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Zoning Loss for Cannabis Business Due to Predicted “Undue Traffic Congestion”

As part of the recent explosion in cannabis facilities in Massachusetts, in around 2020 Nova Farms sought four special permits from the City of Attleboro. Two of the permits would have enabled Nova Farms to establish a cannabis retail business and a Medical Marijuana Treatment Center (collectively, the “Facility”) on four abutting lots, and the other two permits would have allowed Nova Farms to alter the use of a pre-existing, non-conforming parking area thereon, which is currently located within the project site’s front-yard setback. The Zoning Board of Appeals (“Board”) denied all four permit applications, and a trial in the Land Court ensued, resulting in the decision Nova Farms, LLC v. Merkle et al.

As part of its project, Nova Farms proposed a variety of improvements to pedestrian safety in the area and to the roads surrounding the project site, including building a sidewalk, installing curbing, installing crosswalks with additional safety features, repaving areas of an abutting road, and making other improvements to increase the site’s ability to handle stormwater. Accordingly, the Court concluded that Nova Farms’ proposed use of a pre-existing, non-conforming parking area would not be substantially more detrimental to the neighborhood than the existing non-conforming use of that area and overturned the Board’s denial of the two relevant permits.

However, although the Judge concluded that due to its dilapidated state, the Facility would be a “vast improvement” to the project site, Nova Farms’ suggested improvements did not include a plan to ameliorate the predicted increase in traffic congestion to the area.  For example, according to the Judge, Nova Farms could have requested that Massachusetts Department of Transportation adjust/optimize a nearby intersection’s traffic light signals, but instead, Nova Farms contended that the Facility would not significantly impact traffic, an assertion that the Court rejected based on expert testimony.

Ultimately, the Court affirmed the Board’s denial of the two special permits to construct and to operate the Facility for three reasons: (1) there was sufficient evidence to conclude that the business would cause “undue traffic congestion,” (2) Nova Farms did not offer to mitigate that congestion, and (3) the Board and Nova Farms did not agree on what such mitigation should be.

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