A Massachusetts Land Court judge has ruled that a Mansfield RMD license-holder can use its property for adult-use sales even though the property is not locally zoned for adult-use sales. The Land Court’s decision provides strong authority for RMDs provisionally licensed before July 1, 2017 who would like to expand to adult-use operations.

The case is Rosenfeld v. Town of Mansfield. Rosenfeld and her licensed RMD, CommCan, Inc., sued the Town of Mansfield after the Town insisted that CommCan was not allowed to sell adult-use cannabis at its property in the Mansfield Planned Business District. The Business District is zoned for medical cannabis sales, but not adult-use sales. CommCan received provisional licensure for an RMD and entered into an HCA with Mansfield back in 2016, but construction of CommCan’s dispensary has been delayed due to ongoing litigation with an abutter.

This delay in construction formed the crux of the parties’ dispute. Massachusetts law, G.L. c. 94G § 3(a)(1), prohibits cities and towns from using their zoning ordinances and bylaws to prevent RMDs from also selling, cultivating, or manufacturing adult-use cannabis if the RMD:

  • Was provisionally licensed by July 1, 2017; and
  • is “engaged in the cultivation, manufacture or sale” of cannabis.

The Land Court rejected this narrow interpretation of § 3(a)(1). Instead, the Court reasoned that CommCan is “engaged” in the sale of medical cannabis because it has “actively and continuously moved forward in [its] efforts to exercise the rights granted by [its] license.” Specifically, CommCan was engaged in the sale of cannabis “by obtaining a host community agreement and a special permit, and by actively opposing the abutter appeal of the grant of their special permit, so as to permit them to proceed with the physical construction of the project and the commencement of sales.”

The case is good news for RMDs facing local resistance to adult-use operations. As long as an RMD was provisionally licensed before July 1, 2017 and is actively working to open their facility, the Rosenfeld case suggests that a locality cannot use its zoning code or bylaws to prevent the RMD from selling, cultivating, or manufacturing adult-use cannabis. This is true even if the RMD has not yet constructed its facility or opened its doors.

There was no dispute that CommCan was provisionally licensed by July 1, 2017, but the Town argued that CommCan is not “engaged” in the sale of cannabis because the company has not yet constructed its building or commenced the actual sale of medical cannabis at the site.