Great Barrington — Over a year after three marijuana dispensaries filed lawsuits against the town over previously signed Community Host Agreements (HCAs), the state’s Cannabis Control Commission has filed a motion to intervene in the case.
In March 2024, Theory Wellness, Rebelle Dispensary owners Community Growth Partners, and Farnsworth Fine Cannabis all filed lawsuits against the town in Middlesex Superior Court.
Theory Wellness, located at 394 Stockbridge Road, signed its HCA with the town on October 17, 2016, and another one on June 18, 2018.
Community Growth Partners, which owns Rebelle Dispensary located at 783 South Main Street, signed its HCA with the town on March 20, 2019.
Farnsworth Fine Cannabis, located at 126 Main Street, signed its HCA in August 2019.
The companies are all demanding that Great Barrington return millions of dollars they paid the town through their respective HCAs.
The Commission originally indicated that it would file for a motion to intervene in November 2024 but was waiting for approvals from the Massachusetts Attorney General’s Office.
Attorney General Andrea Joy Campbell, through Special Assistant Attorney General Kajal Chattopadhyay, officially filed a motion to intervene on behalf of the Commission in Middlesex Superior Court on Wednesday, May 21.
Chattopadhyay lists numerous reasons for the Commission to intervene in the lawsuits, including:
Great Barrington has directly challenged the statutory authority of the Commission without the Commission present, and a judicial resolution on this matter may impair or impede the Commission’s powers.
Mass. R. Civ. P. 24(a)(2) provides that a party shall be permitted to intervene as a matter of right when an interest in the matter is claimed and disposition of the matter in their absence would impair or impede their ability to protect that interest.
Great Barrington has directly challenged the authority of the Cannabis Control Commission to review HCAs and its ability to enforce Chapter 180 against Great Barrington.
The Commission would be impaired in its ability to protect its authority if this matter were disposed of in its absence.
In a separate Memorandum in Support of its Motion to Intervene, Chattopadhyay writes that the town has argued in its defense against the lawsuits that:
…the HCAs between it and the plaintiffs in this matter are not subject to review and approval by the Commission under G.L. c. 94G and the regulations promulgated thereunder by the Commission, 935 CMR 500.180.
In advancing this argument, however, Defendant demonstrates a profound misunderstanding of the Commission’s licensing process, and directly attacks the Commission’s statutory and regulatory authority. Because the arguments made by Great Barrington in this case directly implicate the Commission’s authority to review and approve HCAs under G.L. c. 94G and the Commission’s implementing regulations, the Commission should be allowed to intervene as a Third Party Plaintiff in this matter.
Because the defenses raised by the defendant would limit or abrogate the authority of the Commission if recognized, and none of the parties currently involved in this matter are adequately situated to fully protect that authority, the Commission claims intervention as a matter of right.
In response, Town Counsel David Doneski filed a motion in opposition to the Commission intervening. Doneski writes in his motion:
The plaintiffs’ Complaint alleges that the Community Impact Fees under their respective HCAs were improperly assessed, that the town is not entitled to any CIFs, and that payments made to the town (other than charitable donations) must therefore be returned.
While the complaint is founded on the assertion that the HCAs are invalid or illegal because they do not comply with the current provisions of Chapter 94G of the General Laws, the true nature of the action is a request for a determination of rights and obligations of private parties under voluntary contracts. It is not an action that touches on any rights or interests of the Cannabis Control Commission in such a substantive manner as to justify either mandatory or permissive intervention by the Commission.
Doneski argues that the Commission “cannot meet its burden for intervention as a right,” in part because, he claims, the Commission’s motion to intervene is not timely:
The plaintiffs filed their complaint on March 14, 2024. The Commission first gave notice that it was contemplating a motion to intervene in November of 2024, when its counsel contacted counsel for the plaintiffs and counsel for the town.
Following that communication, the plaintiffs and the town, as a general courtesy, filed a joint motion to continue the hearing on plaintiffs’ motion for judgment on the pleadings on November 12, 2024.
The hearing had been scheduled for November 19, 2024 and the plaintiffs and the town proposed a 30-day continuance to allow for the filing of a motion to intervene.
On November 13, 2024 the motion to continue was endorsed by the court as allowed, but without a new hearing date. A notice of hearing date was issued on February 3, 2025,setting the new date as June 9, 2025.
As of February 3, 2025, the Commission had not served or filed a motion to intervene. The motion now before the Court is dated April 30, 2025, and was deemed A notice of hearing date was issued on February 3, 2025, setting the new date as June 9, 2025.
As of February 3, the Commission had not served or filed a motion to intervene. The motion now before the Court is dated April 30, 2025, and was deemed served on May 8, 2025 following a conferral between counsel for the Commission and counsel for the town.
Doneski further argues that the Commission does not have an interest in the transaction, the HCA, that is the subject of the lawsuits:
[The litigation] is, from both a legal and practical perspective, a breach of contract action, a claim for relief arising from agreements entered into with the town. Thus, the essence of the litigation is a commercial dispute.
That the plaintiffs rely on the alleged applicability of a statute and regulations within the administrative purview of the commission does not give the commission a cognizable interest in the transactions between the plaintiffs and the town. For the purpose of intervention, those transactions must be viewed as negotiated agreements for financial and other business arrangements. They do not create in the Commission the type of interest that properly supports intervention in this matter.
It is undeniable that parties’ claims in litigation may often be subject to or determined by the application and/or interpretation of statutory or regulatory provisions. That alone should not constitute an ‘interest’ basis for intervention in such litigation by a governmental agency that happens to have administrative responsibility under the statutory scheme.
In response to Doneski’s motion, Chattopadhyay writes in a filing that “None of [Doneski’s] arguments are persuasive and they do not merit extended discussion. Ultimately, the arguments are contradictory and self defeating. This court should reject them and allow the Commission’s intervention in this matter.”
Chattopadhyay argues:
Notwithstanding that no action has been taken in this matter since November [2024], the town now claims that the Commission’s motion is not timely. This argument falls flat. This court has not ruled on any dispositive motions in this matter and the town (up until now) has not claimed any prejudice on account of delay. The Commission’s motion is timely and its intervention will cause the parties no harm.
Next, the town goes on to argue that the Commission does not have an interest in the transactions at issue in this matter because they are, at best, private financial disputes between the plaintiffs and the town.
In its next breath, the town posits that the plaintiffs adequately represent the interests of the Commission. This argument is internally contradictory as the town can’t have it both ways. If, indeed, this matter concerns private financial transactions between the parties, then the parties (whether plaintiffs or the town) cannot adequately represent the interests of the Commission.
As outlined in the Commission’s other pleadings, the Commission’s interest in intervention stems from challenges to its statutory authority to review and approve HCAs under G.L. c. 94G. Neither of the parties adequately represent the Commission’s statutory interests.
In an email to The Berkshire Edge on Thursday, May 22, Commission Press Secretary Neal McNamara passed along a statement from Chattopadhyay:
Great Barrington has directly challenged the authority of the Cannabis Control Commission to enforce Chapter 180 of the Acts of 2022, which granted the Commission oversight of host community agreements and Community Impact Fees, Municipal Equity requirements, and suitability reform. The Commission is intervening in this matter to protect its authority to oversee vital aspects of cannabis regulation.
A court date to decide on the Commission’s intervention was not set by press time.
Click here for documents pertaining to the Commission’s motion to intervene.
The Commission originally indicated that it would file for a motion to intervene in November 2024 but was waiting for approvals from the Massachusetts Attorney General’s Office. Read More
