Downtown Marijuana Shop Foes Ask Federal Court to Send Case Back to State for Ruling

Caroline Pineau before the Haverhill City Council last January. (WHAV News file photograph.)

In yet another tit for tat, property owners seeking to stop the opening of a Washington Street marijuana retailer today asked a federal judge to quickly send the case back to a Massachusetts court.

The action before U.S. District Court Judge Allison D. Burroughs is intended to secure a state Land Court ruling barring the city from going ahead with next week’s special permit hearing on a recreational marijuana shop. The case was brought by J. Bradford Brooks and Lloyd Jennings, trustees of property at 128 Washington St., and Stavros Dimakis, as owner of Mark’s Deli and as a trustee of Railroad Square property. The City Council is scheduled to vote Tuesday, June 18 on Caroline Pineau’s request for a special permit to operate her proposed “Stem” shop at 124 Washington St.

Represented by both Boston and Washington, D.C., lawyers, Brooks, a former Haverhill city councilor; Jennings; and Dimakis, a candidate for City Council, argue Haverhill’s marijuana retail zones ordinance is illegal under state law because it violates required buffer zones near schools and parks, allows illegal “spot zoning” and is inconsistent with federal law prohibiting the manufacture, distribution, sales or possession of marijuana.

While state law calls for 500-foot buffer zones around schools and parks, opponents concede, the city has discretion under the law to reduce the distance. Lawyers say the city “completely eliminated the buffer zone only in the ‘Waterfront District’” where Columbus and Riverfront Parks are adjacent to Washington Street and proposed Montessori school in the former Gerson building. They added, eliminating the buffer zone is inconsistent with the city’s intent to keep pot away from areas where children play.

Lawyers also argued the city could not move the case to federal court because Pineau’s Haverhill Stem and building owner Westland Group did not explicitly agree.

“This action is all about state law. It raises state law challenges to a state zoning ordinance,” lawyers Brian W. Barnes of Washington and Scott A. Schlager and Alvin S. Nathanson of Boston said in a summary.

It was the matter of a federal question that allowed Haverhill’s lawyers to move the case to U.S. District Court in Boston. The city’s initial success prevented state Land Court from deciding last Friday whether to halt the city’s planned review of Stem. In the filing, opponents’ lawyers said, winning their case against Stem does not depend on federal law. Rather, federal issues are raised only to back state-related claims.

Unlike federal law, they also argue, property owners can challenge city ordinances or regulations in state court without having to wait for the contested business to open or even be permitted.

Even if there is federal jurisdiction, opponents contend, there is a tradition of deferring to state courts to “avoid collisions of authority.”

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