BEAUREGARD, BURKE ‘&FRANCO NEW BEDFORD, MA or40 Lang, court FILED COMMONWEALTH OF MASSACHUSETTS 312 2 an 2 sR LAND COURT DEPARTMENT DOCKET NO. 19MISC000529 (HPS) BASK, INC, Plaintiff vs. ESTELE C. BORGES, DEBORAH A. CARR, DONALD L. CLEARY, GERALD A. CROTEAU, JOHN M. MCCAUL, JEANNE M. QUINN, JEFFREY S. POSTELL, DAVID W. POTTIER, and BARRY S. SANDERS, as they are Members of the CITY OF TAUNTON MUNICIPAL COUNCIL, Defendants VERIFIED COMPLAINT FOR CIVIL CONTEMPT 1. Thisis a proceeding for civil contempt pursuant to Mass.R.Civ.P. 653. 2. The Plaintiff Bask Inc. is a Massachusetts corporation with a principal office located at 2 Pequod Road, Fairhaven, Massachusetts. ‘The Defendants Estele C. Borges of 31 Lydia Lane, Taunton, MA, Deborah A. Carr of 175 Partridge Circle, Taunton, MA, Donald L. Cleary of 620 Dighton Avenue, Taunton, MA, Gerald A. Croteau of 570 Tremont Street, Taunton, MA, John M. McCaul of 2 Commonwealth Avenue, Taunton, MA, Jeanne M. Quinn of 25 Robert Street, Taunton, MA, Jeffrey S. Postell of 35 West Lake Drive, Taunton, MA, David W. Pottier of 42 Power Street, Taunton, MA andLaw ofFices oF BEAUREGARD, BURKE ‘FRANCO sa wuuamsraect NEW BEDFORD, MA 2740 Barry C. Sanders of 75 Steve Drive, Taunton, MA are the duly elected members of the City of Taunton Municipal Council, who participated in the pubic hearing and voted on the decision by said Municipal Council which is the subject matter of this appeal ("Council"). They are named in their capacity as members of the Municipal Council pursuant to General Laws Chapter 40A, Section 17. 4, On October 25, 2019, Plaintiff commenced Civil Action Number 19MISC000529 against Defendants in the Land Court, 5. On December 23, 2020, this Court (Speicher, J.) issued a Decision and Judgment. A true copy of the Court's Decision is attached hereto as Exhibit A. A true copy of the Court's Judgment is attached hereto as Exhibit B. 6. _ Inits Judgment on page 2, the Court Ordered and Adjudged in part as follows: ORDERED AND ADJUDGED that the Municipal Council is hereby ORDERED to FORTHWITH issue the special permit as applied for by the plaintiff; and it is further ORDERED, in accordance with the court's authority pursuant to G.L. c. 40[A], § 17 to "make such other decree as justice and equity may require," that the special permit shall be issued in sufficient time for the plaintiff to apply for a license pursuant to Chapter 222-1 of the Ordinances of the City of Taunton and to participate as an applicant in any hearing held by the Municipal Council with respect to the issuance of licenses pursuant to said Chapter 222-1, and that the Municipal Council shall consider such application by the plaintiff for a license pursuant to Chapter 222-1 at any such hearing along with all other duly filed applications... (Land Court Judgment, p. 2)BEAUREGARD, BURKE NEW BEDFORD, Ma cr 7. The Defendants have willfully and knowingly violated the above referenced Orders of the Court. 8. The Municipal Council flouted the Judgment of the Land Court by proceeding with the process of awarding licenses without first granting Bask a special permit in sufficient time for Bask to participate in the license process. On December 28, 2020, the Municipal Council's Committee on Police and License met to review, consider and recommend to the full Municipal Council applications for new marijuana licenses submitted by five other companies. (See Exhibit C) 9. The Committee on Police and License proceeded on December 28, 2020 to recommend to the full Municipal Council that it approve the license applications of three of the candidates including LMC, LLC at 93 County Street, GTE Taunton at 295 Broadway, and HTC Trinity LLC, located at 354 Winthrop Street. HTC Trinity is the proposed marijuana retailer located less than one quarter mile away from Bask's proposed location which the Land Court cited as part of the reason for finding the Municipal Council's denial of Bask's special permit application was pretextual. (Land Court Decision, Exhibit A, pp. 12-14) 10. On December 29, 2020, the full Municipal Council met to consider the recommendations of the Police and License Committee and voted to issue three of the remaining four licenses, to all three of the recommended candidates including one to HTC Trinity for 354 Winthrop Street.LAW OFRICES OF BEAUREGARD, BURKE FRANCO S2WLAM STREET ‘NEW BEDFORD, MA 240 11. The Municipal Council has violated the Court's Judgment by reviewing and awarding three additional licenses in contravention of the Land Court's clear order in its Judgment. 12. Considering simultaneously all other City-wide applicants for licenses and awarding three licenses without first granting Bask a special permit in time for it to participate in the license process is a clear violation of the Land Court's Judgment and defeats the purpose and intent of the Land Court's order that the award of the special permit be meaningful. In particular, Bask was not given the opportunity to argue that it should be awarded a license in its section of Taunton before the Council awarded a license to a competing location nearby. 13. The City requires a special permit as a prerequisite to the award of a license. A license from the Municipal Council is the final step in the process of operating a marijuana retail business and is not awarded by the Municipal Council until all prior requirements are met, 14. _ Bask notified the City that it would submit its license application by December 30, 2020. (See Exhibit D, Bask’s correspondence to the City dated December 28, 2020.) 15. Bask submitted its application for a license on December 30, 2020. In addition, through its attorney, Bask notified the City's attorney of this as well and stated its belief that a short continuance of the license review process was required by the Land Court's Judgment. (See Exhibit E, attorney emails)Law offices oF BEAUREGARD, BURKE 2 WILLIAM STREET NEW BEDFORD, MA 0740 16. As Bask filed its license application promptly after the Land Court's Judgment, the Municipal Council could have complied with the Judgment by awarding Bask a special permit in sufficient time for Bask to be considered along with other applicants. 17. OnJanuary 6, 2021 this Court (Speicher, J.) denied the Defendants’ Motion to Stay Pending Appeal 18. On January 8, 2021 the Appeals Court denied the Defendants! Application for a stay pending appeal. Notwithstanding the denial of their motions, the Defendants have violated this Court's Judgment and Orders. WHEREFORE, Plaintiff requests that: 1. The Court issue summonses to Defendants pursuant to Mass.R.Civ.P. 65.3 (a); 2. The Court find Defendants to be in civil contempt of the Court's December 23, 2020 Judgment; 3. The Court award Plaintiff appropriate monetary sanctions and/or damages against Defendants, including counsel fees, for Defendants’ knowing and willful breach of the Court's orders; 4, That the Court vacate any licenses awarded to applicants other than Bask after the date of the Court's Judgment when Defendants were in contempt and in violation of the Court's Judgment and Orders;NEW BEDFORD, Ma O79 5. That the Court order the Defendants to award Bask both a special permit and a license; and 6. The Court grant such other and further relief as it may deem appropriate Dated: January 11, 2021 Respectfully Submitted, The Plaintiff By Its Attorneys, Law Offices Beauregard, Burke & Franco RICHARD E. BURKE, JR. BBO# 546847 P.O. Box 952 New Bedford, MA 02741. Tel. No. 508-993-0333Law ofS OF BEAUREGARD, BURKE FRANCO ‘NEW BEDFORD, Ma O70 VERIFICATION 1, Timothy Keogh being duly sworn, depose and say that I am the president of the Plaintiff in the within entitled action, that I have read the foregoing Verified ‘Complaint for Civil Contempt and I know the contents thereof; and that the same is true of my own knowledge, except as to matters therein stated to be alleged on information and belief and as to those matters I believe them to be true. TIMOTHY KEOGH, Pi BASK INC. 2 Pequod Road Fairhaven, MA COMMONWEALTH OF MASSACHUSETTS BRISTOL, $S. January 11, 2021 On this 11th day of January, 2021, before me, the undersigned notary public, personally appeared Timothy Keogh, president of Bask Inc., proved to me through satisfactory evidence of identification, which was that said individual is personally known to me, to be the person whose name is signed on the preceding, or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose. CLAELA Richard E. Burke, Jr., Notary Public My Commission Expires:_3/18/2022EXHIBIT ACOMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT BRISTOL, ss. MISCELLANEOUS CASE No. 19 MISC 000529 (HPS) BASK, INC., Plaintiff, ve ERNEST C. BORGES, DEBORAH A. CARR, DONALD L. CLEARY, GERALD A. CROTEAU, JOHN M. MeCAUL, JEANNE M. QUINN, JEFFREY S. POSTELL, DAVID W. POTTIER and BARRY C. SANDERS, as they are members of the CITY OF TAUNTON: | MUNICIPAL COUNCIL, Defendants. DECISION The legalization of the sale of marijuana in Massachusetts is still a relatively new phenomenon, having been set in motion by the passage of a law adopted by ballot referendum, St. 2016, c. 334, § 5, as amended by the passage of St. 2017 ,c. $5, amending G. L. ¢, 94G. The implementation of the legalized sale of marijuana, though being conducted carefully and cautiously pursuant to the regulations adopted by the Cannabis Control Commission, see 935 CMR 500, et seq., has Jed to inevitable bumps in the road in rolling out the legalized retail sale of a formerly illegal substance across the Commonwealth for the frst time since the ending of Prohibition in 1933. As with the implementation of any new statute, questions arise upon its implementation. Thus, the courts have recently, or are presently, dealing with unresolvedquestions concerning the interplay between local zoning bylaws and G. L. c. 94G, Valley Green Grow, Inc. vs. Charlton, Mass. Land Ct., No, 18 MISC 000483 (RBF) (Mar. 7, 2019); whether conversion of a previously approved medical marijuana dispensary to a retail facility is subject to regulation or prohibition under municipal zoning bylaws, Rosenfeld vs, Mansfield, Mass. Land Ct, No, 19 MISC 000357 (HPS) (Apr. 8, 2020) (SJC-13029); and whether a municipality may impose a moratorium on the conversion of a medical marijuana dispensary to a retail marijuana dispensary, Revolutionary Clinics II, Inc. vs. Cambridge, Mass. Super., No. 1981CV03035 (Jan. 24, 2020). However, in the present case, the analysis of whether a municipality overstepped its bounds in denying a request for a special permit for the sale of marijuana is no different than for any other proposed use requiring a special permit. in the present case, the Taunton Municipal Council (“Municipal Couneil”) contends that it denied the plaintiff Bask, Inc.'s application to sell marijuana based on the Municipal Couneil’s ‘concern that the proposed retail marijuana dispensary would exacerbate a difficult traffic situation near the proposed retail marijuana dispensary. For the reasons stated below, I find and rule that the Municipal Council presented no credible evidence at trial to counter the evidence presented by the plaintiff that no such traffic problem would be created or exacerbated by the proposed facility, and that in any event, I find and rule that the reason given by the Municipal Council was a pretext. Accordingly, under the circumstances present in this case, the Municipal Council's denial will be annulled and the special permit will be ordered to be issued. This case was originally scheduled for trial in April, 2020, but was rescheduled because of the CovID-19 pandemic, Following the issuance of orders by the Supreme Judicial Court and the Land Court providing procedures for conduct of cases during the pandemic, the case was rescheduled for trial by videoconference. I conducted a view on August 24, 2020, and the casewas tried before me, by videoconference, on August 25, 26, and 27, 2020. Following the submission of a post-trial brief and requests for findings by the plaintiff,‘ I took the case under advisement on October 9, 2020, FACTS Based on the facts stipulated by parties, the documentary and testimonial evidence admitted and trial, my view of the subject property, and my assessment as trier of fact of the credibility, weight, and inferences reasonably to be drawn from the evidence admitted at trial, 1 make factual findings as'follows:? 1. The property at 400 Winthrop Street in Taunton (the “Property”) is owned by Cullen-400 Winthrop Street LLC.? Pursuant to a letter of intent signed by the owner and the plaintiff, the plaintiff, Bask, has an option to lease the Property subject to the receipt ofall of the approvals necessary to operate a retail marijuana dispensary at the Property.* 2, The Property is a 20,271 square foot parcel on the south side of Winthrop Street. The Property has approximately 252 feet of frontage on Winthrop Street and approximately 61 feet of frontage on Cohannet Street.S 3. The Property is located in a Highway Business District under the Taunton Zoning Ordinance (“Ordinance”), A retail marijuana dispensary is allowed upon the issuance of a special permit in the Highway Business District under the Ordinance. "The Municipal Council waived post-trial submissions. 2 Additional findings of fact are contdined inthe discussion section, ina. > Exh. 1, p. 38, “Quitelaim Deed,” recorded with Bristol County Registry of Deeds, Book 13061, P. 231. “Exh. 1, p40, “Binding Letter of intent to Lease 400 Winthrop Street.” “Exh. 4, “Special Permit Plot Plan,” prepared by Sitec, Inc., dated August 6, 2019, revised September 10, 2019; Tr. Vol. 1, p.30. Te. Vol I, pp. 35-36; Exh. 17, “Chipter 440 ofthe Ordinances ofthe City of Tayaton;” Exh, 13, Zoning Map. 3‘The minimum area and frontage requirements for a retail use in the Highway Business District in which the Property is looated are, respectively, 15,000 square feet of area and 100 feet of frontage.” ‘The Proparty is improved by a 2,000 square foot one-story retail building set back from ‘Winthrop Street 25 to 26 feet and located centrally on the site.® The building on the Property is currently operated as a convenience store and package store selling beer and ‘wine. The Property was formerly operated as a used car dealership? ‘The Property fronts on the south side of Winthrop Street. Winthrop Street is a well- ‘travelled state highway also known as Route 44, It runs east-west past the Property. Downtown Taunton is a few miles east of the Property on Winthrop Street, and Winthrop ‘Street continues west from the Property to the Rhode Island state line in Seekonk, and on to Providence in Rhode Island.}°"The portion of Winthrop Street in the vicinity of the Property is a busy commercial corridor dominated by commercial uses normally expected to be found on such a street, including gas stations, convenience stores, automobile dealerships, and other commercial uses that depend on automotive traffic. Cross-streets off of Winthrop Street, including the nearby South Walker Street, lead to residential neighborhoods, but the Highway Business District extends for about 500 feet to the north and the south of the centerline of Winthrop Street, into some areas containing residences. "Tr, Vol, pp. 30-21. 8 Bxh. 4; °Tr. Vol ‘Te. Vol. I, pp. 12, 52. Lp. 11,20. "Ty. Vol. pp. 13,18,7. A traffic light was installed in May, 2019 on Winthrop Street, just west of the Property, at the intersection of North Walker Street."! This traffic light has been the source of evening rush hour back-ups for traffic travelling to the west from Taunton." 8 The Property is also bounded on the east by Cohannet Street, a local street intersecting with Winthrop Street, The Winthrop Street — Cohannet Street intersection is unsignalized, with a stop sign for trafic entering onto Winthrop Street from Cobannet Street.!? 9. Bask, after entering into a host community agreement with the city of Taunton," applied to the Municipal Council for a special permit to operate a retail marijuana dispensary. '* 10, Bask was awanded'a provisional license for the development of a retail marijuana establishment at the Property by the Cannabis Control Commission on January 9, 2020.'6 11. Bask proposes to operate a retail marijuana dispensary at the Property, with only retail sales taking place at the Property. Cultivation and processing of product to be sold at the Property will occur at an existing licensed Bask facility locaied in Freetown.'” Bask also operates one other retail marijuana facility in Massachusetts, in Fairhaven, '# 12, Bask proposes to utilize the existing building on the site, currently operating as.a convenience store and beer and wine package store, for its proposed marijuana retail dispensary, but plans to revamp the handling of traffic and parking on the Property from the present configuration, and to relocate the entrance from the front to the east side of the building. "Ty, Vol. I, pp. 39-40. "Tr, Vol. I, pp. 43-44. 2 Tp, Vol I, p.39. ¥ Ech. 7, “Flost Community Agreement Between the Cty of Teunton and Bask, Inc, for the Sit ‘Marijuana Establishment,” dated March 28, 2019. Ex. 1, Special Permit Application, August 7, 2019. Bx, 10, “Notice of Provisional License.” Tr. Vol I, pp. 98-100. “14 of a Recreational13. Presently, there are three curb cuts and two parking lots, one to the east of the building and one to the west of the building, with no ability to drive from one side of the building while remaining on-site, and with no regulation of the three curb cuts,’ 14, Bask proposes to retain each of the three existing curb cuts, but they would be modified and limitéd to either one-way-ini or one-way-out traffic. The curb cut on Cohannet Street ‘would be limited to traffic exiting the Property, and this traffic would be directed to tun only left, or north, toward Winthrop Street, where vehicles exiting the Property could turn either left or right on Winthrop Street. 15. The easterly of the two curb cuts on Winthrop Street would be Jimited to traffic entering the Property, and would be the only vehicular entrance, Traffie would enter into the easterly of the two parking lots, but could drive on-site acrois the Property in front of the building to enter the west parking lot by way of an 18-foot wide on-site driveway.?! 16. The westerly curb cut, which is closest to the signalized intersection at North Walker Street, would be an exit-only curb cut, and vehicles exiting at this curb cut would be limited to making right tuns only, so that as they enter Winthrop Street, they could only travel in ait easterly direction. The purpose of prohibiting left tums at this éxit is to prevent conflicts with westbound traffic backed up at the traffic light at North- Walker Street. Tr. Vol I, p. 22. 2 Tr, Vol. I, pp. 24-25; Exh. 4 aa. 2 Ty, Vol, pp. 24-25, 37; Exh. 4.7 18. 19. 20. 2. The westerly of the two parking lots at the Property will have 12 parking spaces, and will be used for employees only. The westerly parking lot also is proposed to have a secute loading area next to the building® The easterly of the two parking lots will be for customers, and will have 17 parking spaces, for a total of 29 off-street parking spaces proposed to be provided at the Property. ‘The Ordinance requires a minimum of 10 parking spaces for a retail facility of the size proposed at the Property.* Bask also proposes to remove a planter cutrently in front of the building so as to create an 18-foot wide corridor to allow for on-site circulation between the two parking lots on the Property. The 18-foot wide lane, wide enough to allow two cars to pass one another, ‘would be one-way during business hours, and two-way at closing time, allowing employees to access the west parking lot from the entrance atthe easterly curb cut, and allowing them to leave either by making a right tum out of the westerly curb cut, or 0 leave by way of the exit onto Cohannet Street. ‘The Municipal Council held a hearing on Bask’s application for a special permit on October 1, 2019. The Municipal Councif voted five in favor of granting the special permit, and four opposed, thereby denying Bask the two-thirds vote necessary for approval of its application. The Municipal Council issued a written decision, dated October 1, 2019, containing its findings in support of its denial. The decision was filed with the City Clerk on October 8, 2019. In its decision, the Municipal Council stated that it 2 Ty, Vol, p.25; Exh. 4 2 Ty. Vol. I, pp. 26-29; Exh. 4 2% Ty, Vol I, pp. 40-41 % Bx. 2, “Decision of the City of Taunton Municipal Council onthe Petition for Specil Permit.” 72. 23: considered whether or not the proposed use was in harmony with the general purpose and intent of the zoning ordinance. The Municipal Council took various factors into consideration, including the needs of the community, the effect of the development upon the neighborhood and the community, including socioeconomic impacts, utilities, traffic and landscaping, and, the health, safety and general welfare of the present and future inhabitants. The council's considerations included the location, the existing neighborhood, congestion in the streets, and safety”? In considering the above factors, the Municipal Couric made findings almost exclusively with respect to traffic-related factors, as follows: While not exclusive, concems about increased traffic, a convoluted onsite traffic flow and ancillary effects of such increased traffic were predominant, as well as the location of the proposed project in reaction to a traffic light, offset intersecting streets, and area neighborhoods and residences. It is a heavily travelled area presently, and the proposed project would increase traffic, more so than other historical uses of the property. The Couincil took into consideration the effect of traffic on the neighborhood, including noise, impact on pedestrians, impact on residents and passersby alike, quality of life concems, and, safety concems related thereto. ‘The Municipal Council also desired a site in which the proposed use was set back from the road. The Council determined that the proposed use would create a nuisance and potentially a serious hazard to vehicles and pedestrians.® On January 21, 2020, less than four months after the Municipal Couneil disapproved Bask’s application for a special permit for the retail sale of marijuana to adults at 400 Winthrop Street, it considered and approved, by a vote of 8-1, an application for a special permit for the retail sale of marijuana to adults at 354 Winthrop Street, ‘The proposed, and approved, retail marijuana dispensary at 354 Winthrop Street is to be located in a building with 4,140 square feet of floor area, approximately twice the size of ‘the building on the Property, is located in the same Highway Business District as the Property, and is almost exactly one-quarter of a mile east of the Property on Winthrop » Bh. 2. 1d,Street. The proposed retail marijuana dispensary at 354 Winthrop Street is expected to generate approximately twice as many vehicle tips as the one proposed by Bask at the Property? ; 25. Inapproving the special permit for 354 Winthrop Street, the Municipal Council wrote in its decision that it “took into consideration the needs of the community, the efféct of the development upon the neighborhood and the community, in terms of socioeconomic impacts, utilities, trafic, landscaping, and the health and welfare of the inhabitants.” The Municipal Council stated in its decision with respect to the Property that it took exactly the same factors into consideration in denying the special permit for the Property.2! DISCUSSION ‘Bask appeals from the Municipal Council’s denial of its application for a special permit to conduct retail marijuana sales at the Property. General Laws 40A, §17 provides that “[a}ny person aggrieved by the decision of...any special permit granting authority...may appeal to the Jand court department...” The court’s inquiry in reviewing the decision of a board of appeals or a special permit granting authority is a hybrid requiring the court to find the facts de novo, and, based on the facts found by the court, to affirm the decision of the special permit granting authority “unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” MacGibbon v, Bd. of Appeals of Duxbury, 356 Mass, 635, 639 (1970). This involves two distinct inquiries, the first of which looks to whether the special permit granting authority’s decision applied incorrect standards or criteria, See Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 (2003). Only after determining thet the decision > Buh, 18, Desision oft City of Taunt Municipal Council onthe Pettion for Speial Pet (or 354 Winthrop Steet); January 21, 2020; Tr. Vol. 1, pp. 87-88; Tr Vol. I, pp. 108-109 (354 Winthrop Steet is 0.27 miles east of the Property). 20-Tr, Vol I pp. LI-112, 3 Bh. 2‘was not based on a legelly untenable ground does the court then proceed to the second, more deferential inquiry, in which “the [special permit granting authority)’s discretionary power of denial extends up to those rarely encountered points where no rational view of the facts the court has found supports the [special permit granting authority]’s conclusion that the applicant failed to meet one or more of the relevant criteria found in the governing statute or by-law.” Id. at 74 75. Those “rarely encountered points” include those occasions where there are no facts to support a special permit granting authority’s conclusion that one of more of the factors required to be considered by the local bylaw or ordinance have not been met. A special permit granting authority “rhay not conclude the proposed use is not ia harmiony [with the intent ofthe bylaw] in the absence of credible evidence.” Tresca Brothers Sand and Gravel, Ine. v. Bd. of Appeals of Wilmington, 91 Mass. App. Ct. 1128 (July 8, 2020) slip op. at 6 (Rule 1:28 Unpublished Decision); see also Shirley Wayside Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass, 469, 485 (2012) (board may not deny special permit for expansion of nonconforming use “in the absence of credible evidence”). A special permit granting authority is required to make detailed findings in support of its decision. Gamache v, Acushnet, 14 Mass. App. Ct, 215, 220 (1982). Notwithstanding the requirement for detailed findings in general, perhaps somewhat paradoxically, “the refusal of a board to grant a special permit...does not require detailed findings by the board.” Schiffone v. Zoning Bd. of Appeals of Walpole, 28 Mass. App. Ct. 981, 984 (1990). This does not mean that the special permit granting authority is relieved of the requirement to state its reasons for the denial, but rather, that in the case of a denial of a special permit, “the requirement that the {special permit granting authority] provide reasons supporting its decision, is less demanding 10than ifthe (special permit granting euthority] had acted affirmatively.” Bd of Aldermen of Newton v. Maniace, 429 Mass. 726, 732 (1999). When a special permit granting authority's reasons given in support of a denial are merely conclusory, that is, “[wJhen a decision contains conclusions that do nothing more than repeat regulatory phrases, and are unsupported by any facts in the record, [the court] is constrained to conclude that the decision is ‘unreasonable, whimsical, capricious or arbitrary," and therefore invalid.” Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374, 386 (2009). Where the special permit granting authority fails to give any reasons in its decision, but offers reasons at trial, or offers reasons at trial that are different than those offered in its decision, the court is “not obliged to search for facts in the record to support.a rationale that the board did not itself provide.” Roberts v, Southwestern Bell Mobile Sys, Inc., 429 Mass. 478, 486 (1999). “On review, the judge’s role is to determine ‘whether the reasons given’ by the board, ‘had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law’... [WJhere no such reasons are given,..a reviewing court cannot be satisfied that a board’s actions are not arbitrary, a pretext, or otherwise impermissible.” Id. at 387, quoting in part, Vazza Props., Inc. v. City Council of Woburn, 1 Mass.App.Ct. 308, 312 (1973). In fact, a court need not entertain a board’s efforts “to defend its denial of the special permits at trial based on grounds it had never articulated before.” Cumberland Farms, Ine. v. Bd. of Appeats of Wellfleet, 90 Mass. App. Ct. 1118 (2016) at p. 2 Rule 1:28 Unpublished Decision). 1.I. THE MUNICIPAL COUNCIL'S DECISION WAS BASED ON A LEGALLY UNTENABLE GROUND. Turing to the first inquiry, a decision is based on legally untenable grounds when premised “on a standard, criterion or consideration not permitted by the applicable statutes or by- laws. Here, the approach is deferential only to the extent that the court gives ‘some measure of deference’ to the local board's interpretation ofits own zoning by-law. In the main, though, the court determines the content and meaning of statutes and by-laws and then decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant orto deny the variance or special permit application.” Britton v. Zoning Bd. of Appeals of Gloucester, supra, 59 Mass. App.Ct. at 73 (internal citations omitted). A denial of a special permit is based on a legally untenable ground if the reason for the denial is that the special permit granting authority favors another applicant for the sime use at a nearby property. Clear Channel Outdoor, Inc. v, Zoning Bd. of Appeals of Salisbury, 94 Mass. App. Ct. 594 (2018). Such a decision is legally unteniable because it “injects criteria not found in the enabling act.” 1d. at 599, quoting Dowd v. Bd. of Appeals of Dover, 5 Mass. App. Ct. 148, 156 (1977). ‘The Municipal Council's factual reasons for denial related almost exclusively to consideration of additional traffic it expected to be generated by the proposed retail marijuana dispensary. These concerns were largely expressed in terms of the additional vehicle trips that, the Municipal Council expected would exacerbate evening rush hour backups at the recently installed traffic signal at the intersection of North Walker Street and Winthrop Street. The Municipal Council emphasized in its testimony and presentation of photographic and video evidence long evening rush hour backups starting on Winthrop Street at the traffic light at the comer of North Walker Street, and extending back more than a quarter of a mile to the east, well 2past the property at 354 Winthrop Street, the site of another proposed retail marijuana dispensary.** Rether than distinguishing why the proposed retail marijuana dispensary at the Property would exacerbate traffic problems on Winthrop Street while the larger proposed retail ‘marijuana dispensary at 354 Winthrop Street, a short walk away, would not, the Municipal ‘Council instead highlighted in its presentation at trial that the traffic backups on which it largely based its claims extended from the traffic light all the way past the property at 354 Winthrop Street, a quarter of a mile to the east of the Property. Thus, the evidence offered by the Municipal Council showed, and emphasized, that to the extent there isa traffie problem on Winthrop Street, it exists in front of both the Property at 400 Winthrop Street, and the site of the other proposed marijuana dispensary at 354 Winthrop Streét. The Municipal Council did not show, or attempt to show, why a marijuana dispensary at 400 Winthrop Street would make this problem worse, but a larger marijuana dispensary at 354 Winthrop Street that would generate approximately twice as many vehicle trips would not. Yet, Jess than four months after denying a special permit for a retail marijuana dispensary at the Property because it would ostensibly exacerbate the traffic problém on Winthrop Street, the Municipal Council approved a retail marijuana dispensary at 354 Winthrop Street, twice the size as the one proposed for the Property, apparently satisfied that this facility, although twice the size, generating twice as many vehicle trips, and located next to the same traffic backups, would somehow not contribute to the traffic problem on Winthrop Street. Less than four 3 Byh. 12D, 121, 121, 12K. » Determination of expected trip generation is partly a function of square footage for any particular use, using land use codes provided by the Insitute of Transportation Engineers. The number of total vehicle trips expected to be sgenetated by the proposed marijuana dispensary at the Property at 400 Winthrop Street during the weekday P.M. peak hour is 46; the number of expected weekday P.M. peak trips at the larger dispensary approved for 354 ‘Winthrop Street is 90. See Exh. 16, Figures 2 and 5, and Exh. 16 Appendix, etter dated July 3, 2019 and analysis on following page. See also Tr. Vol. I, pp. 111-112. 3 Exh. 18, 3months after denying a special permit for a retail marijuana dispensary at the Property ostensibly ‘because of its concern that a marijuana dispensary would exacerbate traffic backups on Winthrop Street, it approved the retail marijuana dispensary at 354 Wiaithrop Street without even asking for or requiring a traffic impact study to assess traffic impacts of the proposed facility on traffic on Winthrop Street.35 ‘The Municipal Council also came to opposite conclusions for the two proposed marijuana dispensaries with respect to “the needs of the community, the effect of the development upon the neighborhood and the commusity, in terms of socioeconomic impacts, utilities, traffic, landscaping, and the health and welfare of the inhebitants.” But the Municipal Council failed to make any findings of fact with respect to these factors that could possibly support its conclusion that the proposal for 400 Winthrop Street would negatively impact the community in terms of socioeconomic impacts, utilities, traffic, landscaping, and the health and welfaré of the inhabitants, or that could explain how it reached the opposite conclusion for a larger proposed facility so close to the Property. The Municipal Council offered no credible explanation at tral forthe distinction it drew between the-two proposals, located near to each other on the same busy traffic corridor. Both properties are located literally adjacent to the same claimed nightly traffic jam, and yet one was denied on this basis, and the other was approved despite being twice the size and being expected to generate twice the traffic on the same roadway. This factual situation is virtually indistinguishable from the decision found to be legally untenable in Clear Channel Outdoor, Inc. v. Zoning Bd. of Appeals of Salisbury, supra, 94 Mass. App. Ct. 594, in which a local board impermissibly denied one special permit application for a digital billboard and approved another ‘because two members of the board favored one applicant over the other. Furthermore, “‘the 4general deference afforded actions of a local [special permit granting authority] may yield to a cours sense of faiiness’ when it appears that, special permit granting authority has applied ‘dramatically different standards to similarly situated applicants.”” Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, supra, 454 Mass. at 388, quoting B, C. Levey, Massachusetts Zoning and Land Use Law, § 7-22, at 195, 196 (1996). 1 fitid and rule, based on the evidence presented at trial, and on my view, which included views of both properties, that the traffic concems and other concems expressed by the Municipal Council as the basis for its dénial, were pretexts, and that the real reason for its decision was ther than as stated in its written decision. This is the essence of a decision that is based on reasons that are “mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law.” Vazza Props,, Inc. v. City Council of Woburn, supra, 1 Mass, App. Ct, at 312, Tneed not determine definitively in this respect what the Municipal Council’s real reasons for denial were. By concluding that the reasons given could not have been the real reasons for denial, in light of the unexplained different results for two almost identically situated properties, Thave determined that the Municipal Council's decision was either arbitrary or its reasons for denial were legally untenable, I. ° THE MUNICIPAL COUNCIL'S DENIAL WAS NOT RATIONALLY SUPPORTED BY CREDIBLE EVIDENCE. ‘Having established that the Municipal Couneil’s decision was not legally tenable, Inieed not consider whether any rational view of the facts supports the Municipal Council's conclusions. See Sedell v. Zoning Bd. of Appeals of Carver, 74 Mass, App. Ct. 450, 455 (2009). However, even under this more deferential part of the court’s inquiry, the Municipal Council's decision does not withstand scrutiny. ‘This inquiry looks to “whether the [Municipal Council] has denied the application by applying those criteria end standards in an ‘unreasonable, whimsical, 15capricious or arbitrary’ manner.” Britton v. Zoning Bd. of Appeals of Gloucester, supra, 59 ‘Mass. App. Ct. at 74. “The board, in the proper exercise of its discretion, is free to deny a special permit even if the facts show that such a permit could be lawfully granted.” Pioneer Home Sponsors, Inc, v. Bd. of Appeals of Northampton, | Mass. App. Ct. 830 (1973). However, a special permit granting authority may not deny a special permit “in the absence of credible evidence” supporting the reasons given for its denial. Shirley Wayside Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass. supra, at 485. Applying this standard, I find that the Municipal Councils reasons for denial are not rationally supported by the facts, or are arbitrary and. unreasonable, ‘The Municipal Council's findings were to a great extent conclusory and devoid of factual support: “{T}he proposed use is not in the best interest of the City...the proposed use was not in harmony with the general purpose and intent of the ordinance.” These conclusory findings, on their own, cannot support a denial. Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, supra, 454 Mass. at 386. The factual findings arguably intended to support these conclusions are addressed below. a ‘The Council's Findings that the Proposed Facility Would Exacerbate Traffic Problems on Winthrop Street and in the Neighborhood and Would Create a Nuisance Were Not Supported by Credible Evidence.and Were, Arbitrary and Unreasonable. ‘The Municipal Council, in its decision and at trial, maintained that increased traffic problems on Winthrop Street and in the nearby neighborhood expected as a result of the proposed retail marijuana dispensary was its “predominant” reason for denialof Bask’s application. In this regard, the Municipal Council found that: While not exclusive, concerns about increased traffic, a convoluted onsite traffic flow and ancillary effects of such increased traffic Exh. 2. 16were predominant, as well as the location of the proposed project in reaction to a traffic light, offset intersecting streets, and area neighborhoods and residences. Itis a heavily travelled area presently, and the proposed project would increase traffic, more so than other historical uses of the property. The Council took into consideration the effect of traffic on the neighborhood, including noise; impact on pedestrians, impact on residents and passersby alike, quality of life concems, and, safety concems related thereto... The Council determined that the proposed use would create a nuisance and potentially a serious hazard to vehicles and pedestrians. ‘Winthrop Street is a “principal arterial roadway”®” with a traffic volume of about 14,000 vehicles passing the Property daily.** A traffic light was installed ori Winthrop Street in May, 2019 just west of the Property at the intersection of North Walker Street. The traffic light has improved access for vehicles entering Winthrop Street from North Walker Street, and is expected to reduce the number of accidents caused by vehicle conflicts between vehicles making left turns ‘onto North Walker from Winthrop and onto Winthrop from North Walker. But until a recent change in the timing of the signal expected to have become effective in October, 2020, which is expected to improve the situation, the new traffic light also caused long backups for westbound traffic during the evening peak hours, extending eastward from the light, past the Property, and past the site of the subsequently approved retail marijuana dispensary at 354 Winthrop Street. ‘Heather Monticup, a registered professional engineer with a concentration in traffic engineering, testified on behalf of Bask that she conducted a traffic impact and access study of the Property and the nearby streets in March, 2020. She testified that the convenience store and. beer and wine package store curreritly operating at the Property has three curb cuts, two onto Winthrop Street, and one onto Cohannet Street. None of these are regulated to limit incoming and outgoing traffic. In order to minimize conflicts, the configuration for the proposed marijuana 2" Vol.I,p. 190. °* Exh. 16, Table 1. Tr, Vol. I, pp. 165, 169, 171 v7dispensary will change the three driveway entrances so that the westerly curb cut will be for right tum exiting only, with no left turns allowed, so as to prevent cars at the Property from conflicting with the queue of cars at the light, which is closest to that side of the Property. The easterly curb cut will be'for entrance to the Property only; for the same reason. Vehicles exiting the Property will only be allowed to make a left tum onto Winthrop Street from Cohannet Street, after exiting the Property at the Cohannet Street exit, so as move left turn movements 350 away from the new light, which is as far away as possible. I credit Ms. Monticup’s testimony that this arrangement Will prevent worsening of the situation (assuming it is not otherwise resolved by the change in timing of the signal) and I credit her testimony that this arrangement will result inan improvement in terms of safety and queuing times over the current situation for traffic entering, and leaving the parking lots for the current convenience and package store." Talso credit Ms. Monticup’s testimony that the proposed new retail marijuana dispensary at the Property will not have any appreciable harmful effect on traffic on Winthrop Street or other nearby streets. I credit the conclusions she testified to with respect to her traffic study, indicating that traffic from the proposed dispensary will not result in other than de minimis increases in queuing times at the site driveways and adjacent intersections, and will not result in a deterioration in level of service at any intersection, with the exception of the intersection of ‘Winthrop at North Walker, which will experience only a technical decrease ftom a level of service of “B” to “C” because of a 0.8 second increase in queuing times only on Saturdays at the midday peak hour.*! J find this to be a de minimis change. Ms, Monticup further testified, and I credit her testimony in this respéct, that none of the studied intersections will be exposed to a Ty. Vol. pp. 29-31, 95, Bax, 16, Table 5. 18level of traffic above their maximum capacity as a result of traffic generated by the proposed marijuana dispensary. . The Municipal Council offered no admissible evidence, credible or otherwise, to counter the evidence presented by Bask, which Thave credited, thatthe proposed marijuana dispensary will not add to traffic difficulties on Winthrop Street or at other nearby intersections, and will in some respects add to safety and improve traffic notwithstanding a slight increase in vehicle counts, and that it would be operated safely in terms of traffic movements. Based on the facts proved at trial, there was no rational basis forthe denial ofthe requested special permit on the basis of traffic-related issues or on the basis ofthe conclusory finding that the proposed use would create a nuisance and safety hazard to vehioles and pedestrians. ‘The Municipal Council’s decision was arbitrary and unreasonable for the additional, independent reason that its approval ofthe special permit forthe larger retail marijuane dispensary at 354 Winthrop Street less than four months after the denial of the application for 400 Winthrop Street, with no apparent explanation at trial demonstrating why one facility would exacerbate traffic and the other larger facility generaiing twice as many vehicle tips would not, or why one facility would negatively affect the neighborhood and the other would not, is inherently and demonstrably arbitrary. See Wendy's Old Fashioned Hamburgers of New York Ine. v. Bd. of Appeal of Billerica, supra, 454 Mass. at 388 (Municipality's claims of traffic as ‘alid justification for denial of special permit belied by granting of similar relief to abutter on same street); Colangelo v, Bd. of Appeals of Lexington, 407 Mass, 242, 246 (1990) (Board's decision denying zoning relief to project that would have added 296 vehiole trips on basis of traffic impact on adjacent roadway, followed by approval, within a year, of other projects that None of the studied intersections will experience « maximum volume to capacity ratio of 1.0, nor will any experience any appreciable increase inthis ratio asa result of traffic generated by the proposed use, Exh. 16, Table 5. 19would add 1,571 vehicle trips to same roadway, was “unreasonable, whimsical, capricious, and anbitrary...to base its exercise of discretion on an imperceptible increase in traffic congestion. which had existed for years, while approving, immediately before and after denying the plaintiffs” request, projects which added significantly more traffic is inexplicable and, therefore, an abuse of discretion”). 5, The Municipal Council's Finding that the Building on the Property Was Not-Set Back Far Enough From the Road Was Not Supported by Credible Evidence and Was Arbitrary, In its decision, the Municipal Council offered what can only be termed a throw-in conclusory finding that, “The Municipal Council also desired a site in which the proposed use ‘was set back from the road.” At trial, the Municipal Council offered no suggestion, let aloné evidence, why the setback of the existing building on the Property of 25 to 26 feet presents any problem from a planning, safety or operational perspective. The building on the Property has been in use for many years, first as a used car dealership and then a convenience and package store, and is lawfully nonconforming with respect to front yard setback.“ Bask offered evidence, which I credit, that the front setback would be used in part for an 18-foot wide driveway between the east and the west parking lots on the Property, and that this driveway would adequately and safely service the Property. Bask further offered testimony, which credit, that the remainder of the setback would be used for landscaping and a sidewalk, that the customer entrance to the building would be on the east side of the building, directly adjacent to the customer parking lot, and that the front entrance of the building would not be used as a customer entrance, thereby © Beh,2. “Exh, 17, Chapter 440 ofthe Ordinances ofthe City of Taunton. Intensity of Use Table. The table reuires a 30- foot front yard setback for non-residential uses; the building is setback 25 to 26 fet. 20eliminating any possible pedestrian conflict with the driveway.“ The Municipal Council did not offer any evidence at trial as to why this arrangement was less than “desirable.” ‘Where the Municipal Council has not offered any evidence at all to support its finding or to counter Bask’s evidence to the contrary, I find and rule that the Municipal Couricil’s finding that the setback of the building is inadequate, or not “desirable,” was unreasonable and arbitrary, c. ~The Municipal Council's Finding that the Use as Proposed Was Not Adequate or Appropriate to Provide for Proper Operation of the Use Was Not Supported by Credible Evidence, The Municipal Council’s sole other finding that was not entirely conclusory and a mere repetition of the standards in the Ordinance, was its finding that “the project as proposed was not adequate or appropriate to provide for proper operation of the proposed use.” As with traffic, Bask presented extensive evidence, which I credit, demonstrating that Bask, an experienced operator of marijuana dispensaries, with another Massachusetts dispensary in operation, and with a licensed and operating cultivation and processing facility also in Massachusetts, will operate the proposed facility in an appropriate and professional manner. This included testimony of Jeffiey Tallman, d registered professional engineer, concerning the site plan layout, including layout and sufficiency of parking areas, more than adequate number of parking spaces for customiers and employees, improvements to vehicular entrances and exits, operation of parking areas and location of entraices, and provision of a secure loading area; and testimony of ‘Timothy Keough, the president of Bask, as to Bask’s experience at its currently licensed facilities, and as to proposed operational plans for the proposed facility, including the required scheduling of appointments for customers, and training of employees.” The Municipal Council Tr. Vol. I, pp. 42, 44-45, 51-52; Exh. 4. “Tr, Vol. pp. 77-78. Tr Vol I, pp. 97-154, adid not offer any evidence, credible or otherwise, to the contrary. Thus, based on the facts proved at trial, the Municipal Council's finding in this regard was unreasonable and arbitrary. d. The Remaining Findings Were Merely Conclusory Repetitions of Special Permit Standards in the Ordinance, ‘The remaining findings by the Municipal Council were as follows: ‘The Council determined that the proposed use was not compatible with the characteristics of the surrounding area, including the residential areas on and adjacent to North Walker Street, South Walker Street and Cohannet Street. The Municipal Council determined that the proposed use was not in harmony with the ‘general purpose and intent of the ordinance. ‘These findings are not so much findings, as they are conclusions, with no factual findings in the Municipal Couneil’s decision that even arguably support them. Such conclusory statements, that are little or no more than repetitions of the standards set forth in the Ordinance, do not satisfy the requirement that a special permit granting authority must set forth detailed factual findings in support of its decision, Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Ba, of Appeal of Billerica, supra, 454 Mass. at 386. To the extent that the Municipal Council based its decision on a finding that a'marijuana dispensary is incompatible with nearby residential districts, such a decision is incompatible with the legislative decision to make retail marijuana dispensaries a permissible use in the Highway Business District, which is located on and along Winthtop Street, within a relatively short distance of residential neighborhoods located near Winthrop Street, on North Walker Street, South Walker Street, and Cohannet Street. Some houses on these side streets, if they are located ‘within 500 feet of Winthrop Street, are themselves in the Highway Business District. It was a legislative determination to place some residential uses in a commercial district where highway ‘business uses are allowed. For houses more than five hundred feed from Winthrop Street, these residential neighborhoods, separately zoned, are geographically and legally distinct from the- 22busy commercial corridor on Winthrop Street, which is zoned for and replete with gas stations, convenience stores, liquor stores and automotive dealerships. It was a logical and rational decision for the city of Taunton to include reteil marijuana dispensaries as uses permitted by special permit in such a business district. It cannot then determine onan ad hoc basis that such uses are incompatible with nearby residential districts, when the whole nature of the Highway Business District is that itis a narrow corridor of intense commercial uses, with residential districts nearby on both sides of Winthrop Street.‘ ‘The decision is also arbitrary and unreasonable on the basis of incompatibility with residential areas on nearby cross streets for an additional reason, again related to the disparate ‘treatment of the proposal for the Property and thi for the property at 354 Winthrop Street. The residential areas on South Walker and North Walker Street are located considerably farther away from the Property at 400 ‘Winthrop Street than is the residential area on Parker Street from the ‘approved facility at 354 Winthrop Street. Again, the Municipal Council offered no explanation at trial for this apparently disparate treatment of the two proposals in this regard, For the reasons stated, the findings thet the proposed use is not compatible with the character of the surrounding areas, and the conclusion that the proposed use is not in harmony with the general purpose and intent of the Ordinance were unreasonable and arbitrary. ‘Exh, 13, 2020 City of Taunton Zoning Map; | also take judicial notice of the GIS version ofthe Zoning Map, and that the Highway Business District is approximately 1000 feet wide, with 500 fet tothe north and 500 feet othe south ofthe centerline of Winthrop Street. Bah 5. 23CONCLUSION For the foregoing reasons, I find and rule that the Municipal Council’s decision was legally untenable, arbitrary, capricious, unreasonable, and otherwise beyond the proper exercise of the Municipal Council’s lawful authority. The decision of the Municipal Couneil is therefore ANNULLED. Furthermore, because on the facts found in this imatter, “no rational view of the facts the court has found supports the {special permit granting authority]’s conclusion that the applicant failed to meet one oF more of the relevant criteria found in the governing statute or by-law,” Britton v. Zoning Bd. of Appeals of Gloucester, supra, 59 Mass. App. Ct. at 74-75, an order requiring the issuance of the requested special permit is appropriate, An order for the issuancé of a special permits “appropriate where remand is utile or would postpone an inevitable result.” — Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, supre, 434 Mass, at 388, See also Shirley Wayside Limited Partnership v. Bd. of Appeals of Shirley, supra, 461 Mass, at 474, 485. ‘Judgment will enter annulling the decision of the Municipal Council and ordering the issuance of the requested special permit, ward cher Justice Dated: December 23, 2020EXHIBIT BCOMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT BRISTOL, ss. MISCELLANEOUS CASE No. 19 MISC 000529 (HPS) BASK, INC., Plaintiff, v ERNEST C, BORGES, DEBORAH A. CARR, DONALD L. CLEARY, GERALD A. CROTEAU, JOHN M. McCAUL, JEANNE M. QUINN, JEFFREY S. POSTELL, DAVID W. POTTIER and BARRY C. SANDERS, as they are members of the CITY OF TAUNTON ‘MUNICIPAL COUNCIL, Defendants, | JUDGMENT This action commenced ori October 25, 2019, as an appeal pursuant to G. L. c. 40A, §17, ofa decision of the city of Taunton Municipal Council (“Municipal Council”), sitting as a special permit granting authority. The case came on for trial by the court (Speicher, J.). Ina decision of even date, the court has made findings of fact and rulings of law. In accordance with the cou:t’s decision, itis ORDERED and ADJUDGED on the sole count of the Complaint, that the decision of the Municipal Council regarding property at 400 Winthrop Street in Taunton, dated October 1, 2019, and filed with the Taunton city clerk on October 8, 2019, is hereby ANNULLED, and it is furtherBy the Court (Speicher, J.) ORDERED and ADJUDGED that the Municipal Council is hereby ORDERED to FORTHWITH issue the special permit as applied for by the plaintiff; and itis farther ORDERED, in accordance with the court’s authority pursuant to G. L. ¢. 40, §-17 to “make such other decree as justice and equity may require,” that the special permit shall be issued in sufficient time for the plaintiff to apply for a license pursuant to Chapter 222-1 of the Ordinances of the City of Taunton and to participate as an applicant in any hearing held by the Municipal Couneil with respect to the issuance of licenses pursuant to said Chapter 222-1, and that the Municipal Council shall consider stich application by the plaintiff for a license pursuant to Chapter 222-1 at any suich hearing along with all other duly filed applications, and it is further ORDERED that today’s decision, and this Judgment issued pursuant thereto, dispose of this entire case; the court has adjudicated or dismissed all claims by all parties in this action and has not reserved decision on any claim or defense. Attest: Deborah J. Patterson Dated: December 23, 2020EXHIBIT CMassachusetts Appeals Court Case: 2020~J-0562 Filed: 12/90/2020 2:46 Pl 3 DECEMBER 28, 2020 vU Ss HONORABLE SHAUNNA L. O'CONNELL, MAYOR w COUNCIL PRESIDENT BARRY C, SANDERS: oO AND MEMBERS OF THE MUNICIPAL COUNCIL ‘PLEASE NOTE: THE FOLLOWING COMMITTEE MEETINGS HAVE BEEN SCHEDULED FOR (MONDAY, DECEMBER 26, 2020 AT 6:30 PM, AT TAUNTON CITY HALL.15 7 ‘SUMMER STREET, TAUNTON, MA, 02780 IN THE GHESTER R. MARTIN ‘MUNICIPAL COUNGH, CHAMBERS BE. F ‘THE COMMITTEE ON POLICE AND LICENSE 1, MEET WITH THE POLICE CHIEF AND DETECTIVE RUTHERFORD ON APPLICATIONS FOR NEW MARIJUANA LICENSES AS FOLLOWS: GTE TAUNTON, LLG, 295 BROADWAY HTC TRINITY LLC,354 WINTHROP STREET LMCC, LLC, 93 COUNTY STREET MASS MEDICUM CORP,, 300 REVOLUTIONARY DRIVE TREE MARKET TAUNTON LLC, 9 CAPE ROAD 2, MEET“TO REVIEW MATTERS'IN FILE. PLEASE NOTE: A “MEETING” OF THE ENTIRE MUNICIPAL COUNCIL, AS SAID TERM IS DEFINED IN MASS. GEN, L.‘C. 30A, 518 MAY OCCUR CONCURRENTLY WITH THIS COMMITTEE MEETING Respectfully, Colleen Ut, Clie Colleen M. Ellis Clerk of Council CommitteesEXHIBIT DMassachusetts Apposts Court Case: 2020~J.0562 Filed: 12/90/2020 2:48 PM Richard Burke Os From: Tim Keogh Sent: Monday, December 28, 2020 1:47 PM To: tauntoncouncil@taunton-ma.gov Subject: Bask ~ Local Marijuana Retail License application Attachments: Bask Cover Letter - Taunton Retall License.v.12.28,pdf Dear Municipal Council for the City of Taunton, Please find attached to this email a brief memo from Bask’s CEO regarding our local marijuana retail license application which we intend to have complete and filed this week, ‘Thank you, Tim Keogh Bask, Inc.Massachusetts Appeals Court Case: 2020410562 Filed: 12/90/2020 2:48 Pl Bask, Ine. 2 Pequod Road Fairhaven, NA 02719 olophone(774)305-4749 BASK co December 28", 2020 Via Hand Ds Municipal Councit City of Taunton, 141 Oak Street ‘Teunton, MA 02780 al Fat nt to Bask, Inc’s Marjuer ication Dear Municipal Council for the City of Taunton: Bask in actively compiling our local marijuana retail license ("License") application and we intend to file the application and supporting documentation as soon as possible this week, We do not want to prolong the application process, but we do want to make sure we file a complete application to be considered for licensing. ‘As we finalize our application, we submit this letter to summarize some additional, and relevant facts that may not otherwise be addressed in the application materials, 1. BASK, INC’S APPEAL OF THE DENIAL OF THE SPECIAL PERMIT SHOULD NOT BE USED AS A FACT AGAINST AWARDING THE LICENSE At the outset we would like to address the history between Bask, Inc, (‘Bask’) and the City of Taunton (‘Taunton’), As the Taunton Municipal Council (the Counci) is aware Bask and ‘Taunton have been engaged in Itigation relevant to the Councit's denial of Bask’s application for a special permit to conduct retail marjuana seles at 400 Winthrop St. in the City (‘the Application’). twas after Justice of the Land Court's Trial Court Howard P, Speicher’s Decision and Judgment ordering the issuance of the Special Permit in sufficient time for Bask to apply for a License and {o participate as an applicant in any hearing held by the Council with respect to the issuance of licenses, that Bask comes before the Council with the enclosed License application. In its appeal from the Councits denial of the Application Bask was solely exercising its rights under state and local law. For the reasons enumerated in this correspondence, Bask has correctly believed from the. inception of this process that it wil be an excellent corporate partner and responsible operator in the City. Itis Bask’s sincere hope that the Iitgetion which has brought the parties to this point will not cloud the Council's judgment of Bask. In fact, Bask’s resolve in engaging in costly iigation to operate in Taunton shows a dedication to the City that should weigh in favor of awarding the License, i, BASKIS A PROVEN OPERATOR THAT WILL PROVIDE JOBS AND REVENUE TO THE CITY The possibilily of Bask operating a marijuana retailer in Taunton presents an excellent ‘opportunity for both Bask, and the City, Bask is a proven operator in Massachusetts. Bask has been involved In the Cannabis industry in Massachusetts since 2013, applying inthe first round ‘of medical licenses under the name Coastal Compassion. Wehave spent years working through the process in the Commonwealth for various license types, and today operate a medicalMassachusetts Appeals Court Case: 2020-J-0562 Filed: 12/90/2020 2:46 Pld © Page December 28, 2020 ‘matjuana dispensary in Fairhaven, and a Cultivation and Product Manufacturing facility in Freetown. Our adult-use marijuana retailer application for Fairhaven passed ts last inspection with the Cannabis Control Commission with zero deficiencies and is merely walting a vote from. the Commission to award a final adul-use license and begin adultuse retail sales at that location. Finally, after years of grinding through the process, Bask has become a viable operator in Massachusetts that has the wherewithal to execute in Taunton. Bask has a track record of safe and responsible cannabis operations in both Fairhaven and Freetown. As described, in addition to gamering the approval of those municipalities, the Cannabis Control Commission has vetted Bask, awarded various final licenses, and a provisional ficense to operate an adultuse marijuana retaler in Taunton, Ifthe Council awards a License to Bask, the Council can be confident thatitis awarding a license. to a company that knows what it takes to operate a cannabis business in a socially responsible and compliant manner. There is no risk in awarding this License end the local jobs and revenue that come from siting such a business will manifest and benefit the City and its residents in the near term, ll, BASK WAS FOUNDED AND IS OPERATED BY SOUTHEASTERN MASSACHUSETTS NATIVES WHO, IF AWARDED A LICENSE, WILL SATISFY ‘THE GOALS OF RESTORATIVE JUSTICE AND RESPONSIBLE OPERATION WHICH ARE THE UNDERPINNING OF THE CANNABIS INDUSTRY ‘Any company is merely @ product of the individuals running it and Bask was founded and is run by trustworthy individuals that are deserving of the issuance of the License. The perception that Bask is somehow “big cannabis" with no roots or dedication to the Southeastern Massachusetts, is simply fiction, We are local Massachusetts entrepreneurs who have work tirelessly to building our business from the ground up over the last 7 years. We have created over 50 full-time positions for residents of Southeastem Massachusetts and provided hundreds of thousands of dollars in tax Tevenue and impact fees to our host communities, Bask is dedicated to promoting equity in Its operations for diverse populations, which include Women, Minorities, Veterans, people who identfy as LGBTG+, and people with disabilities. Over 83% of Bask's Board of Directors and Executive Management Team fall within at least one of each category listed above, We refer to this as ‘walking the walk’ and not just paying ip service to diversity and inclusion, ‘Additional background of some of Bask’s team members can be found below, which is also ‘supported by the full team's resumes and Business Plan submitted with the enclosed License application, ‘A. Chapman Robert Dickerson, CEO Mr Dickerson (‘Chap"), CEO and Co-Founder of Bask, is an Army Veteran, Mattapoisett native ‘and an ideal operator that Taunton can feel proud to have awarded a license to. The Massachusetts Social Equity Program is focused on restoring justice to ‘those most impacted by the War on Drugs” including children of those with convictions for controlled substance law violations, See the Gui fn is. Revised by the jon: June 2020.Massachusetts Appecls Court Case: 2020-0562 Filed: 12902020 2:46 PM © Pages December 28, 2020 For the better part of his chidhood, between the ages of seven and eighteen, Chap's father was Incarcerated for just such a violation, Yet Chap did not lt this history hold him back. Today, in addition to spending over 75 hours a week running Bask, Mr. Dickerson Is a recent graduate of the Massachusetts Fire Academy class 087, and-a call/volunteer frefighter in Mattapoisett. There can be no greater dedication to Southeastern Massachusetts than volunteering to run into burning buildings and save its residents, Moreover, his responsibilty is demonstrated by the fact that he is a licensed pilot, He is also a Member of two boards: the Agricultural Commission and Conservation Committee of Mattapoisett. By awarding a License to Mr. Dickerson’s company, the Council will uly address the goals of the Social Equity program in Massachusetts, and can fee! confident, that the business will be operated by a trustworthy and ethical local who cares about the community. B, Gay F. Souza, Director of Security Mr. Souza, Falthaven's retired Police Chief and Navy Veteran joined Bask in October of 2019 as the Director of Security. Mr. Souza brings more than 30 years of experience in law enforcement operations, management, and training to Bask, Mr. Souza.also has a solid background as an attorney, criminal prosecutor and instuctor of police administration and management, at the undergraduate and postgraduate level. C. Melanie Dixon, Member of the Board of Directors, Financial Administrator Ms. Dixon has been active in the medical marjuana industry for 8 years in both Rhode Istand and Massachusetts, She is a Chinese American who comes from an entrepreneurial family with along history in the restaurant industy in Southeastem Massachusetts. She is a member of the Board of Directors and the Financial Administrator for the Company. She works closely with the CFO and Retail Manager generating sales and growth for Bask. D. Joanne Leppanen, Member of the Board of Directors, Director of Patient/Consumer Education JoAnne has over a decade of experience in the marijuana industry through her roles with the Rhode Isiand Patient Advocacy Coaltion and Bask. As the Executive Director of RIPAC, JoAnne served as an advocate and resource for more than 18,000 licensed medical marijuana patients. and their caregivers. She has worked with the Rhode Island General Assembly and state agencies as regulations were added and the RI Medical Marijuana Act was amended, She is a Member of the Legislative Oversight Committee on Compassion Centers in Rl. JoAnne has designed and implemented educational documents for patients, medical professionals, law enforcement, policy makers, and the public on the medical use of marijuana, and she has served as an expert to cles and towns, including the Mayor's Marijuana Task Force in Pawtucket JoAnne has been an integral contributor at Bask, as a Board Member and Director of Patient/Consumer Education and is an asset tothe communities in which Bask operates. E, Timothy Keogh, Member of the Board of Directors. Mr. Keogh (Tim) has been involved in the cannabis industry for 8 years and brings @ unique combination of real estate development and cannabis advocacy to Bask. As a member of the Board of Directors, Tim works with the Executive Management Team at Bask to implement proven business and operational practices and systems, Tim has been an invited speaker at Industry trade shows and identified by Marijuana Business Daily, a well-respected national trade Publication, in a cover article titled "People to Watch.” IV. BASK'S TRACK RECORD, AND THE INDIVIDUALS THAT OPERATE THE COMPANY, WARRANT A STRONG APPROVAL OF THE LICENSE APPLICATIONMessachusetts Appesls Court Case: 20204-0562 Filed: 123072020 2:46 PM © Page4 December 28, 2020 Bask’s believes that once the Municipal Council reviews the License application, they will clearly Understand that Bask satisfies all the criteria forthe issuance of a License, Blask's history in the cannabis industry in Massachusetts shows that the company is of high caliber with a proven ‘eoord of responsible operations, Bask is comprised of individuals that the City can be proud to work with, For the foregoing reasons, Bask respectfully requests that the Municipal Council award a Marjuana Retailer License to Bask. Bask will work tirelessly to operate a safe and responsible facility while providing jobs and revenue tothe City. Sincerely, JsiChapman Dickerson CEO Bask, Inc.EXHIBIT EMassachusetts Appeals Court Case: 2020-0562 Filed: 12/30/2020 2:46 PM. Richard Burke From: Richard Burke, Sent: Wednesday, December 23,2020 127 PM To: Mark Gould _ oe Richard Burke Subject: sk Mark, With the Court’s decision today ordering that the Municipal Council sue Baska special permit In time for them to be considered for a license along with other applicants, Bask willbe submitting Its license application and fee as soon as possible. They will also submita letter requesting an extension of thelr Host Community Agreement. Please let me know if anything ese needs to be done In order for Bask to be considered slong with other applicants. ‘Thank you and Happy Holidays, Richard ‘Sent from my iPhoneRichard Burke Richard Burke Monday, December 28, 2020 2:07 PM "Mark Gould’ FW: Bask - Local Marijuana Retail License application Bask Cover Letter - Taunton Retail Licensew.12.28 pdf Mark, Please see attached letter Bask sent to the Municipal Council regarding their intent to file their license application this week. Idid have a couple of questions for you regarding the application process. Please call me when you have a chance. I also wanted to speak with you concerning Bask’s request for a brief continuance of the Municipal Council meeting previously scheduled for tonight so that Bask can be considered with other applicants. Richard Richard E. Burke, Jr Law Offices Beauregard, Burke & Franco 32 William Street New Bedford, MA 02740 Tel. No. 508-993-0333" Fax No. 508-990-2045 CONFIDENTIALITY NOTICE: This message is intended only for the use of the individual or entity to which itis addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the * message to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or the taking of action in reliance upon the contents of this communication is strictly prohibited. If you have received the communication in error, please notify the sender immediately by reply e-mail and delete the original message. From: Tim Keogh Sent: Monday, December 28, 2020 1:47 PM To: tauntoncouncil@taunton-ma.gov ‘Subject: Bask - Local Marijuana Retail License application0205).0562 Filed: 12/30/2020 2:46 PM Richard Burke a Fro Richard Burke Sent: ‘Monday, December 28, 2020 5:36 PM To: Mark Gould Ce: Richard Burke Subject: Bask Following up on our phone conversation this afternoon, | do want to reiterate my belief that ifthe Committee ‘on Police and Licenses goes ahead with its meeting tonight they will be in violation of the Land Court’s Judgment. Bask will get its application submitted this week, The Council should give Bask an opportunity to be considered along with other applicants per the Court's decision. We are only talking about a short continuance. Please consider this. Richard Sent from my iPhoneBEAUREGARD, BURKE 22 WILLIAM STREET NEW BEDFORD. MA rH CERTIFICATE OF SERVICE 1, Richard E. Burke, Jr., do hereby certify that I have served the Ve Complaint for Civil Contempt to the following counsel: Mark S. Gould, Asst. City Solicitor City of Taunton 15 Summer Street ‘Taunton, MA 02780 via email and first-class mail this 11th day of January, 2021. RICHARD E BURKI IR. BBO. NO. 546847