Pot Applicant’s Injunction Request Denied In Superior Court

By: Ryan Bray


ORLEANS – A Barnstable Superior Court judge has denied a request for an injunction prohibiting the select board from moving forward with host community agreements with two recreational marijuana businesses.

B/Well Holdings, Inc., which operates a retail marijuana business in Provincetown, filed the injunction June 16. In it, the company claims that the select board erred when it chose to move forward with negotiations with Seaside Joint Ventures, Inc. and Ember Gardens. 

The two businesses were listed as parties of interest in the injunction, as was Dune Wellness, LLC, which the select board chose as an alternate.

B/Well argued that the select board failed to follow its own process in making its decision, noting that it scored higher on the board’s own point system than all but one of the five applicants seeking to operate in town.

But Judge Mark Gildea denied the injunction request. In his Aug. 5 decision, he said B/Well did not sufficiently show the “significant” and “extraordinary” need for an injunction. Gildea also said the 130-point scoring system set up by the board wasn’t the only grounds it had on which to make its decision.

The court does not find that B/WELL has demonstrated a likelihood of success that the select board expressly adopted a procedure that required the HCA rights to be awarded to the two highest scorers,” Gildea wrote in his decision. “The court also does not find that B/WELL has demonstrated a likelihood of success that the select board’s actions were arbitrary and capricious.”

The select board began formulating a process for selecting applicants late last year. The town’s zoning bylaw allows two recreational marijuana businesses. The board voted to move forward with its process in January and issued a request for information, or RFI, on Feb. 4.

The process called for each select board member to “score” each of the five applicants on 11 different criteria. The town published the aggregate results on May 28, according to the decision.

While B/Well scored just one point behind the highest scoring applicant and more than two points ahead of Seaside Joint Ventures, the select board voted 3-2 June 2 to enter into an agreement with Seaside and 5-0 to also enter into an agreement with Ember Gardens. 

In his decision, Gildea also pointed to public discussions Town Administrator John Kelly had with the select board explaining that there was not a “definitive award provision” in the RFI and that the scores were designed to be used by board members as a “guide” toward coming to majority vote.

It also was noted in the decision that B/Well, despite its point total, was not the first choice of any of the select board members. 

Three board members scored B/WELL number two, one scored it number three, one scored it number four,” Gildea wrote. “No board member scored B/WELL as number one.”

Calls for comment made to B/Well’s attorney, Gary Matsko, and Town Counsel Michael Ford were not returned.

The agenda for the select board’s Aug. 11 meeting called for the board to meet in executive session “to discuss strategy with respect to litigation with B/Well Holdings, Inc.”