The Law

Unfairly Doubled Their Chances by Sara Palmer High Maine LLC filed a complaint against the Town of Kittery, alleging that the town violated its zoning laws by allowing GTF Kittery 8 LLC, a competitor, to submit two pre‑applications for separate spaces in the same C‑2 zone, which were later merged. The company alleges that this caused particularized injury. In 2021 High Maine LLC filed a complaint against the Town of Kittery. The main issue was that the company GTF Kittery 8 LLC, a direct competitor of High Maine, pre‑applied twice for a license to open a marijuana retail store in the town’s C‑2 zone. One pre‑application was for the ground floor, the other, for the second floor. Kittery 8 followed the protocol set up by the Town in regard to a marijuana store. The protocol states that only one marijuana store is permitted in each zone that allows marijuana stores. It also states that no business can have multiple marijuana stores in the town. High Maine also pre‑applied for a marijuana retail store in the C‑2 zone, located at 1 Route 236, as opposed to GTF Kittery’s location at 89 Route 236. To determine which company “wins” the store location the town has a lottery system. Any company that is not chosen is then put on a waitlist in the order it was drawn. Companies that send in a pre‑application after the lottery drawing are then put on the bottom of the waitlist. When a spot opens up in the zone associated with the waitlist the first pre‑applicant is contacted and invited to apply for a license. The Town of Kittery held a lottery in October 2021 and GTF Kittery was put on the waitlist along with High Maine. On February 27th, 2023, GTF Kittery was told they could put in an application for a license. GTF Kittery 8 then put in a license application as well as an application for a change of use and a modified site plan. The modified site plan was to change the first and second floor into one space, as opposed to two separate lots. High Maine LLC started sending objections to the Town of Kittery in regards to GTF Kittery 8 LLC’s pre‑application on June 6th, 2023. Its first objection stemmed from GTF Kittery 8’s application to change the location of the premises to include both floors of the building. The objection also states that in allowing GTF Kittery 8 to have a storefront at 89 Route 236, it violates 28‑B M.R.S. § 402(2)(A) (2024) by authorizing a cannabis establishment within 1,000 feet of a school. Despite High Maine’s objections, the Town’s Planning Board approved the application for change of use and modified site plan on September 14th, 2023. In response, on October 9th, 2023, High Maine objected to the town issuing a license to GTF Kittery. Nothing came of the second objection and the town council voted to accept the license on October 11th, 2023. High Maine was not finished fighting the decision, however. On the 27th of the same month, the company filed a complaint to the Superior Court, seeking a judicial review of the town’s approval of GTF Kittery 8’s application. In response, the Town of Kittery moved to dismiss the complaint, citing that High Maine failed to allege a particularized injury. There were a handful of rebuttals before the Superior Court came to a decision. High Maine opposed the town’s motion, arguing that it does have standing to challenge the town’s decision, as it was also a pre‑applicant. The town replied, stating that although High Maine may be affected by it’s decisions, any diminished chances to apply for a license is too abstract and therefore does not have enough support to constitute an injury. On January 26th, 2024, the Superior Court dismissed High Maine’s complaint, stating that the company is not directly affected by the town’s decision due to the town having a waitlist. The court reasons that because of the waitlist, High Maine’s status as a prospective license holder was unchanged after the town’s decisions. As a final response, High Maine quickly appealed the decision to the Supreme Court. The Supreme Court focused on if High Maine did suffer a particularized injury due to the town’s decision. The court found that High Maine’s prospect for obtaining the single license available in the C‑2 zone was directly and negatively affected by the process and licensing decision, stating that there are defects in the process. It was decided that GTF Kittery 8 did obtain an unfair advantage by submitting two applications for two separate locations (one on the first floor and the other on the second) and then having the two sites merged in the site plan review process. The Supreme Court ultimately decided that High Maine’s allegations were enough to support its standing and vacated the judgment to dismiss the complaint and sent the complaint back for further proceedings. (High Maine, LLC v. Town of Kittery (MAINE SUPREME JUDICIAL COURT, Docket: Yor-24-72)) Decision: November 2024 Published: November 2024 Aided by: ChatGBT Feature Articles If you have an opinion on the retailing or retail real estate industries, take this opportunity to share your thoughts. Articles should run between 400 and 800 words. Topics can, be general in nature, consumer observation or specific to retail concepts or practices. Articles will be posted for at least one week and will then be placed in the Editorial Archives. All articles submitted will be read and considered but we cannot guarantee publication. Each published article will carry the submitters byline (if desired) and is a free service to our community. Article ideas and suggestions are also always welcomed. 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