| The Taunton Daily Gazette
TAUNTON — It’s no secret that the process of getting retail marijuana businesses up and running in Taunton has been long and arduous for all. So far, only one business — Commonwealth Alternative Care — has gotten one of the coveted five licenses the City Council set as the maximum number to be awarded.
However, despite the eagerness of many city councilors to collect taxes from these new businesses, the city is now unable to give out any more retail marijuana licenses for the time being due to a lawsuit from Bask Cannabis — a Fairhaven marijuana cultivator and dispensary trying to open a retail shop in Taunton which was stymied earlier in the application process.
In fact, the city was just hours away from awarding up to four more licenses at a subcommittee meeting Nov. 4 when a judge issued an injunction stopping it from doing so.
The reason? Bask Cannabis is in the process of appealing the city’s denial to grant them a special permit — something they must obtain before they are given a license. Were the city to award the other four licenses, Bask’s lawsuit would become irrelevant.
Thus, until the judge deciding Bask’s case rules on the issue, the city cannot move forward with giving a license to any of the other five applicants, holding up the process of getting retail marijuana up and running in Taunton entirely.
Bask Cannabis declined to comment on the lawsuit given the pending litigation.
Many city councilors have expressed frustration at the situation.
“I’d like to see the judge lift the injunction. I don’t think there’s a reason for it,” City Council President Barry Sanders said. “To tie up all four of them just doesn’t make any sense to me.”
“it’s unfortunate that this injunction is holding up not only the city, but all of the other applicants,” Councilor Phillip Duarte said.
“It potentially has a significant financial impact on the city because they pay a good percentage of their overall gross sales to the city of Taunton,” Councilor Donald Cleary said.
A neighborhood outcry
The issue goes back to October of last year when Bask was denied a special permit because of their proposed location: 400 Winthrop St. The location is in the Westville neighborhood of the city — a business district and residential neighborhood on either side of Route 44.
Though Bask received dozens of letters of support, it was also opposed by more than 100 residents who signed a petition citing concerns that the location would cause severe traffic problems at a nearby intersection.
Will Mendonca, from the Greater Westville Neighborhood Association, spoke against the location.
“On any given weekday, between 3:30 p.m., especially in the afternoon, but also in the morning…traffic on Winthrop Street, probably til like 6 p.m., was just a complete nightmare,” he said.
Mendonca was clear that he and other community members are not against having retail marijuana locations in the city, nor are they against having one on Winthrop Street, nor are they against Bask opening a marijuana shop nearby. They are simply against having one at that particular location.
“What about the quality of life for these neighborhoods and the residents in these neighborhoods?” he asked as a consideration.
A divided City Council
Ultimately, the City Council voted five to four in favor of Bask, but Bask needed a two-thirds majority of six members to receive its special permit.
Councilors Cleary, Sanders, David Pottier, Jeanne Quinn and Estele Borges voted in favor of the special permit, while councilors Jeffrey Postell, John McCaul, Deborah Carr and Gerald Croteau voted against it.
Quinn and Borges are no longer on the Council, replaced by Duarte and Chris Coute. Coute said were the special permit to come before them again, he would hear the case with an open mind.
But even if Duarte and Coute voted in favor of giving Bask the special permit, it would still need to switch at least one of the opposition votes. McCaul, at the very least, said he would be unlikely to so long as so many community members opposed the proposed location.
Bask does not back down
In response to the denial of the special permit, Bask appealed the decision, and the case was tried in land court in late August of this year. Assistant City Solicitor Mark Gould said that at the trial, Bask’s council brought in an expert witness to testify that the proposed location would not cause a traffic problem.
Gould said Judge Howard Speicher could make one of three decisions: he could award Bask the special permit right away, he could send the decision back to City Council and ask them to decide without considering traffic concerns about the location or he could uphold the Council’s decision.
Gould said Bask must prove that the Council denied the special permit for reasons that were legally untenable, arbitrary and capricious. Many speculate that given that the injunction was granted, the judge is unlikely to uphold the Council’s decision, since to get an injunction, the plaintiff must have a good chance of success.
Still, there is no time limit on how long the judge can take to rule on the issue, and in the meantime everyone involved is in limbo.
Social equity applicant in limbo
Kyra Fernandez, owner of HTC Trinity LLC, an applicant being considered for a retail marijuana license, said the lawsuit has thrown a terrible wrench into her plans — not just because it has set back opening her dispensary, but because her proposed location is right down the street at 354 Winthrop St.
“This is seriously impacting me and my family. This business opportunity is going to change the legacy of what I’m able to leave for my children in life,” she said. “My mom was a single mother in the city of Taunton, and I was the oldest of three. If anything, this is one of the biggest opportunities of my life.”
Fernandez proposed an ordinance at a City Council meeting on Dec. 8 to protect social equity applicants — marijuana business applicants who were a part of a program by the state to empower citizens disproportionately affected by the War on Drugs. She herself is a social equity applicant, and the ordinance would give them priority for consideration for marijuana licenses for a specified amount of years.
A similar ordinance passed in Cambridge in 2018 and is still in effect.
The Council moved to send the proposal to their Ordinance Committee for consideration.
Raising the limit?
In an attempt to make Bask’s injunction null and void, City Solicitor David Gay put forth a proposal to discuss raising the number of retail marijuana licenses the city can give out to eight instead of five at a City Council meeting Nov. 24. However, after the idea received concern and criticism from the public and city councilors, the item was struck from the agenda hours before the meeting.
Duarte said he is opposed to the idea of increasing the number of licenses because it sets a bad precedent to change a city ordinance just to get around a specific legal challenge.
“City Council spent about a year, if not more, crafting that ordinance, discussing how many licenses we wanted, and in the two years since then, fleshing out this ordinance in this process,” he said. “So to me, it’s throwing the whole process out the window now that we’re faced with a legal challenge to say ‘We’re just gonna change the ordinance in response.'”
But given that the injunction could last indefinitely, Councilor Coute said he is interested in legal maneuvers that could get the City out from under the injunction.
“The other applicants are being harmed by this injunction, and we have to do what we can to get some licenses and get the revenues coming into the City. The revenue is very important,” he said.
City asks for relief
As of Dec. 4, the City has appealed the injunction. Duarte said he is pleased at the move.
“I was pleased to work with Second Assistant City Solicitor Mark Gould on the appeal of this injunction…Many state regulatory officials, cannabis advocates, legal scholars, and residents of this Commonwealth, including the residents of Taunton that we represent, will be better served by this case playing out further,” he wrote in a statement. “Cannabis law is a new and evolving field, and any case therefore has the ability to set precedent for how this industry is handled.”
But until the legal system moves, the fate of Bask and all other retail marijuana applicants hangs in the balance.