In his 36-page ruling Thursday, the judge acknowledged the complexity of the issue, writing with respect to the question of ancillary use that there is “no question that the municipalities of the Commonwealth have entered somewhat unchartered territory with respect to determining whether any activity is of the kind typically associated with a use as new as marijuana cultivation.”
But the judge determined that, by drying the “flower” and extracting the “oil” from its harvested marijuana, the company “is essentially preparing the agricultural product grown on the site for final sale, not unlike a farmer making cider, cheese, ice cream, butter or maple syrup.”
The Planning Board, which made arguments in the case, had maintained, along with Mr. Russell, that the processing of marijuana should not be considered accessory to the agricultural use, but rather as a primary use because of the size and complexity of the processing facility.
The judge, citing case law, rejected the argument, saying the processing facility “remains a commercial indoor horticulture/floriculture use allowed by the bylaw.”
The judge also rejected an argument that marijuana should not be considered agriculture because it was not specifically listed as an agricultural use in the town’s “restrictive” bylaw, which bans uses not expressly allowed.
“The problem with this reading, is that the bylaw does not define crops, horticulture, or floriculture, and the same argument could not be reasonably made to prohibit the growth of corn, soybeans, tomatoes or any other variety of commonly accepted ‘agricultural’ products,” Judge Foster wrote. “While subject to immeasurably higher scrutiny than the growth of tomatoes, marijuana is still a plant and is cultivated in much the same manner as other less controversial products.”
The judge went on to write that, applying definitions from the dictionary, the commercial growth of marijuana for the purpose of harvesting its flowers “is the cultivation of a crop which is arguably a floricultural enterprise and is at the very least horticulture or agriculture with in the accepted definitions of those terms.”