MANSFIELD — A marijuana company that has been trying for a few years to open a pot dispensary in Mansfield has won a victory against the town in the state court system.

Massachusetts Land Court has found in favor of CommCan, which has had plans to locate in the Cabot Business Park.

The town and state in 2016 had granted CommCan permission, through a special permit and provisional license, to operate a medicinal marijuana business on land it owns at 611 West. St. in the park, but CommCan also wanted to offer recreational sales.

The town balked, and CommCan filed a court action last July.

The land court ruled “the town of Mansfield zoning bylaw shall not operate to prevent the conversion of the medical marijuana treatment center” to also offer recreational marijuana sales, according to the state statute legalizing recreational pot.

The court decided recreational marijuana sales were allowed because CommCan had been licensed for medical marijuana plans at its location before July 2017, when recreational pot became legal.

The town contended CommCan didn’t have “grandfather rights” and wasn’t “engaged” in the medical marijuana business because it never built a building or sold marijuana.

“They have actively and continuously moved forward in their efforts to exercise the rights granted by their license,” the court said of the business, which has been held up by an appeal of an abutting landowner.

“I’m elated. I’m thrilled with the decision,” Ellen Rosenfeld of CommCan said. “Mansfield tried to zone me out.”

Voters in 2018 approved a bylaw to allow recreational marijuana sales in a special zoning district off School Street.

CommCan had signed a host community agreement with the town in September 2016 for the medical pot business, and 3 percent of its revenue was earmarked for Mansfield. Recreational marijuana sales would bring even more revenue to the town, Rosenfeld said.

“I tried on several occasions to meet with the town to get a host community agreement” for recreational sales, Rosenfeld said. “They refused to meet with us. They didn’t want adult use in the industrial park. They don’t believe the state statute applies to them.”

Subsequently, the town in November approved plans for a recreational marijuana store that would be located in a shopping plaza across from Mansfield Crossing off School Street, and the owners of reLeaf Alternative had hoped to open in June. The town had also limited itself to one recreational pot license.

“I don’t understand the harm of me having it in the industrial park and them allowing other places to have it,” Rosenfeld said.

The town has 30 days from the court decision to appeal. The decision was handed down earlier this month.

“The Town of Mansfield will be working with town counsel on evaluating options moving forward,” Town Manager Kevin Dumas said.

CommCan never opened the medicinal dispensary in town because an adjacent land owner in the business park appealed the town’s approval, naming the planning and zoning boards and Rosenfeld as defendants. The complaint contended West Street Associates didn’t receive notice of hearings on the permits and construction of a marijuana facility would lower the value of its property and affect its ability to attract tenants.

While a Superior Court judgment in January found in favor of the town boards and CommCan, the abutter has appealed.

Rosenfeld said she is unsure if she would open only a medicinal pot business.

CommCan, short for The Commonwealth Cannabis Company, is operated by Rosenfeld and her two brothers and has been in business since 2015.

The company has a 60,000-square-foot cultivation facility in Medway. It also operates a medical-only dispensary in Southboro and a new recreational and medical dispensary in Millis.

CommCan is one of five cannabis companies that has sued the state over its ban on recreational marijuana sales due to the virus crisis. The decision came down in the state’s favor Thursday.

A third marijuana business, which would grow pot, has been proposed off School Street.

Stephen Peterson can be reached at 508-236-0377.

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(1) comment

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