HAVERHILL — A state appeals court in Boston affirmed a decision of the Land Court upholding a city zoning ordinance that allowed a retail marijuana shop, Stem, to open in the downtown district.
The abutting owners had challenged the provisions of the city’s adult use marijuana zoning ordinance regarding locations in the downtown district claiming the city created an illegal ordinance that favored Stem by way of “spot zoning.”
In its decision dated Aug. 16, the appeals court concluded that “permitting a retail marijuana store in the busy, downtown waterfront district regardless of its proximity to public parks and schools bears a rational relation to a legitimate zoning purpose and is not spot zoning.”
Several downtown business owners have sued the city to block a retail marijuana shop from moving onto Washington Street in the heart of downtown claiming the zoning was not legal and was not done correctly.
The suit lists the plaintiffs as local realtor Bradford Brooks, a local contractor Llyod Jennings — both of whom are listed in the suit as trustees of L&B Realty Trust — and Stavros (Steve) Dimakis of Mark’s Deli, who is listed as a trustee of the Evthokia Realty Trust.
City Solicitor William Cox said the plaintiffs initially asked the state Land Court to rule on the validity of that zoning.
“The Land Court ruled on a motion for summary judgement as the law did not support their claims, which is what the Appeals Court upheld,” Cox said.
“We’ve always felt the zoning ordinance we enacted was enacted legally,” Cox added. “This challenge to the ordinance was frivolous.”
According to state laws, the Land Court has exclusive jurisdiction to determine the validity of municipal zoning ordinances, bylaws and regulations.
After the Land Court upheld the zoning, Jennings, Brooks and Dimakis appealed the decision.
Their suit specifically targeted 124 Washington St., which for years housed the Sons of Italy, and which is where Caroline Pineau opened a retail cannabis shop in May of 2020 under the name Haverhill Stem LLC. The suit indicated Pineau leases the building from The Westland Group LLC, which was also named in the suit.
Cox said the appeals court saw no evidence to support the contentions of the complaining neighbors while recognizing the city could reasonably conclude that the waterfront district is a “particularly well-suited location for a retail marijuana store.”
The suit claimed that the zoning that was enacted in January of 2019 by the city council and which allows for a pot shop in the waterfront district, “arbitrarily and unreasonably changes the existing character of the neighborhood by increasing congestion in the streets, causing an overcrowding of land, diminishing the adequate provision of transportation, endangering children at nearby schools and frequent patrons at Mark’s Deli, endangering children who visit and frequently use the multiple parks within 500 feet of the property, cause disturbing noises incident to increased traffic and marijuana business operations, noxious smells, and destroying the attractive surroundings created by residential nature of the existing district with a stigmatized marijuana use, all of which will destroy the desirability and value of property in the district, including plaintiff’s properties.”
The suit notes that 124 Washington St. abuts, is connected to, and is between the properties owned by and under the control of L&B Realty Trust.
The court also noted that the absence of a buffer zone in a busy, downtown area, in light of other requirements allowing for the regulation of a marijuana store, is “neither arbitrary nor unreasonable.”
The court concluded the waterfront district is not subject to buffer zone provisions that are in effect in the city’s other marijuana retail zones.
“As pedestrian activity in the downtown is encouraged, the elimination of a buffer zone in this area (of the downtown) is rationally related to a legitimate zoning purpose: generating foot traffic and promoting retail development,” the Appeals Court said in its decision.
The court also noted a lack of of evidence suggesting a school or playground is near Stem.
The city was represented in the suit by special council Mark Bobrowski.
Jennings, Brooks and Dimakis have a limited amount of time to file an application for further appellate review of the case by the full Supreme Judicial Court if they choose do to so, Cox said.
