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IV. Artificiality - Real or Apparent?
The last fifty years of the twentieth century was a period of unparalleled judicial creativity in the field of administrative law. Not only were the grounds of judicial review significantly extended, but the range of bodies subject to judicial review was also much widened. The functional justification for this growth in judicial review is obvious: there had been very considerable growth in the powers of government and, particularly when where there were few other effective forms of accountability, it is appropriate and necessary that the courts should ensure that these powers were fairly and reasonably exercised. But what was the constitutional justification for this extension of judicial review? Where was the legal rule or rules that gave the power to the judges to intervene? Put more directly what was the answer to the officious but pertinent question asked of our judges: who are you to interfere in the exercise of a discretion entrusted to a democratically accountable decision-maker by a democratically elected Parliament?
The orthodox foundation of judicial review was long thought to be the doctrine of ultra vires and several recent House of Lords decisions have upheld a form of the doctrine in terms. The traditional ultra vires doctrine holds that when the judges review, and in certain cases, quash the decisions of ministers and officials, they are simply policing the limits of the powers granted to the relevant decision-makers by Parliament. However, this traditional account seemed increasingly implausible as non-statutory bodies were subjected to judicial review - there could be no question of policing the statutory limits of their powers. Moreover, as the grounds of judicial review became more subtle it could hardly be said that Parliament ever had a specific intention in regard to every nuance of the increasingly complicated grounds of judicial review.
Consequently, several leading scholars and judges attacked the ultra vires doctrine as a justification of judicial review - often using such an assault as a stepping stone to an attack on the sovereignty of Parliament. The defence of a modified ultra vires doctrine by one of the present authors prompted something of a backlash, most notably from Professor Paul Craig. He contended that the flaws inherent in the ultra vires doctrine were so numerous and of such magnitude that the principle should be abandoned altogether, going on to suggest that the true foundations of judicial review lay instead in the common law. The core idea here is that when the courts impose the principles of good administration upon decision-makers, they are applying rules that do not derive from the intent of Parliament but from the common law.
This debate over the true foundations of judicial review stimulated by this exchange of views has formed a prominent and lively part of discussion in public law in England over the past six years. Given its similar constitution, New Zealand's public lawyers may have a contribution to make. They should in any case be interested in what has been a fiercely argued and impassioned debate about the background of a crucial component of a just legal system.
Before we ask ourselves what is the true basis - or justification - for judicial review, we must first consider why it is necessary to find such a justification. After all, the desirability of judicial review as an aspect of the British legal system is beyond doubt. However, it is generally recognised that it is an exceptional remedy. It is premised upon bringing before the unelectedjudiciary a challenge to a decision made outside of the courtroom; one made by an individual, or a body, that may well derive its power to determine such matters from statute, this being the law as put into place by the elected representatives of the people in Parliament. The decision-maker himself or herself will be elected, or accountable to an elected representative. There may also be statutory rules or guidelines on how the decision is to be reached that will come into play. We are back at our officious question: where do the courts derive the power to interfere in the making of such decisions?
Without an answer, we are unable to explain the merging of the spheres of power that seems to occur when judicial review is sought and brought. Solid constitutional foundations are a very necessary element of the power, force and utility of judicial review. How, consistently with the democratic nature of our constitution and the doctrine of the separation of powers, can a non-elected element of the constitution override the decision of a democratic element?
In the light of the difficulties surrounding ultra vires - set out above — the common law might seem an attractive answer. However the apparent simplicity of such an approach belies the quite real and serious difficulties that arise were ultra vires to be abandoned altogether. First of all, 'the common law' is an exceptionally broad term. Unlike ultra vires, it gives a judge no concrete starting point for her or his consideration of the legality of a decision. Ultra vires, at least, provides that the court examines whether the particular decision is consistent with the powers of the decision-maker - a quite clear objective, albeit sometimes difficult to realise. But the judge is directed to the terms of the relevant statutes and seeks to find there the answer to the question. In contrast, there simply is not found in the capacious bosom of the common law answers to precise questions posed by judicial review, e.g. those concerning the level of natural justice to be applied in each particular case. It can be seen that relying on the common law, rather than ultra vires, would provide us with far less coherent and indeed less principled reasoning. But there are even graver consequences.
And an immediate such consequence would be that the sovereignty of Parliament would be challenged. Consider a situation in which the legislature had the power to disapply the principles of good administration, for example if it were able to order that a decision might be made without heeding the rules of natural justice. This is certainly a realistic scenario in the United Kingdom and we expect that it would be relatively uncontroversial in New Zealand. Suppose Parliament were to decide, and make its intent clear — perhaps as part of the war against terrorism - that certain immigration decisions could be made without heeding the rules of natural justice, so that there was no obligation, as there would usually be, to disclose to the would be immigrant the source and nature of the immigration officer's doubts about his or her suitability for admission. There would be dismay in many circles over this but there would be little doubt that the legislation would be valid and the judges would loyally uphold the legislation.
All this is straightforward if ultra vires is the foundation of judicial review. But the difficulty that the common law theorists face in these circumstances is this: if the decision-maker complies with all the requirements of the statute, express or implied, for the validity of his or her decision, then the court cannot add an additional requirement 'drawn from' the common law without challenging Parliament's power to lay down the requirements for validity - that is, without challenging sovereignty. Such a difficulty does not arise with the ultra vires doctrine because all that is happening is 'the application of the law itself, and the law of Parliament to boot'. Carrying out Parliament's will is precisely what the court sets out to achieve. In other words, to adopt the common law as the foundation of judicial review is in fact to challenge the sovereignty of Parliament. The logic of this argument is unanswered and indeed is unanswerable for as long as Parliament is sovereign. This is recognised in terms by Trevor Allan - no friend of the ultra vires doctrine - in his recent article.
It can be seen, then, that the effect of abandoning ultra vires would be to abandon the need for the courts to respect the legislative intent of Parliament. Such a consequence does not seem to concern some advocates of the common law approach. One reason for this is their constant refrain that the ultra vires doctrine is 'artificial' or as Craig puts it, 'does not accord with reality'. It is argued that in relying upon ultra vires, we are not really applying the will of Parliament at all; therefore it is safe to dispose of the doctrine.
It may be doubted whether this criticism is quite as convincing as it at first appears. Of course, those who make the case for ultra vires readily acknowledge that certain aspects of the doctrine may appear artificial and can take this point on board when making their case. The doctrine is not negated by its perceived artificiality. This is partly because artificiality is not always present. Ultra vires requires that we uphold the intention of Parliament; and this the court can be said to be doing if it applies the doctrine so as to enforce the express provisions of a particular statute. There is nothing artificial about the working of ultra vires in such a case. The idea of 'artificiality' only becomes relevant when the wording of an Act is not clear, or when conditions are implied into a statute. Even in this kind of case, the matter is not clear-cut. Critics argue that it is straining the ultra vires doctrine for the courts to say that they are acting as Parliament intends them to act in cases where precise provisions or instructions from Parliament are not forthcoming. The difficulty with this line of argument is that it supposes that everything Parliament intends, and indeed stands for, is contained entirely within the express provisions of statute. But, as one of the authors of this article argues elsewhere, even though a particular Act may well lack explicit guidance on how decision-makers are to reach their conclusions, 'it is not unreasonable or implausible to impute to Parliament the intention that decision-makers should comply with the principles of good administration'. In such a case, it should be evident that the courts are bringing forth a perfectly reasonable, realistic and valid Parliamentary intention — not a manufactured one. It might be argued that even if real, the intention has been derived by 'artificial' means - that is, by drawing inferences, etc. - but this is not entirely supportable, either, as the starting point, and the focus of any such enquiry will always be the statute itself.
the so-called rules of natural justice are not engraved on tablets of stone ... [W]hat the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.
This dictum explains the judicial task in setting the measure of natural justice applicable in any particular circumstances, but without any mention of the common law. True enough the duty of fairness is engaged when the statute empowers a body to make decisions affecting individuals. So sometimes that trigger may be the individual's common law rights. But the common law has no further role to play. The 'character of the decision-making body' - are its decisions determined by policy or through the application of rules of law? - must be considered but that is plainly determined by the statute setting it up. Similarly, 'the kind of decision' which is made must be determined by the statute granting to the body the power to make the decision in question. And 'the statutory ... framework' is self-evidently determined by the statute. Thus the judicial task of laying down a procedure that would achieve fairness is structured by the statute and infused by conclusions drawn from the statute. The creativity of the judiciary should not be underestimated but it is not something that takes place in isolation from the statute. Indeed the role of the statute in this context is as vital as it is inevitable: how, other than by looking to the statute, is the court to know the context in which it must secure fairness? Rather than conjuring an indefensible notion of an intention out of thin air - as the term 'artificial' suggests - the courts instead are able to adopt a structured approach in order to derive Parliament's intention, founded on the basis Parliament has given them - that is, the statute. The intention is being sought, quite rightly and properly, in the place in which it has been manifested.
A typical ouster clause may provide that regulations or decisions made 'in terms of the Act' shall not be challenged in the courts. However, as we have seen, the ultra vires doctrine allows us to imply the grounds of judicial review from the Act. With this is mind, it follows that a decision in breach of natural justice - where that is express or to implied from the Act — for example, is not made 'in terms of the Act' - and the ouster clause does not bite, i.e. is ineffective to prevent judicial review. This was what happened in the case of Anisminic Ltd v Foreign Compensation Commission. However, when ultra vires is abandoned a decision made in breach of natural justice - which now comes from the common law — will naturally always be made ' in terms of the Act'. And the ouster clause will be effective. This was the view taken in the South African case of Staatspresident v United Democratic Front. So the abandonment of ultra vires means that straightforward ouster clauses would become effective. This amounts to a substantial evisceration of the reach of judicial review and a profound derogation from the principles of the rule of law. It is, of course, not intended by the common law theorists but it is perfectly logical and this logic has been adopted in terms by the highest court at the time in South Africa. It requires a cogent response from those that would abandon ultra vires. Craig's response is that this is not the unavoidable outcome when judicial review is stripped of its ultra vires roots. He goes on to explain the way in a which a court could rely on 'a common law constitutional principle' in order to prevent the working of the ouster clause; that is by recognising that 'the inherent power of the courts should not readily taken to be wholly excluded from review'. The court could then go on to consider the nature of the alleged error before them; the ouster clause would only be effective if the error was not one challengeable under standard heads of review. Craig's argument does not stand up to scrutiny. For one thing, we are yet again faced with the parliamentary sovereignty issue: the statute appears to say clearly that the decision should not be challenged. Only the ultra vires doctrine allows us to review the decision without setting up the supposed 'inherent power' of the courts against the will of Parliament. But there is a more specific and fundamental problem underlying Craig's logic. He asserts that no court would necessarily reason as the South African court did in the UDF case, nor indeed as the House of Lords did in Anisminic; therefore neither case aids the proponents of ultra vires. It is true enough that neither case was a foregone conclusion - but then, no case is. So, even if the inherent judicial power to which Craig refers can be shown to exist there is nothing to say the court would use it, or how they would use it. It is not justified for Craig to tell us on the one hand that the court would not be forced into the reasoning of the UDF case, and on the other to state that '...a judge would reason as follows...' (emphasis added). He or she might not necessarily reason in the way he argues at all. The outcome would not be certain. Thus, Craig's supposed common law safeguard against ouster clauses moves us no further forward at all. The fact is that this perfectly logical reasoning was accepted in the UDF case and, if ultra vires were abandoned, it could be adopted in other cases. The case of Boddington v British Transport Police illustrates another major problem that would surface were ultra vires to be abandoned. This case established that an individual could defend themselves against a criminal charge brought under a particular bylaw by arguing that the bylaw itself was invalid. They were not restricted, as some cases, had suggested that they could only challenge the validity of the bylaw by way of an application for judicial review. After all, said the courts, judicial review for any one of a number of reasons - delay, denial of leave, insufficient means — might not be possible. If the court were then to insist that the challenge could only made by means of judicial review, it can be seen that a person could be sanctioned for breaching a bylaw that was in fact itself illegal. Hence the acknowledgement of the possibility of this defensive, or collateral, challenge.
But if ultra vires disappears, then so too would collateral challenge. This is because ultra vires makes possible such a challenge. Magistrates' courts do not have the power to issue certiorari; they cannot quash an invalid bylaw. However, they will not enforce bylaws that are void, because to do so would be to give effect to legal nullities. But a bylaw is void because it has been made ultra vires; an intra vires bylaw would typically be considered merely voidable, i.e. as an existing law that is liable to be set aside. The magistrates' court cannot strike the law down or ignore it; it is bound to follow it, and collateral challenge would therefore fail. Collateral challenge is thus quite clearly wrapped up in the concept - and practical application - of the ultra vires doctrine.
But even if the courts did have an age-old, inherent right to judicial review, distinct from the power - and will - of Parliament, the problem will not be solved. The difficulty with going back to the time of the Magna Carta, however attractive an ancient right of the judges may seem, is that today's Parliament is based on a very different political system and the cases to which Craig and Joseph refer reflect antiquated notions of Parliament. Craig's reference to the nineteenth century betrays his historical argument by illustrating the very point forgotten by those who point to an age-old judicial right or privilege: the growth of democracy, which began to take shape during the 1800s as ideas of popular democracy emerged, and as through Parliamentary reform the slow move towards universal suffrage began. Are we to imagine that such developments could have had no impact whatsoever upon the role and power of the courts? Are we supposed to believe that many hundreds of years ago, the courts granted themselves a right that has remained unchanged in its focus and potency despite sweeping changes in the way the country is governed and its people represented. A detailed examination of the rights and wrongs of the principle of Parliamentary sovereignty is not within the scope of this article. It is of course possible to conceive of situations in which the sovereignty of Parliament is a very bad thing, i.e. where Parliament is not freely elected, and is controlled by undemocratic forces - as was the case in South Africa during the years of apartheid. It is much more difficult to level criticism at sovereignty where Parliament is freely elected, and representative of a polity in which democratic values are deeply ingrained. Whatever the merits of the debate, it is enough for us to realise that the law-makers of Parliament have at least partly been chosen by the people for that role; the judges have not. Parliament speaks with a democratic legitimacy which the judges, being unelected officials, will never have. Misty-eyed rhetoric about the wisdom of the common law in the keeping of the judges is, to put it bluntly, hogwash designed to cast a mask of legitimacy over what is essentially a judicial usurpation of power. Parliament is sovereign, and whilst it remains so, then this is the context in which a justification for judicial review must be found. Parliamentary sovereignty is a fundamental aspect of the constitution - how could the judges by themselves, without reference to the other branches of government- shift the ultimate constitutional power from the hands of the elected representatives into their own hands?
Alongside his support for the idea of an age-old judicial right to review, Professor Philip Joseph advances the suggestion that there has been 'the eclipse' of ultra vires, both in his native country and in the United Kingdom. Joseph cites the recent NZ Court of Appeal case of Peters v Davison in the keypin of his argument. He suggests that the key issue for the judges in that case was not the question of whether there had been some jurisdictional error by the decision-maker or tribunal (i.e., had the decision been made ultra vires) but whether there had been some material error - the idea being that this could be based upon the wider principle of the rule of law. The assertion that this case signals that ultra vires has finally been put to rest in New Zealand is a perplexing one. Joseph can indeed point to the joint judgment of Richardson P, Henry and Keith JJ, in which reference is made to 'errors of law' rather than ultra vires. But that case dealt with errors of law allegedly made by a commission of inquiry. The report of that body was not the exercise of a formal legal power that changed the legal position of any one or anything. Thus the use 'error of law' terminology rather than 'ultra vires' seems understandable. But none of this challenges ultra vires for it has never been part of the ultra vires doctrine that it implies the exclusion of the ancient jurisdiction to challenge for error of law on the face of the record. Moreover, at no point do the judges themselves say that what they are doing is contrary to the ultra vires doctrine. After all, in his separate concurring judgment — from which none of the majority judges dissents — Tipping J states emphatically that: '... ultra vires is the essential underpinning of all grounds for judicial review'; it is the 'central pillar' of such cases. He furthermore supports the words of Wade and one of the present authors in their Administrative Law to this effect, citing their explanation of the doctrine at length. The joint judgment does not reject ultra vires in terms, and this means that the interpretations of the law offered by Tipping J and the three judges are very much capable of being viewed as complementary rather than contradictory. They certainly do not amount to a deathblow for the doctrine. Peters v Davison simply does not decide what Joseph claims it decides.
The suggestion of ultra vires's 'eclipse' in the United Kingdom is even more confusing. Joseph himself has to concede that the English courts 'have not renounced the conceptual link with ultra vires '. He then cites a number of cases, including Page and Boddington, that have specifically upheld the doctrine, before essentially going on to point out that not all judges, including some of the country's most high-ranking, are fond of ultra vires (for example, Lord Cooke) and that Lord Steyn may, notwithstanding the line he took in Boddington, favour the rule of law. This can hardly be considered the demise of ultra vires in the United Kingdom.
In recognition both of the underlying difficulties with ultra vires and the very real problems that would surface should it be abandoned, one of the present authors and Mark Elliott put forward the 'modified ultra vires doctrine'. This sought to reconcile the modern creativity of judicial review with orthodox doctrine about the sovereignty of Parliament. The central idea is that it is reasonable and plausible to assume that where Parliament granted powers to a decision-maker, Parliament intended that those powers should be exercised in accordance with the principles of good administration as developed by the judges through the years. Parliament can, since it is sovereign, provide that the powers should be exercised other than in accordance with the principles of good administration, but it has seldom done so.
The modified doctrine has received a certain amount of criticism from some quarters. However, some of the attacks made have been fairly weak ones, to the effect that the ultra vires supporters are 'going back' on their previous arguments, and that they are doing so because they know ultra vires is a shaky, ailing doctrine incapable of being upheld. In fact, it is clear that the proponents of the 'modified doctrine', rather than undermining the doctrine, succeed in breathing new life into a concept which had perhaps begun in some areas to look a little archaic; their argument does not undermine the force of ultra vires but shows how it is still relevant and constitutionally vital. It has also be said that the essentially pure concept of ultra vires has been 'adulterated' by the inclusion of the idea that the principles that have evolved in the courtroom have a part to play. But ultra vires and such principles are hardly incompatible - in fact both are necessary in the reality of the courtroom, and it has never been denied that ultra vires is a concept, that has to be applied to real situations, and here the court's own rules come into play, giving the doctrine real scope and flexibility as well as practical utility in the modern world. There is a lot of high judicial authority in favour of the modified ultra vires doctrine - or something very akin to it. In Boddington, ultra vires was held to be 'the central principle of administrative law' in the judgment of Lord Steyn, and the speeches of the other judges offer similar sentiments. It seems that their Lordships in fact had something akin to the modified doctrine in mind - Lord Steyn goes on to discuss the general rule of procedural exclusivity 'judicially created' in O'Reilly v Mackman and how this has evolved through later decisions of the House of Lords. Here we can see support for ultra vires as the basic principle, plus the development of rules of good administration, combining to give the modern foundations of judicial review. A case like Lloyd v McMahon, discussed above, also seems to represent how the modified ultra vires doctrine works in practice, with the judges reaching their decision with the guidance of the statute, as interpreted and applied by the court. To say that judicial review is based on the common law alone is patently false in such a case; but so too is the idea that the court and its own developed principles have no influence at all. The modified doctrine recognises both schools of thought, together with the practical reality of what actually happens in judicial review cases, and importantly, ensures that through continued deference to the will of Parliament, via ultra vires, a challenge to sovereignty is averted, and constitutional orthodoxy remains intact.
[*]	Christopher Forsyth is a Reader in Public Law at the University of Cambridge.
Linda Whittle is a research assistant at Robinson College, Cambridge. This paper is an extended version of a lecture given by Christopher Forsyth at the University of Canterbury in September 2001.
 For full discussion see C F Forsyth, 'Heat and Light: A Plea for Reconciliation' in Forsyth (ed), Judicial Review and the Constitution (2000).
 Boddington v British Transport Police  UKHL 13;  2 WLR 639; R v Lord President of the Privy Council, ex parte Page  UKHL 12;  AC 682; R v Home Secretary, ex parte Pierson  UKHL 37;  AC 539; R v Home Secretary ex parte Abdi  UKHL 9;  1 WLR 298.
 We do not intend to discuss here the basis of judicial review of non-statutory powers as it has been done elsewhere. See M C Elliott, The Constitutional Foundations of Judicial Review (2001); C F Forsyth, 'Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review' (1996) 55 Cambridge Law Journal 122, 124-7. For present purposes it is enough to remark that there is a common law principle that prevents the abuse of monopoly power and that is the justification for judicial intervention in non-statutory cases.
 See, for example, Dawn Oliver, 'Is the Ultra Vires Rule the Basis of Judicial Review?'  Public Law 543 (who did not attack parliamentary sovereignty); Sir John Laws, 'Law and Democracy'  Public Law 72; Lord Woolf MR, 'Droit Public -English Style'  Public Law 57.
 C F Forsyth, 'Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, The Sovereignty of Parliament and Judicial Review' (1996) 55 Cambridge Law Journal 122.
 Paul Craig, 'Ultra Vires and the Foundations of Judicial Review' 57 Cambridge Law Journal 63.
 Most of the leading contributions to the debate are collected together in C F Forsyth (ed), Judicial Review and the Constitution (2000).
 The sovereignty of the UK's Parliament was confirmed in R v Director of Public Prosecutions, ex parte Kebilene  UKHL 43;  2 AC 326 in which it was stressed that not only does Parliament enjoy legislative freedom, but that no decision of any court is able to invalidate the specific provisions of an Act of Parliament. Moreover, Lord Bingham, the Senior Law Lord has recently said in 'Dicey Revisited'  Public Law 39, 44, that 'under the British Constitution parliamentary supremacy is, as Dicey said, an undoubted legal fact'.
 Lawrence Baxter, Administrative Law (1984) 303.
 Trevor Allen, 'The Constitutional Foundations of Judicial Review: Conceptual Conundrum or Interpretative Inquiry' (2002) Cambridge Law Journal 87.
 Forsyth, 'Heat and Light', above n 1, 397.
 See Mark Elliott, 'The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law' (1999) 58 Cambridge Law Journal 129.
  UKHL 5;  AC 625, 702.
  UKHL 5;  AC 625, 702-3.
  UKHL 6;  2 AC 147 (HL).
  4 SA 830 (A) discussed in detail by Forsyth, 'Of Fig Leaves and Fairy Tales', above n 5, 122.
  UKHL 13;  2 WLR 639.
 Philip Joseph, ‘The Demise of Ultra Vires - Judicial Review in the New Zealand Courts'  Public Law 354.
  EngR 1962; (1700) 1 Ld. Raym. 580.
 Joseph, above n 20, 354.
 See Wade & Forsyth, Administrative Law (8th ed, 2000), 21 AS. The power to quash for error of law on the face of the record in fact antedates the development of ultra vires.
 Joseph, above n 20, 361.
 Elliot, above n 12, 129.

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If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.
Trial judges are presumed to know the law with which they work day in and day out.
 Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell,  2 S.C.R. 311; McGhee v. National Coal Board,  3 All E.R. 1008 (H.L.).
 The general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Horsley v. MacLaren,  S.C.R. 441.
 The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury: Myers v. Peel County Board of Education;  2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw,  1 All E.R. 615 (H.L.); McGhee v. National Coal Board, supra. A contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske (1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff’d  2 S.C.R. 979.
 In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward,  2 All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is “essentially a practical question of fact which can best be answered by ordinary common sense”. Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof.
 It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. To borrow an example from Professor Fleming (The Law of Torts (8th ed. 1992) at p. 193), a “fire ignited in a wastepaper basket is … caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty the basket and so forth”. As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.
It has always been the law that a pursuer succeeds if he can shew that fault of the defender caused or materially contributed to his injury. There may have been two separate causes but it is enough if one of the causes arose from fault of the defender. The pursuer does not have to prove that this cause would of itself have been enough to cause him injury.
 The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm: Fleming, supra, at p. 200. It is sufficient if the defendant’s negligence was a cause of the harm: School Division of Assiniboine South, No. 3 v. Greater Winnipeg Gas Co.,  4 W.W.R. 746 (Man. C.A.), at p. 753, aff’d  6 W.W.R. 765 (S.C.C.),  S.C.R. vi; Ken Cooper-Stephenson, Personal Injury Damages in Canada (2nd ed. 1996), at p. 748.
 This position is entrenched in our law and there is no reason at present to depart from it. If the law permitted apportionment between tortious causes and non-tortious causes, a plaintiff could recover 100 percent of his or her loss only when the defendant’s negligence was the sole cause of the injuries. Since most events are the result of a complex set of causes, there will frequently be non-tortious causes contributing to the injury. Defendants could frequently and easily identify non-tortious contributing causes, so plaintiffs would rarely receive full compensation even after proving that the defendant caused the injury. This would be contrary to established principles and the essential purpose of tort law, which is to restore the plaintiff to the position he or she would have enjoyed but for the negligence of the defendant.
 The Supreme Court of Canada re-affirmed these principles in Clements v. Clements, 2012 SCC 32, 346 D.L.R. (4th) 577. Applying these principles to this case, I am satisfied, based on all of the evidence, that the plaintiff suffered soft tissue injuries to her neck, shoulders, mid- and upper-back which were caused by the accident. These injuries have resulted in chronic pain as described in detail in Dr. Armstrong’s report. Ms. Clark has suffered headaches, emotional and cognitive distress and sleep disorder as a result of the persistent pain. Overall I found Dr. Armstrong’s report and evidence of great assistance in assessing the impact of the accident on Ms. Clark’s life.
If we gave the reasons to a first year law student, after he or she has taken torts, could he or she identify what test for factual causation the trial judge applied? He or she would know what test the judge was supposed to have applied, but that isn’t my question.
Could a member of the public reading the decision understand why the judge made the decision she did, beyond understanding that the judge believed the plaintiff and preferred the evidence of the plaintiff’s physicians?
We – meaning the part of the profession who practices in the area – can make informed assumptions as to the principles the trial judge must have had in mind, and then decide from the evidence recounted in the reasons, but is that enough?
If we assume (as we are required to, absent some indication to the contrary) that the judge knew the applicable law, that the evidence was as the trial judge recounts, that it was admissible, and that the trial judge did not make any relevant errors accepting it – something none of us can decide without reading the transcript – then the decision is correct in law (meaning that it cannot be successfully appealed).

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The Complainant is Comerica Incorporated, Dallas, Texas, United States of America, represented by Bodman PLC, United States of America.
The Respondent is Zhichao Yang of Hefei, Anhui, China / Whois Privacy Protection Service, Inc., Bellevue, Washington, United States of America.
The disputed domain names <comericaconvenientcard.com>, <comericaconviencecard.com> and <comericaconviniencecard.com> (the “Domain Names”) are registered with eNom (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 2, 2013. On July 3, 2013, the Center transmitted a request by email to the Registrar asking for registrar verification in connection with the Domain Names. On July 3, 2013, the Registrar transmitted its verification response to the Center by email, disclosing the registrant and the contact information for the Domain Names which differed from the named Respondent and the contact information in the Complaint. The Center sent an email to the Complainant on July 5, 2013 providing it with the information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on July 10, 2013.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 11, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was July 31, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August, 5, 2013.
The Center appointed Geert Glas as the sole panelist in this matter on August 27, 2013. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant is a financial services company headquartered in Dallas, Texas. It is among the 30 largest banking companies in the United States, with branches in Arizona, California, Florida and Michigan.
The Complainant is the owner of numerous United States registrations for its trademarks and service marks, including the service mark COMERICA CONVENIENCE CARD for banking and financial services.
The Domain Names were registered on March 1, 2013. According to the evidence submitted by the Complainant, the Domain Names lead to a parked pay-per-click site featuring sponsored links to websites of providers of financial services.
(i) the Domain Names are identical or confusingly similar to a service mark in which the Complainant has rights.
The Complainant contends that the Domain Names are nearly identical to its service mark COMERICA CONVENIENCE CARD, except that, in place of the word “convenience”, one Domain Name uses the word “convenient”, another the word “convinience”, and yet another the misspelled word “convience”. These differences are not sufficient to distinguish the Domain Names from the Complainant’s service mark registered on January 15, 2013, with a first use in commerce in 2011.
The Complainant contends that it has never licensed or authorized the Respondent to use the COMERICA CONVENIENCE CARD service mark.
Furthermore, the Respondent is not using the Domain Names in connection with a bona fide offering of goods and services. It has intentionally chosen the Domain Names in order to generate traffic and income through a parking page featuring (sponsored) links to financial services which are similar to the Complainant’s financial services.
- the Respondent has engaged in a pattern of registering domain names that bear striking resemblance to famous marks, and has been the respondent in at least three UDPR cases where the National Arbitration Forum has ordered the transfer or cancellation of the disputed domain name.
The Complainant has demonstrated that it is the owner of the service mark COMERICA CONVENIENCE CARD for banking and financial services.
The Domain Names differ from the Complainant’s service mark only by substitution of the letters “ce” (convenience) by the letter “t” (convenient) and by misspelling “convenience” as, respectively, “convinience and “convience”. These minor alterations cannot prevent a finding of confusing similarity between the service mark and the Domain Names (see, e.g., Red Bull GmbH v. Grey Design, WIPO Case No. D2001-1035; Dow Jones & Co. v. Powerclick, Inc., WIPO Case No. D2000-1259; Nationstar Mortgage LLC v. Zhichao Yang, NAF Claim No. FA 1450754).
Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, the consensus view is that, once the complainant has made a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with appropriate allegations or produce evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the policy (see, e.g., Document Technologies Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270 and the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”, paragraph 2.1).
The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Names.
Indeed, based on the evidence submitted by the Complainant, the Panel finds that there is no evidence that the Respondent has been commonly known by the Domain Names or has been authorized to use the Complainant’s service mark.
Moreover, previous UDRP panel decisions have confirmed that using a domain name to generate traffic to a pay-per-click parking website, thereby diluting or tarnishing the reputation of a complainant's trademark or service mark, cannot be considered a bona fide offering of goods and services, or a noncommercial or fair use of the domain name (see, e.g., Florida Department of Management Services v. Anthony Gorss, WIPO Case No. D2009-1194; Telekom AG v. Dong Wong, WIPO Case No. D2005-0819; and The Gap, Inc. v. Deng Youqian, WIPO Case No. D2009-0113).
The Respondent has failed to respond to the Complaint and has therefore failed to come forward with any allegation or provide any evidence of its rights or legitimate interests in the Domain Names.
Based on the evidence provided by the Complainant, the Panel finds that the second element under paragraph 4(a)(ii) has been established.
Because of the phonetic and visual similarity between the Domain Names and the Complainant’s service mark, the Panel finds it unlikely that the Respondent would not have had knowledge of the Complainant’s rights in this service mark. Indeed, it is well-settled case law that the practice of typosquatting, may in itself be evidence of a bad faith registration of a domain name (see, e.g., Longs Drug Stores Cal, Inc. v. Shep Dog, WIPO Case No. D2004-1069; Wal-Mart Stores, Inc. v. Longo, WIPO Case No. D2004-1034).
Moreover, the Respondent has engaged in a pattern of registering domain names that bear a resemblance to famous and/or well-known marks, and has been involved in several UDPR cases where the National Arbitration Forum has ordered the transfer or cancellation of the disputed domain name (see, e.g., Nationstar Mortgage LLC v. Zhichao Yang, NAF Claim No. FA 1450754; Capital One Financial Corp v. Zhichao Yang, NAF Claim No. 1473336; Wells Fargo & Company v. Zhichao Yang, NAF Claim No. 1477756). The fact that the Respondent has a history of registering domain names that closely resemble famous and/or well-known marks only strengthens the inference of bad faith (see, e.g., MouseSavers, Inc. v. Tsung, WIPO Case No. D2004-1034).
As the Domain Names lead to a pay-per-click website, the Panel finds that the Respondent attempts to attract Internet users for commercial gain by creating a likelihood of confusion with the Complainant's service mark. This finding is corroborated by the fact that this website offers sponsored links to the websites of financial institutions which constitute competitors of the Complainant.
The Panel concurs with the understanding of several other UDRP panels that the use of a domain name to direct traffic to a website that offers sponsored links to other (competing) websites is evidence of bad faith (see Volvo Trademark Holding AB v. Unais, Inc., WIPO Case No. D2005-0556). It does not matter whether the respondent is the beneficiary of these commercial gains or whether the commercial gains accrue elsewhere. It is sufficient that a third party stands to reap the profits of the respondent's wrongful conduct (see Villeroy & Boch AG v. Mario Pingerna, WIPO Case No. D2007-1912).
For the above reasons and in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names <comericaconvenientcard.com>, <comericaconviencecard.com> and <comericaconviniencecard.com> be transferred to the Complainant.

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text:
The opportunity was considered of transformation and ordering of a structure in a process of self-organizing in film composites with addition of nanosized particles. The opportunity was shown of generation ordered cells-holes in films generated on fluoroplastic backings with addition of nanoparticles of boehmite (AlOOH) in polymeric suspensions of sodiym-carboxymethylcellulose with a plasticiser of glycerin and titanium dioxide’s powder. Morphological features of obtained vesicular structures were explored using raster-electron microscopy technique. Values of surface tension were determined using ring method DuNouy in filled suspensions and an influence of addition of boehmite on it’s size was investigated. Values of a contact angle, value of work of adhesion, cohesion and energy of wetting in suspensions were calculated. Features of self-organizing were explored in composite systems with microparticles of titanium dioxide and nanoparticles of boehmite. The value of selective Shannon entropy was used for estimation of degree of order. Correlation of minimum variability of Shannon entropy was determined with generation of homogeneous cells by comparison. Selective Shannon entropy assumes a minimum value Н=1,173 and a value of surface tension σ = 78,1 mn/m. Combinations of correlations of components were determined consisting of system with nanosized boehmites’ particles and a titanium dioxide filling material, which enables generation homogeneous pores by by comparison with radius ≈300 µm: С sodiym-carboxymethylcellulose=100,00 g; С glycerin =3,25 g; С filling material =2,50g; Сboehmite=0,15 g. The simple approach by comparison was proposed wich allow to generate vesicular composite materials with low temperature 50-60 degrees. It is possible to use obtained materials as reinforcing element, sorbing agent, abrasive materials, backings for upsetting of contact substance.
1. D. V. Novikov, A. N. Krasovsky. Fractal grid of nanoglobule of gelatin. Solid state physics. 54 (11), 2183-2186 (2012). (in Russian) [Д. В. Новиков, А. Н. Красовский. Физика твердого тела. 54 (11), 2183-2186 (2012).].
2. D. V. Novikov, I. S. Kurindin, V. Bukoˇsek, G. K. Elyashevich. Texture of surface and percolation effects in microcellular directed films of polyolefin. Solid state physics. 54 (11), 2176-2182 (2012). (in Russian) [Д. В. Новиков, И. С. Курындин, V. Bukoˇsek, Г. К. Ельяшевич. Физика твердого тела. 54 (11), 2176-2182 (2012).].
3. N. M. Antonova, O. S. Ovchinnikov, A. P. Babichev. Research of influence of nanoporticles of al and nanofibres of boehmite on generation cells in composite materials based of sodium carboxymethylcellulose polymer. Nanoengineering. 3, 17-22 (2014). (in Russian) [Н. М. Антонова, О. С. Овчинников, А. П. Бабичев. Наноинженерия. 3, 17-22 (2014).].
4. N. M. Antonova, A. P. Babichev, V. Yu. Dorofeev. Regularities of a formation of the structure of al-containing nanocomposites upon Interaction of ASD-6 Powder with Polymer Suspension. Protection of Metals and Physical Chemistry of Surfaces. 49 (7), 868-872 (2013).
5. N. M. Antonova. Electron microscope investigation of aluminium-comprising nanoparticles. World Journal of Engineering. 11 (3), 209-212 (2014).
6. Laboratory works and tasks on colloid chemistry, ed. by J. G. Frolov, A. S. Grodsky. Moscow Chemistry (1986) 216 p. (in Russian) [Ю. Г. Фролов. Курс коллоидной химии. Поверхностные явления и дисперсные системы. М. Химия (1988) 464 с.].
7. A. A. Berlin, V. E. Basin. Basis of adhesion of polymers. Moscow Chemistry (1969) p. 319. (in Russian) [А. А. Берлин, В. Е. Басин. Основы адгезии полимеров. М. Химия (1969) 319 с.].
8. A. D. Zimon. Adhesion of liquids and moistenings Moscow. Chemistry (1974) 416 p. (in Russian) [А. Д. Зимон. Адгезия жидкости и смачивание. М. Химия, (1974) 416 с.].
9. J. G. Frolov. Course of colloid chemistry. Surface phenomena and disperse systems. Moscow. Chemistry (1988) 464 р. (in Russian) [Д. Г. Фролов. Курс коллоидной химии. Поверхностные явления и дисперсные системы. Москва. Химия, (1988) 464 с.].
10. O. A. Raevsky, A. F. Solotnov, V. P. Solovyev. Electron-donating and electrophilic functions of физиологически physiological acting and model compounds. / Journal of common chemistry. 57 (6), 1241-1248 (1987). (in Russian) [О. А. Раевский, А. Ф. Солотнов, В. П. Соловьев. Электронодонорные и электроноакцепторные функции физиологически активных и модельных соединений. Журнал общей хими. 157 (6), 1241-1248 (1987).].
11. О. Zaiman Models of chaos. Theoretical physics of homogeneous disordered systems. Moscow World (1982) 529 р. (in Russian) [Дж. Займан. Модели беспорядка. Теоретическая физика однородно неупорядоченных систем. М. Мир (1982) 529 с.].
12. D. V. Novikov, A. N. Krasovsky. Correlation of density-density on gelatin surface. Solid state physics. 54 (8), 1582-1585 (2012). (in Russian) [Д. В. Новиков, А. Н. Красовский. Корреляции плотность-плотность на поверхности желатина. Физика твердого тела. 54 (8), 1582-1585 (2012).].
13. O. V. Chumak. Entropy and fractals in data analysis. Moscow. Izhevsk. Research center Regular and chaotic dynamics (2011) 164 р. (in Russian) [О. В. Чумак. Энтропии и фракталы в анализе данных. М. Ижевск НИЦ Регулярная и хаотическая динамика. (2011) 164 с.].
14. A. D. Zimon, A. N. Pavlov. Colloid chemistry of nanoparticles. Moscow. Scientific world (2012) 224 р. (in Russian) [А. Д. Зимон, А. Н. Павлов. Коллоидная химия наночастиц. М. Научный мир (2012) 224 с.].

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While Some Parents May Not Agree to Pay the Cost of Their Child’s Law Degree, Maybe the Government Will?
Earlier this week, United States Tax Court Judge Richard T. Morrison ruled, in the case of Emmanuel A. Santos v. Commissioner, T.C. Memo 2016-100 (May 17, 2016), that the government will not pay the cost of a taxpayer obtaining a law degree.
This is a pro se case. While the record was not very clear, the taxpayer, Emmanuel A. Santos, claimed he earned a degree in accounting from Indiana University in 1988. Thereafter, he began a career as a tax return preparer. In 1996, he obtained a master’s degree in taxation. Eventually, Mr. Santos expanded his tax return preparer practice to include accounting and financial planning services.
Mr. Santos attended a law school in California, graduating in 2011. He was admitted to the California Bar Association and the United States Tax Court in 2014. In 2015, Mr. Santos and his father started Santos & Santos Law Offices LLP, a law firm offering attorney, tax planning, accounting and financial planning services.
On his 2010 federal income tax return, Mr. Santos deducted, in addition to various expenses, including laundry costs, $20,275 for law school tuition and fees. On audit, many of these deductions were denied.
After likely losing at the IRS Office of Appeals, Mr. Santos headed to the United States Tax Court. The sole issue in dispute was whether the deduction of $20,275 for law school tuition and fees was allowable under Code § 162 as an ordinary and necessary business expense.
Treas. Reg. § 1.162-5(a) is clear—educational expenses that either: (i) maintain or improve skills required by the taxpayer in his or her current employment; or (ii) are required by the taxpayer’s employer (or applicable law) as a condition to continued employment or rate of compensation, are deductible. On the other hand, certain types of educational expenses are expressly nondeductible, including expenses for education that qualify the taxpayer for a new trade or business. Treas. Reg. § 1.162-5(b)(1) provides examples of these nondeductible educational expenses. One of the examples set forth in the regulations specifically references a taxpayer practicing accounting who pursues a law degree. The costs of attending law school are nondeductible because the course of study qualifies the taxpayer for a new trade or business. The law degree is not required to continue practicing accounting.
Judge Morrison cited numerous cases where the courts have held, consistent with the Treasury Regulations, a law degree qualifies a taxpayer for a new trade or business, and thus the cost of the degree is a nondeductible educational expense. This is true, even if the degree improves the taxpayer’s accounting and tax skills, and the taxpayer remains practicing accounting (i.e., never practices law). See e.g., Taubman v. Commissioner, 60 T.C. 814 (1973).
Despite the clear language of the Treasury Regulations and the numerous cases supporting the government’s position, Mr. Santos brought his case to the United States Tax Court. He appears to have argued that the holdings in the cases where the court relied upon the Treasury Regulations are incorrect because the regulations are invalid. Mr. Santos’s argument, at first blush, appeared intriguing to me. By gosh, I recently won an Oregon Tax Court case invalidating a long-existing administrative rule (which is akin to Treasury Regulations).
Shortly after Treasury promulgated Treasury Regulation § 1.162-5, the United States Tax Court ruled that it was valid. The Ninth Circuit Court of Appeals affirmed the tax court’s conclusion. See Weiszmann v. Commissioner, 52 T.C. 1106 (1969), aff’d 443 F.2d 29 (9th Cir. 1971).
Mr. Santos argued that the court in Weiszmann employed the wrong standard to examine the validity of the regulation at issue. Unfortunately for him, the tax court quickly dismissed the argument without much discussion. Then, Mr. Santos asserted that Treasury failed to adequately respond to public comments before finalizing the regulations at issue, thus making the regulations invalid. Unfortunately, Mr. Santos did not raise that issue until after the trial had concluded. Consequently, the trial court record contained no evidence upon which the tax court could even evaluate his assertion. While his argument was creative and certainly intriguing, it never gained any traction. If he had offered evidence on the issue at trial, the tax court’s opinion would have been a much more interesting read. Who knows if any evidence exists to support his assertion of invalidity – Mr. Santos lost!
The clear take-away from this case is that: educational expenses are generally only deductible if they are incurred to maintain or improve the skills required for current employment or to retain current employment or current compensation. The costs of education required to prepare for a new trade or business are generally nondeductible.
The outcome of these cases is generally dependent upon the facts and circumstances. For example, if Mr. Santos had been a practicing tax lawyer (i.e., had already obtained his J.D. degree, had already passed the bar examination and was practicing as a tax lawyer), the costs of obtaining his LL.M. (taxation) may have been deductible.
Many nuances exist in this area of tax law. Consequently, careful analysis is required.


VALLEY GREEN GROW, INC., CHARLTON ORCHARDS GROUP, LLC, NATHAN R. BENJAMIN, JR., and CATHERINE L. BENJAMIN v. TOWN OF CHARLTON and JOHN P. McGRATH, DEBORAH B. NOBLE, KAREN A. SPIEWAK, DAVID M. SINGER, JOSEPH J. SZAFAROWICZ, as they are Members of the Board of Selectmen of the Town of Charlton. GERARD F. RUSSELL, Defendant-Intervenor.
MEMORANDUM AND ORDER ALLOWING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT.
On November 4, 2016, the voters of the Commonwealth voted YES to Question 4, authorizing the legalization, regulation and taxation of recreational cannabis in the Commonwealth of Massachusetts. Among those voting YES were a majority of the voters of the Town of Charlton (Town). After the ensuing enactment of G.L. c. 94G, regulating recreational marijuana in Massachusetts, the plaintiff Valley Green Grow, Inc. (VGG) entered an agreement with plaintiffs Charlton Orchard Groups, LLC (COG) and Nathan R. Benjamin, Jr. and Catherine Benjamin to purchase their farm in Charlton. VGG wants to build a 1,000,000 square foot indoor marijuana growing and processing facility on the property, consisting of 860,000 square feet of greenhouses, a 130,000 square foot post-harvest processing facility, and 10,000 square foot cogeneration facility. VGG approached the Town in the spring of 2018, filed a preliminary subdivision plan, and began negotiations for a development agreement and a host community agreement. At its May 2018 annual town meeting, the Town adopted by a two-thirds vote Warrant Article 27, amending the Charlton Zoning Bylaw (zoning bylaw) to allow certain recreational marijuana uses in the agricultural, community business, industrial and business enterprise park use districts by special permit. A group of citizens including intervenor Gerard F. Russell and other neighbors of the property, unhappy with the zoning amendment, brought two warrant articles to a special town meeting in August 2018. Warrant Article 1 sought to rescind the previously adopted amendment to the zoning bylaw that allowed marijuana uses. Warrant Article 2 sought to adopt a general bylaw to ban all non-medical cannabis uses within the Town. While a majority voted for Warrant Article 1, it failed to obtain the two-thirds majority necessary for an amendment to the zoning bylaw. Warrant Article 2 passed by a majority vote.
On September 21, 2018, VGG filed its complaint, naming as defendants the Town and John P. McGrath, Deborah B. Noble, Karen A. Spiewak, David M. Singer, and Joseph J. Szafarowicz as Members of the Board of Selectmen of the Town of Charlton (collectively, the Board). On October 9, 2018, Gerard F. Russell filed his Motion to Intervene as a Defendant, and on October 15, 2018, his Amended Brief and Affidavit in support of his Motion to Intervene. On October 30, 2018, Russell filed his Amended Answer of Gerard F. Russell, and on October 31, 2018, the Town and the Board filed their Answer. On November 5, 2018, VGG filed its Opposition to Gerard Russell's Motion to Intervene.
The court held the case management conference on November 6, 2018, where it took the Motion to Intervene under advisement and advised VGG to amend its complaint to add necessary plaintiffs. On November 8, 2018, the court issued its Order Allowing Motion of Gerard F. Russell to Intervene as a Defendant, and VGG filed its Assented-To Motion for Leave to File First Amended Complaint to add as plaintiffs COG and the Benjamins. The court allowed the motion that same day and deemed the First Amended Complaint (Complaint or Compl.) filed. On November 19, 2018, Russell filed his Answer to Plaintiffs' Amended Complaint and Cross-Complaint, bringing a cross-complaint against the Town (Russell Ans.). On December 17, 2018, the Town filed its Answer to Intervenor's Cross-Claim. Plaintiffs' Motion for Leave to Intervene as Defendants in Intervenor Gerard Russell's Cross Claim Under G.L. c. 240 Sec. 14A Against the Town of Charlton was filed on February 1, 2019, and allowed without hearing on February 5, 2019.
On November 16, 2018, VGG, COG, and the Benjamins (plaintiffs) filed Plaintiffs' Motion for Summary Judgment (Summary Judgment Motion), Memorandum of Law in Support of Plaintiffs' Motion for Summary Judgment, Plaintiffs' Statement of Undisputed Material Facts in Support of Their Motion for Summary Judgment (Pl. SOF), their Appendix of Exhibits in Support of Plaintiffs' Motion for Summary Judgment (Pl. Exh.), and the Affidavit of Jeffrey Goldstein in Support of Plaintiffs' Motion for Summary Judgment (Goldstein Aff.).
On December 18, 2018, Russell filed (1) Defendant Gerard F. Russell's Opposition to Plaintiffs' Motion for Summary Judgment, (2) the Affidavit of Defendant Gerard F. Russell (Russell Aff.), (3), Notice to Attorney General Pursuant to G.L. c. 231A, § 8 and Mass. R. Civ. P. 24(d), (4) Russell's Document Appendix (Russell App.), (5) Defendant Russell's Response to Plaintiffs' Statement of Undisputed Material Facts in Support of His Opposition to Plaintiffs' Motion for Summary Judgment (Russell SOF Resp.), and (6) Defendant Russell's Statement of Undisputed Material Facts In Support of His Opposition to Plaintiffs' Motion for Summary Judgment (Russell SOF).
On December 10, 2018, Michael Pill's Motion for Leave to (1) File Amicus Curiae Brief and (2) Participate in Hearing on Plaintiffs' Summary Judgment as allowed in part and denied in part, allowing the filing of an amicus brief but denying leave to participate in the hearing, and attorney Pill's amicus brief was accepted for filing. On December 27, 2018, New Jersey attorney David G. Evans was admitted pro hac vice on the motion of attorney Pill, his motion to file an amicus brief was allowed, and his amicus brief on behalf of his clients was accepted for filing. The Motion of Benjamin E. Zehnder, Esq. for Leave to File an Amicus Curiae Brief in Support of Plaintiff's Motion for Summary Judgment was allowed on December 27, 2018, and his amicus brief on behalf of his clients was accepted for filing.
On January 2, 2019, the plaintiffs filed (1) Plaintiffs' Reply to Defendant Russell's Opposition to Plaintiffs' Motion for Summary Judgment, (2) Plaintiffs' Response to Defendant Russell's Statement of Material Facts (Pl. SOF Resp.), and (3) Plaintiffs' Response to Brief of Amicus Curiae Michael Pill. On January 4, 2019, the court heard the Summary Judgment Motion, and took it under advisement. This Memorandum and Order follows.
1. VGG is a Massachusetts corporation with a principal place of business at 1600 Osgood Street, North Andover, Massachusetts. Pl. SOF ¶ 1; Russell SOF Resp. ¶ 1.
2. COG is a Massachusetts company and record owner in fee of property at 44 Old Worcester Road, Charlton (COG property). Pl. SOF ¶ 2; Russell SOF Resp. ¶ 2; Pl. Exhs. 2-4.
3. The Benjamins are individuals and record title owners in fee of property located at 7 L Turner Road, Charlton (Benjamin property). Pl. SOF ¶¶ 3-4; Russell SOF Resp. ¶¶ 3-4; Pl. Exhs. 3-4. The COG property and the Benjamin property are hereinafter referred to as the "site."
4. On November 4, 2016, the citizens of Charlton voted YES to Question 4, authorizing the legalization, regulation and taxation of recreational cannabis in the Commonwealth of Massachusetts. Pl. SOF ¶ 5; Russell SOF Resp. ¶ 5; Pl. Exh. 5.
c. 10,000 square foot Enclosed Cogeneration Facility (~18 MW) and supporting equipment.
Pl. SOF ¶ 7; Russell SOF Resp. ¶ 7; Russell Exhs. 8, 9.
7. In March 2018, VGG sought an advisory determination from Curtis Meskus, the Town's zoning enforcement officer and building inspector, addressing whether VGG's proposed project would be permitted as of right in the Town agricultural zoning district. Opponents to the Project have argued that cannabis uses cannot be approved as agricultural uses. Pl. SOF ¶ 8; Russell SOF Resp. ¶ 8; Pl. Exh. 6.
8. Mr. Meskus responded in a March 20, 2018, email, in an opinion that was "advisory only," that the project "would be allowed as of right." Pl. Exh. 6.
9. On April 25, 2018, recognizing that the Town was contemplating adopting a zoning bylaw to authorize and regulate recreational cannabis uses within the Town, VGG engaged a civil engineer and filed a preliminary subdivision plan for approval. VGG's subdivision plan submission triggered a zoning freeze for the Property, pursuant to G.L. 40A, § 6. Pl. SOF ¶ 11; Russell SOF Resp. ¶ 11.
10. At that time, § 200-3.2.B of the Charlton Zoning Bylaw (zoning bylaw) did not explicitly list "marijuana" as part of any principal use. It did provide that "[i]ndoor commercial horticulture/floriculture establishments (e.g., greenhouses)" are permitted as of right in every zoning district. Russell App. Exh. 2.
11. During the spring of 2018, VGG negotiated with Robin Craver, Town Manager for the Town of Charlton, with respect to a Development Agreement and Host Community Agreement for the project and related activities. Pl. SOF ¶ 12; Russell SOF Resp. ¶ 12.
12. At its May 15, 2018 public meeting, the Board of Selectmen voted to approve the proposed Development Agreement and Host Community Agreement with VGG. Pl. Exh. 8.
13. At its annual town meeting on May 21, 2018, the Town adopted by more than a two-thirds vote Warrant Article 27, amending the zoning bylaw to allow certain recreational marijuana uses in the agricultural, community business, industrial and business enterprise park use districts by special permit (Warrant Article 27). Pl. SOF ¶ 14; Russell SOF Resp. ¶ 14; Pl. Exh. 9.
14. After the VGG Development Agreement and Host Community Agreement were approved by the Board of Selectmen, a group of abutters objected to the manner in which the meeting agenda items were noticed, claiming that it was not clearly identified on the agenda for the hearing at which it was approved. Certain residents filed complaints challenging the zoning amendment process and actions of Town officials. Pl. SOF ¶ 15; Russell' SOF Resp. ¶ 15; Pl. Exh. 10.
15. As a result, the Board of Selectmen suspended any further action on the VGG Development and Host Community Agreements, rescheduled a public hearing, and asked VGG to attend the public meeting to describe the Project and answer questions of the public. VGG agreed to do so and attended a public meeting held on May 29, 2018, at which more than 400 residents and officials were in attendance. Pl. SOF ¶ 16; Russell SOF Resp. ¶ 16; Pl. Exh. 10; Goldstein Aff. at ¶¶ 10 and 11.
16. At its June 19, 2018 public meeting, the Board of Selectmen voted to reaffirm and ratify its prior vote in favor the Development Agreement and Host Community Agreement. Pl. App. Exh. 10.
17. At a special town meeting held on August 1, 2018, citizens of Charlton (including Russell and other abutters to the site) advanced two warrant articles: (1) Warrant Article 1, seeking to rescind the previously adopted zoning bylaw amendment, Warrant Article 27; and (2) Warrant Article 2, seeking to adopt a general bylaw to ban all non-medical cannabis uses within the Town. Warrant Article 1 failed to obtain the necessary two-thirds majority vote and therefore failed. Warrant Article 2 passed by a majority vote. Pl. SOF ¶ 18; Russell SOF Resp. ¶ 18; Pl. Exh. 11.
Citizen Petition-Prohibition of Non-Medical Marijuana-General Bylaw. To see if the Town will vote to amend the Town's General Bylaw by adding a new Chapter and Section that would provide as follows, and further to amend the Table of Contents to add said Chapter and Section.
Consistent with G.L. c.94G, § 3(a)(2), all types of non-medical "marijuana establishments" as defined in G.L. c.94G, §1, including marijuana cultivators, independent testing laboratory, marijuana product manufacturers, marijuana retailers or any other types of licensed marijuana-related businesses, shall be prohibited within the Town. Or take any action relative thereto.
19. At its regular Board meeting on August 28, 2018, the Board of Selectmen voted to put Warrant Article 2 on the ballot at the Annual Town Meeting election in May 2019. Pl. SOF ¶ 21; Russell SOF Resp. ¶ 21; Pl. Exh. 13.
20. On September 13, 2018, the Office of the Attorney General issued a letter approving the zoning bylaw amendments Charlton adopted under Warrant Article 27, with the exception of limited language. In the letter, the Attorney General disapproved of certain text added to the Warrant Article during town meeting, which would prohibit marijuana establishments from storing or holding money during non-business hours, reasoning that such language posed an unreasonable and impracticable business risk to operators. Pl. SOF ¶ 24; Russell SOF Resp. ¶ 24; Pl. Exh. 16.
." The Attorney General's Office determined that the Town's vote had a "legitimate planning purpose" and was not "Arbitrary and unreasonable, or substantially unrelated to the public health, safety morals, or general welfare," but was rather a "classic exercise of the Town's zoning powers" Pl. SOF ¶ 25; Russell SOF Resp. ¶ 25; Pl. Exh. 16.
22. On September 13, 2018, the Attorney General's Office issued a letter approving the Town's proposed Warrant Article 2, imposing the general by-law ban, with the proviso that the by-law will not have effect until it is submitted for approval at a municipal election as required under chapter 94G. Pl. Exh. 17; Pl. SOF ¶ 26; Russell SOF Resp. ¶ 26.
23. The Attorney General concluded that "[t]he statute governing the Attorney General's by-law review does not authorize a disapproval based upon a by-law's alleged conflict with other bylaws of the town. See G.L. ch. 40, § 32." Pl. SOF ¶ 29; Russell SOF Resp. ¶ 29; Pl. Exh. 17.
24. In accordance with the terms and conditions of the Development Agreement and Host Community Agreement, VGG must make a $500,000.00 deposit 30 days after the issuance of the Host Community Agreement. The Host Community Agreement was issued on August 14, 2018 and, therefore, the $500,000.00 payment would have been due on September 13, 2018. Pl. SOF ¶ 35; Russell SOF Resp. ¶ 35; Goldstein Aff. at ¶ 16.
25. By letter dated September 11, 2018, VGG wrote to the Town advising it of VGG's intention to file this action and requesting the Town to extend the date by which the $500,000 payment must be paid until such time as this court provides guidance on the legal issues presented herein. Pl. SOF ¶ 36; Russell SOF Resp. ¶ 36; Pl. Exh. 18.
26. The Town agreed to extend the due date of such payment pending the outcome of this action. Pl. SOF ¶ 37; Russell SOF Resp. ¶ 37; Goldstein Aff. ¶ 16.
27. At the October 15, 2018, special town meeting, Warrant Article 11 was advanced, seeking to amend the portions of the zoning bylaw enacted in Warrant Article 27 by striking marijuana establishments as special permit uses in the A, CB, and BEP districts, leaving them as special permit uses only in the IG district. Although the record does not reflect this, the parties report that Warrant Article 11 passed by a two-thirds majority vote. Russell Exh. ¶ 7.
The Complaint has two counts. Count I is a petition for judicial determination of the validity of Warrant Article 2, brought pursuant to G.L. c. 240, § 14A. Count II seeks a declaratory judgment, pursuant to G.L. c. 231A, § 1, et seq., that Warrant Article 2 is invalid. Both counts and the Summary Judgment Motion present the same issue: Was Warrant Article 2 an attempted annulment of the zoning bylaw, as amended by Warrant Article 27, and therefore invalid because it was enacted as a general bylaw pursuant to G.L. c. 40, § 21, and not as a zoning bylaw following the process required under G.L. c. 40A, § 5? Or, rather, was Warrant Article 2 a valid exercise of the Town's police power and authority under G.L. c. 94G, § 3(a), to regulate recreational marijuana use, merely supplementing the zoning bylaw as amended by Warrant Article 27?
The owner of a freehold estate in possession in land may bring a petition in the land court against a city or town wherein such land is situated, which shall not be open to objection on the ground that a mere judgment, order or decree is sought, for determination as to the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A or under any special law relating to zoning, so called, which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land, . . . or for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement or development of such land.
G.L. c. 240, § 14A. The Land Court has exclusive jurisdiction over actions brought under § 14A.
Id.; G.L. c. 185, § 1(j ½).
It is undisputed that COG and the Benjamins are the respective owners in possession of the COG and Turner properties, which together constitute the site that is the subject of this action. It is further undisputed that they are seeking a determination as to the validity of Warrant Article 2 as it affects the use of the site for the project. It is a more difficult question as to whether COG and the Benjamins seek a determination as to the validity of a zoning bylaw. Warrant Article 2 is explicitly not a zoning bylaw; it was enacted as a general bylaw. It would therefore seem that Count I does not seek to "resolve doubts relating to by-law restrictions or the requirements of a zoning ordinance." Whitinsville Retirement Soc'y, Inc. v. Northbridge, 394 Mass. 757 , 762-763 (1985) (emphasis supplied). To dismiss Count I on this ground, however, would decide the very issue that Count I seeks to resolve: whether Warrant Article 2 acted, in effect, as a zoning bylaw amendment, and is invalid because it was not enacted pursuant to G.L. c. 40A, § 5. The court sees little distinction between determining the validity of a bylaw enacted under c. 40A and the validity of a bylaw that the plaintiffs claim should have been enacted under c. 40A. COG and the Benjamins have stated a claim under § 14A in Count I.
VGG, COG, and the Benjamins have also stated a claim for a declaratory judgment in Count II. Under the familiar standard, "the land court . . . within [its] . . . jurisdiction, may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby . . . in any case in which an actual controversy has arisen and is specifically set forth in the pleadings." G.L. c. 231A, § 1. For the same reasons that COG and the Benjamins have stated a claim under §14A, the declaration sought by the plaintiffsthat Warrant Article 2 invalidly interferes with the zoning bylaw as amended by Warrant Article 27is within the jurisdiction of the Land Court. "A landowner who seeks to challenge the validity of a zoning by- law where there is an actual controversy may bring a proceeding in the Land Court under G.L.c. 231A or under G.L. c. 240, § 14A." Mantoni v. Board of Appeals of Harwich, 34 Mass. App. Ct. 273 , 275 (1993); Gamache v. Town of Acushnet, 14 Mass. App. Ct. 215 , 222-223 (1982).
VGG, COG, and the Benjamins have also demonstrated that an actual controversy has arisen between them, on the one hand, and the Town and Russell on the other, regarding whether VGG will be able to undertake the project on the site, or whether Warrant Article 2 bars the project. "The requirement that there be an 'actual controversy' should be construed liberally." Peterborough Oil Co. v. Department of Envtl. Protection, 474 Mass. 443 , 445 (2016), citing Gay & Lesbian Advocates & Defenders v. Attorney Gen., 436 Mass. 132 , 134 (2002). A declaratory judgment may be sought to interpret the validity of a municipal bylaw. G.L. c. 231A, § 2; St. George Greek Orthodox Cathedral of W. Mass., Inc. v. Fire Dep't of Springfield, 462 Mass. 120 , 124 (2012). It is not necessary that a violation of a bylaw have already occurred for there to be an actual controversy as to the validity of the bylaw. See G.L. c. 231A, § 1 (declaratory judgment action may be brought "before or after a breach or violation . . . has occurred"). Rather, an actual controversy exists if the plaintiff alleges and shows that enforcement of the challenged bylaw "has caused, or will cause, injury to the plaintiff." Entergy Nuclear Generation Co. v. Department of Envtl. Protection, 459 Mass. 319 , 324 (2011). Warrant Article 2, if valid, would bar VGG from undertaking the project. This is a sufficient demonstration of injury to VGG resulting from the bylaw. Russell's argument that there is not yet any actual controversy because VGG has not yet made a formal application rings hollow given that Russell was one of the sponsors of Warrant Article 2 and sought to intervene in this case to ensure that the validity of Warrant Article 2 was fully defended. Further, the deadline by which VGG is obligated pay $500,000 to the Town under the Development Agreement and Host Community Agreement has been extended pending the outcome of this action and VGG's rights and obligations under those agreements are, to some extent, implicated by the resolution of this controversy.
Analysis. The court turns now to the question raised by the plaintiffs. The interplay of zoning and general bylaws and the circumstances under which a general bylaw impermissibly intrudes upon a subject regulated by a zoning bylaw are addressed in three major cases: Rayco Inv. Corp. v. Board of Selectmen of Raynham, 368 Mass. 385 (1975) (Rayco); Lovequist v. Conservation Comm'n of Dennis, 379 Mass. 7 (1979); and Spenlinhauer v. Town of Barnstable, 80 Mass. App. Ct. 134 (2011).
In Rayco, the Supreme Judicial Court (SJC) considered the validity of a bylaw of the Town of Raynham which purported to restrict the number of trailer parks in the town. Rayco, 368 Mass. at 386-387. The bylaw provided that "[t]he maximum number of outstanding trailer park licenses issued under G.L. Chapter 140, shall not exceed at any time the number of said licenses issued by the Board of Health, and in conformity with applicable Zoning By-Laws, as of October 1, 1971." Id. at 386. In the Superior Court the plaintiff sought a declaration under G.L. c. 231A of the effect of the bylaw on the plaintiff's right to operate a mobile home park on property in the town. Id. The record before the SJC did not indicate whether the disputed bylaw was enacted pursuant to the procedures for a zoning bylaw or a general bylaw and the court considered its applicability under both circumstances. Id. at 388. The Court, for reasons not relevant here, found that the plaintiff was not subject to the bylaw if it was enacted as a zoning bylaw and moved on to the bylaw's applicability to the plaintiff's proposed use of its land as a general bylaw. Id. at 388-390.
The Court concluded "that the nature and effect of the 1971 by-law is that of an exercise of the zoning power," which, if not enacted through the statutory requirements of G.L. c. 40A, has no effect on the "existing zoning regulations." Id. at 392, 394. The Court's conclusion was based on "the fact that similar by-laws have been adopted in the past by municipalities as zoning by-laws," and also "that prior to the adoption of the 1971 by-law the town's zoning by-law dealt specifically with the subject of trailer parks." Id. at 392-393. The Court noted that a "further consideration which leads us to this conclusion is that were we to adopt the defendant's theory [that the by-law was a proper exercise of the town's general police power] the assorted protections contained in the Zoning Enabling Act could in many cases be circumvented, thereby defeating the purposes of the statute." Id.
The Conservation Commission is empowered to deny permission for any removal, dredging, filling, or altering of subject lands within the town if, in its judgment, such denial is necessary to preserve environmental quality of either or both the subject lands and contiguous lands. Due consideration shall be given to possible effects of the proposal on all values to be protected under this by-law and to any demonstrated hardship on the petitioner by reason of a denial, as brought forth at the public hearing.
Id. at 9 n.3. The Lovequist court stated that "[w]e do not consider all ordinances or by-laws that regulate land use to be zoning laws, and we do not view art. 15 to be a zoning enactment." Id. at 12. The court concluded that "[i]n its present form, and particularly as applied in this case, art. 15 is comparable to an earth removal enactment, a kind of general by-law expressly permitted by statute." Id. at 13. The court further stated that "we should be reluctant to classify the instant by-law as a zoning measure for the reason that art. 15 manifests neither the purpose nor the effects of a zoning regulation." Id. The court explained that the "Dennis by-law does not prohibit or permit any particular uses of land or the construction of buildings or the location of businesses or residences in a comprehensive fashion. On its face it does not deny or invite permission to build any structure. It does not regulate density. Instead, it specifies that permission be obtained from the commission based on factual circumstances surrounding individual applications." Id.
The SJC distinguished the facts in Lovequist from those in Rayco stating that in "the case presently before us, no evidence has been introduced that there is or ever has been a comprehensive zoning by-law governing the wetland activities proposed by the plaintiffs. Rayco, moreover, nowhere suggests that municipal regulations that simply overlap with what may be the province of a local zoning authority are to be treated as zoning enactments which must be promulgated in accordance with the requirements of G.L. c. 40A." Id. at 14.
and one motor vehicle per bedroom thereafter." Spenlinhauer, 80 Mass. App. Ct. at 135 (internal quotations omitted). The Appeals Court concluded that "[a]pplication of the analysis contained in Rayco leads us to conclude that at least the parking component of the challenged ordinance is a matter for regulation through the town's zoning power, not through its use of a general ordinance." Id. at 139. This conclusion was based on the fact that "before adopting the ordinance, the town regulated off-street parking through its zoning bylaws," id. at 140, and further that discussion of the parking provisions of the ordinance at the meetings on the adoption of the ordinance centered "on the impact that dense parking had on the character and quality of the town's neighborhoods, precisely the target at which the town's zoning ordinance is so thoroughly and comprehensively aimed." Id. at 141. The court stated that "[a]gainst that backdrop, the town's attempt to use its general ordinance power to regulate off-street parking undercuts 'the assorted protections contained in' c. 40A, in the process frustrating the purposes for which c. 40A was enacted." Id. at 141, quoting Rayco, 368 Mass. at 393-394.
[h]ere, by contrast, there is a comprehensive bylaw regulating parking in the town. The subject of parking has not been committed by statute or regulation to another town board or agency. The bylaw does not simply focus on individual applications for activities in which a landowner wishes to engage but instead regulates parking on all land in single- family residence zones. Finally, although the town claims that the ordinance was enacted as a health measure pursuant to the town's general police power, there is on this record no nexus between public health and overnight off-street parking. Indeed, it is difficult to conjure a menace to public health that arises as the sun sets over unoccupied vehicles parked on the grounds of the house where their owners reside.
Rayco, Lovequist, and Spenlinhauer, read together, provide the principles for analyzing when a general bylaw impermissibly intrudes on a subject that is or should be regulated by the zoning bylaw. The first step is to examine the subject matter of the challenged general bylaw. A general bylaw may only regulate a subject if there is no history in the municipality of the subject being treated under zoning. Spenlinhauer, 80 Mass. App. Ct. at 139-140. If the municipality has a history of regulating that subject matter through its zoning bylaw, then it can only be further regulated through the zoning bylaw, not through a general municipal bylaw. Id. A general bylaw can only treat the subject matter of a zoning bylaw through regulations that supplement the terms of the zoning bylaw, through, for example, setting the terms of particular uses on individual applications through a licensing process. Lovequist, 379 Mass. at 13-14. The general bylaw may not, however, contradict or restrict the use that is controlled by the zoning bylaw. Id.; Spenlinhauer, 80 Mass. App. Ct. at 142.
The reason for this is that zoning bylaws have different, stricter requirements for enactment than general bylaws. See Rayco, 368 Mass. at 394. A zoning bylaw must be reviewed by the planning board in a public hearing and then reported on by the board, and, crucially, may only be enacted by a two-thirds vote of town meeting. G.L. c. 40A, § 5. General bylaws have no such requirementsthey may be enacted by a majority vote. See Pl. Exh. 11; G.L. c. 40, § 21. Moreover, even if enacted, a zoning bylaw change does not apply to pre-existing nonconforming structures or uses or to land for which a preliminary subdivision plan has been filed. G.L. c. 40A, § 6. General bylaws, on the other hand, are not subject to such a "zoning freeze." See Spenlinhauer, 80 Mass. App. Ct. at 137-138. If a municipality were to use a general bylaw to change or override a zoning bylaw, it would avoid these limits on its power to enact zoning bylaws and the scope of those bylaws. Rayco, 368 Mass. at 393.
General Laws c. 94G, § 3(a), does not change these principles. Section 3(a) allows cities and towns to "adopt ordinances and by-laws that impose reasonable safeguards on the operation of marijuana establishments." Id. Specifically, municipalities may enact bylaws that "govern the time, place and manner of marijuana establishment operations," id. at §3(a)(1), "limit the number of marijuana establishments in the city or town," id. at § 3(a)(2), "restrict the licensed cultivation, processing and manufacturing of marijuana that is a public nuisance," id. at § 3(a)(3), regulate signs, id. at § 3(a)(4), and establish civil penalties for violations, id. at § 3(a)(5). Nothing in § 3(a) requires that these bylaws be enacted either as zoning or general bylaws; the municipality has the option of using either regulatory regime. Therefore, once a municipality chooses to regulate recreational marijuana use under its § 3(a) authority by way of a zoning bylaw, it is subject to the rule of Rayco and Spenlinhauer that it may only change that regulation by amending the zoning bylaw, not by using a general bylaw to change what is allowed under the zoning bylaw. Spenlinhauer, 80 Mass. App. Ct. at 139-140. A general bylaw may only provide supplemental regulation of the marijuana use allowed under the zoning bylaw.
Here, Charlton chose to regulate recreational marijuana use in the Town through its zoning bylaw. It enacted Warrant Article 27, which amended the zoning bylaw to provide that certain recreational marijuana uses are allowed in the agricultural, community business, industrial and business enterprise park use districts by special permit. Given the relative newness of G.L. c. 94G, added by St. 2016, c. 334, § 5, Warrant Article 27 is the kind of "history" of regulating marijuana use by zoning that is contemplated in Rayco and Spenlinhauer. See Rayco, 368 Mass. at 393 (before enactment of general bylaw, zoning bylaw had dealt specifically with the subject of trailer parks); Spenlinhauer, 80 Mass. App. Ct. at 139-140 (before general bylaw enacted, zoning bylaw contained chapter of detailed parking regulations). Faced with the question put before it under c. 94G of how to regulate recreational marijuana use, the Town could have chosen to adopt a general bylaw. Instead, it chose to enact a zoning bylaw amendment, Warrant Article 27, which regulated recreational marijuana use through the traditional mechanisms of zoning, namely use districts and special permits. Having permitted marijuana use through its zoning bylaw, Charlton could only change or bar that use by amending the zoning bylaw. It could not do what it did herebar the previously allowed zoning use by Warrant Article 2, a general bylaw.
Indeed, the circumstances of the enactment of Warrant Article 2 demonstrate why it was improper. At the August 1, 2018, special town meeting, Russell and the other citizen proponents advanced two warrant articles: (1) Warrant Article 1, seeking to rescind the previously adopted zoning bylaw, Warrant Article 27; and (2) Warrant Article 2, seeking to adopt a general bylaw to ban all non-medical cannabis uses within the Town. Warrant Article 1 and Warrant Article 2 had the identical purpose: to bar the recreational marijuana use allowed by special permit under Warrant Article 27. Warrant Article 1 got a majority vote but failed to obtain the necessary two-thirds majority vote and therefore failed. Warrant Article 2 passed by a majority vote. In effect, town meeting evaded the strict two-thirds vote requirement of G.L. c. 40A, § 5, for amending a zoning bylaw by enacting a general bylaw instead. Therefore, Warrant Article 2 is invalid. It was an attempt to amend the Charlton zoning bylaw, and it did not obtain a two-thirds vote.
Russell and the amici have raised other issues. In his opposition, Russell challenges the validity of the Development Agreement and Host Community Agreement. These agreements are not the subject of the Summary Judgment Motion, and Russell has not brought a cross-motion for summary judgment. The validity of these agreements is not before the court in this motion, and the court does not address them.
' it would appear to be without subject matter jurisdiction to determine the constitutionality of G.L. c. 40A, § 6.").
For the foregoing reasons, the Motion for Summary Judgment is ALLOWED. Warrant Article 2 is beyond the scope of the Town's power and authority, and is invalid and of no force and effect. Judgment shall not enter at this time as Russell's cross-claim against the Town was not considered in the Plaintiffs' Motion for Summary Judgment. Pursuant to Mass. R. Civ. P. 54(b), any party may move for entry of separate and final judgment on Counts I and II of the Complaint.
[Note 1] The court acknowledges the amicus briefs of Michael Pill; of Mark Albano, Denis Arruda, Holly Arruda, Thomas K. Bailey, Donna Beers, Charlene Emco Belsito, Mark Belsito, Karen Bodamer, Scott Bodamer, Christine Breault, Richard Breault, Jane Carbonneau, Kathleen Cristadoro, Ann Faille, Rob Faille, William Foster, Merilee Fowler, Howard Galusha, Patricia Gordo, Stephanie Hanyes, Anne M. Hassel, Carol Hassel, Don C. Hayward, Heidi Heilman, Michele Henault, Josephine S. Hensley, Lester Hensley, Theresa Hoggins, Corinne Hogseth, Kent Howard, Moira Jacobs, Chris Kelly, Julie Kelly, Stephen Koronis, Brett Kustigian, Kristin Kustigian, Helen Labosier, Jesse LeBlanc, Ann Marie Locwin, Eric Locwin, Frank S. Locwin, Morgan Long, Brooke Lowe, Carla Lowe, Monique Manna, Denise MacFarlane, Patrick MacFarlane, Jill Martin, Marjorie McGuire, Roger Morgan, Christina Mullen, Cathleen Nikosey, Milissa Obara, John M. O'Halloran, Laurie Palepu, Antoinette D. Parvis, Lisa Pearson, Donna M. Peters, Karen Randall, Lori Robinson, Amy Ronshausen, Sue Rusche, Margaret M. Russell, Christine Saucier, Tim Saucier, Julie Schauer, Sally Schindel, George Seaver, Michael Shaw, Karen Sherman, Armando Sodano, Moira Starks, Maribeth Trembley, Tom Vega, Ann Washburn, Ed Wood, David Woodacre, Kathleen Woodacre, David Wolkowicz, Peter Wright, Tanya Wright, Alicia Zelenko, Andrey Zelenko, and Nataliya Zelenko; and of Cape Cod Grow Lab, LLC, Nature's Alternative, Inc., and The Haven Center, Inc.
[Note 2] In his response to the Plaintiffs' Statement of Undisputed Material Facts, Russell denied this statement, referring to exhibit 10 in Russell's Document Appendix. Exhibit 10 does not support the denial or state any evidence that would dispute this fact.