The Law

Beer-Wine-Drug Combo Nixed by Ron Davis Proximity to schools has thwarted plans to add a beer-and-wine retailer to the offerings of a Massachusetts shopping center. The shopping center, located in the state’s southeastern town of Carver, is owned by the operators of a pharmacy that occupies a large part of the facility. And when a vacancy occurred in the space next to the pharmacy, the center’s owners decided to open the beer-and-wine store there. The objective, the pharmacy owners said, was to connect the beer-and-wine store to the pharmacy so customers would have a “one-stop shopping center.” Those plans didn’t sit well with Carver town officials, however. They opposed such a store as having a potentially “detrimental impact” on the local community. They pointed out that schools and a day-care center are in the vicinity of the shopping center. And they said they feared the children who attend them will be endangered by increased traffic generated by the beer-and-wine store. In fact, the pharmacy sells items of interest to children. And a highway that lacks traffic lights or crosswalks separates the schools and the shopping center. But the Zoning Board of Appeals of Carver noted that several full-service package stores already are located on that highway. And Board members dismissed any possible benefits of the proposed beer-and-wine store at the shopping center. So they rejected the zoning-change application. The shopping center’s owners asked the courts to overturn the Zoning Board decision. They explained that the beer-and-wine store would provide employment opportunities to the community and convenience to patrons of the pharmacy. A Massachusetts court first ruled in favor of the center’s owner, concluding that the Board in its decision did not actually consider whether the plusses of the beer-and-wine store outweigh the minuses. Thus, the judge added, the board had based its decision on an “untenable ground.” The Zoning Board appealed that decision. Meanwhile, the shopping center’s owners leased space in another part of the facility to a special-needs school. That action gave opponents of the beer-and-wine store the ammunition they needed for their resistance to the beer-and-wine store. The Massachusetts court reversed itself and denied the granting of a permit to operate a beer-and-wine store at the shopping center. The center’s owner appealed. A Massachusetts appellate court upheld the decision of the lower court, explaining, “The Zoning Board reasonably foresaw the increased traffic as detrimental to the [school-age] population. It was rational for the Board to conclude that the detriment arising from the proximity to schools outweighed the potential benefits…. The [lower-court judge] was correct when he determined, in his second decision, that the Board’s ruling was entitled to deference.” (Sedell v. Zoning Board of Appeals of Carver, 74 Mass.App.Ct. 450) Decision: July 2009 Published: July 2008