy Genin, Sherri L. Klinghoffer, Teddy D. Klinghoffer, and 5 Townhouse Hill Associates, LLC.

2Jennifer M. Simms, individually and as executrix of the estate of William R. Simms; Bradford E. Simms; Town of Egremont; and the zoning board of appeals of Egremont. doing so, issued a declaration that the general bylaws, as

amended, barred Zurrin's proposed marijuana cultivation

operation. Zurrin and defendant Jennifer Simms (together,

private defendants) appeal, challenging the applicability of the

general bylaws. We affirm.

Background. In October 2020 Zurrin submitted a special-

permit application to the ZBA on behalf of Marijuana Via

Permaculture, seeking to operate a marijuana cultivation

establishment at 10 Town House Hill Road in South Egremont.3 The

ZBA took no action on the application, evidently because the

town's counsel had advised it and other local boards that

marijuana cultivation was allowed as of right as an agricultural

use under the town's zoning bylaws. The plaintiffs, who are

abutters to the proposed site, then filed the underlying

complaint asserting two counts: In count I they sought

annulment of the "constructive" grant of the special permit

under the Zoning Act, and in count II they sought a declaration

under G. L. c. 240, § 14A, as to the application and validity of

the zoning bylaws.

In May 2021, while the suit was pending, the town's

citizens voted in favor of a ballot question approving a general

3 According to the complaint, Jennifer Simms has an ownership interest in 10 Town House Hill Road; Zurrin resides there; and Marijuana Via Permaculture is a "business name for defendant Zurrin individually."

2 bylaw amendment that would prohibit marijuana cultivation

operations in the town. In June 2021 the town amended its

general bylaws in accordance with the vote. Paragraph 19.5 of

the amended general bylaws now reads, "The operation of a

marijuana cultivator shall be prohibited in the Town of

Egremont."

Following the Supreme Judicial Court's decision in Haven

Center, Inc. v. Bourne, 490 Mass. 364 (2022), which we discuss

further below, the town moved for summary judgment on the ground

that its adoption of general bylaw 19.5 rendered the plaintiffs'

claims moot. The private defendants filed an opposition. After

a hearing the judge allowed the town's motion, dismissed count I

with prejudice, and declared as to count II that the private

defendants' "proposed marijuana cultivation operation is not

subject to the [zoning bylaws] but is instead banned by the

Town's general bylaw 19.5." The private defendants appeal from

the declaration.4

Discussion. General Laws c. 94G, § 3 (a) (2), permits a

town to adopt bylaws restricting or banning the operation of

marijuana establishments within town borders, subject to certain

4 Although the town is nominally a defendant, its interests became adverse to those of the private defendants once it adopted general bylaw 19.5. The private defendants raise no argument that it was procedurally improper for the judge to issue the declaration on the town's motion or that they were not given an adequate opportunity to respond to the motion.

3 voting and procedural requirements. See Haven Center, Inc., 490

Mass. at 366. Here, the judge found, and the private defendants

do not contest, that the town complied with all of the statutory

requirements when adopting general bylaw 19.5. Nonetheless, the

private defendants argue that general bylaw 19.5 does not apply

to their business because it effected a zoning change, thereby

"trigger[ing] a zoning freeze for [their] property" under the

Zoning Act.

We agree with the judge that this argument is foreclosed by

Haven Center, Inc., 490 Mass. at 369-370. There, the Supreme

Judicial Court held that a general bylaw adopted by the town of

Bourne, prohibiting all commercial recreational marijuana

establishments within the town, was not a zoning bylaw and thus

not subject to the requirements of the Zoning Act. See id. at

370. In so concluding, the Supreme Judicial Court relied on the

following factors: General Laws c. 94G, § 3 (a) (2), authorizes

municipalities to ban marijuana establishments "by either a

general or a zoning bylaw"; the town of Bourne "did not have a

history of comprehensively regulating recreational marijuana

establishments through zoning bylaws"; and "the dominant

purpose" of the general bylaw was "to ban all recreational

marijuana establishments from the town pursuant to G. L. c. 94G,

§ 3 (a) (2)," without regard to "the use of land for such

4 establishments, the compatibility with nearby uses, or the

character of the community." Id. at 369-370.

The judge concluded that each of these factors also applied

in this case. She found in particular that the town "has not

historically regulated marijuana establishments by zoning

bylaws" and that general bylaw 19.5 is "an outright ban on

marijuana cultivation and otherwise silent regarding the use of

land in the town for such a purpose, the compatibility with

nearby uses, and the character of the community." We discern no

error in these conclusions, which the private defendants do not

challenge on appeal. Instead, they attempt to distinguish Haven

Center, Inc. on the basis that "the Bourne ban was upheld

primarily because Bourne had previously enacted a bylaw to

prohibit for profit marijuana shops." They provide no citation

for this assertion, however, and we see no support for it in the

Supreme Judicial Court's opinion.

The private defendants also assert that general bylaw 19.5

cannot be applied to them because they "had already lawfully

begun their business" when the bylaw was adopted. We need not

consider this assertion because it is made in conclusory fashion

without citation to legal authority. See Halstrom v. Dube, 481

Mass. 480, 483 n.8 (2019). Moreover, even putting aside the

waiver and further assuming that general bylaw 19.5 would not

5 apply to preexisting uses,5 the private defendants do not dispute

that they had yet to receive the necessary approvals for their

business, including from the Cannabis Control Commission. Their

argument fails for at least this reason. Cf. Haven Center,

Inc., 490 Mass. at 365-366 (plaintiff's business subject to

general ban even though it had received provisional certificate

of registration from Cannabis Control Commission, begun

negotiating host community agreement, and signed lease for

proposed site).

To the extent we have not specifically addressed any of the

private defendants' arguments, we see nothing in them that

warrants overturning the judge's decision.

Judgment affirmed.

By the Court (Vuono, Shin & Toone, JJ.6),

Assistant Clerk

Entered: April 19, 2024.

5 But see Spenlinhauer v. Barnstable, 80 Mass. App. Ct. 134, 137-138 (2011) ("changes in zoning ordinances protect some prior existing uses, . . . but general ordinances typically do not").

6 The panelists are listed in order of seniority.