STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. AP-2022-10 ) OLD PORT DEVELOPMENT LLC, ) ) Petitioner, ) ) V. ) ) CITY OF PORTLAND, ) ORDER ) Respondent, ) and ) ) SILVER THERAPEUTICS OF ) PORTLAND, LLC, ) ) Party-in-Interest. )
Before the Court is Party-in-Interest Silver Therapeutics of Portland, LLC's
("Silver") Motion to Dismiss. Respondent City of Portland ("the City") joins Silver's
motion. Also pending is Petitioner Old Port Development LLC's ("OPD") Motion to
Consolidate Cases and Motion for Trial of the Facts. For the following reasons, the Court
grants Silver's Motion to Dismiss. Accordingly, the remaining motions are moot.
I. Background
Pursuant to Chapter 35 of the City's Code, which is titled the Marijuana Businesses
Ordinance ("the Ordinance"), Silver applied for an Adult Use Marijuana Retail License
on August 30, 2020. Silver's application was tentatively approved on November 30, 2020.
On November 5, 2021, Silver amended its application to apply for a Medical Marijuana
Retail License instead. On November 22, 2021, the Director of Permitting and Inspections
issued Silver a Medical Marijuana Retail License.
On December 3, 2021, OPD appealed the issuance of the license to the City
Manager. Interim City Manager Danielle West informed OPD that the Ordinance does
Page 1 of 5 not provide for review of the issuance of a marijuana retail license by the City Manager.
Indeed, section 35-4(a) of the Ordinance provides only for direct appeal to the Superior
Court of a decision to issue a marijuana retail license.
On December 22, 2021, OPD filed a petition in a related case in this Court, Docket
No. AP-2021-41, challenging the approval of Silver's medical marijuana retail license
application. OPD contended that the City erred in failing to apply the Ordinance's
requirement that new marijuana retail facilities not be located within one hundred feet of
an existing marijuana retail store ("the Dispersal Requirement"). § 35-43(h). OPD alleges
that its marijuana retail store at 367 Fore Street is located directly across the street from
Silver's 370 Fore Street storefront. The Court remanded that matter to the City with
instructions to remand to the Director of Permitting and Inspections for issuance of a
reviewable decision. In the meantime, Silver applied to convert its medical marijuana retail license back
to an adult use retail license. The City approved the converted application on March 4,
2022. Although there was never a public hearing or formal proceeding regarding Silver's
applications, OPD submitted comments and inquiries to City officials throughout the
process. On March 30, 2022, OPD filed this petition to challenge the approval of Silver's
converted application. Merits briefing in this matter has been stayed pending the
resolution of AP-2021-41.
II. Discussion
A. Motion to Dismiss
Silver has moved to dismiss OPD's petition for lack of standing. The Ordinance
provides that "[a]n appeal from a decision to issue, issue with conditions, deny, or revoke
a license pursuant to Article III may be appealed to the Superior Court pursuant to M.R.
Civ. P. 80B by a party with standing." Portland, Me., Code § 35-4 (May 18, 2020).
Page 2 of 5 Generally, "[i]n order to have standing to file an SOB appeal in the Superior Court, the
appellant must prove (1) that it was a party at the administrative proceeding, and (2) that
it suffered a particularized injury as a result of the agency's decision." Norris Family
Assocs., LLC v. Town of Phippsburg, 2005 ME 102, 'l[ 11, 879 A.2d 1007. An appellant may have party status without having formally appeared as a party
as long as it participated throughout the administrative proceeding. Friends of Lincoln
Lakes v. Town of Lincoln, 2010 ME 78, 'l[ 12, 2 A.3d 284. The parties apparently do not
dispute that OPD "participated" in the licensing process. Although there was no hearing
below, OPD wrote to City officials about its objections to Silver's applications and
attempted to appeal the issuance of a medical marijuana retail license to the City Manager
before bringing its appeals to this Court. This level of participation is likely sufficient to
confer party status on OPD. See id.
A party suffers a particularized injury when a judgment or order adversely and
directly affects that party's property, pecuniary, or personal rights. Nergaard v. Town of
Westport Island, 2009 ME 56, 'l[ 18, 973 A.2d 735. A particularized injury is an injury that
is distinct from the harm experienced by the public at large. Id. Because of an abutting
landowner's proximity, an abutter need only demonstrate a "minor adverse consequence
affecting the party's property, pecuniary or personal rights" to have standing. Sproul v.
Town of Boothbay Harbor, 2000 ME 30, 'l[ 7,746 A.2d 368. The parties do not dispute that OPD is an abutter. Silver argues, however, that the
standing threshold for abutters is lowered only in the context of challenges to land use
decisions. Consequently, Silver contends that Silver and OPD's proximity to each other
has no effect on the standing analysis because the issuance of a marijuana retail license is
not a land use decision.
Page 3 of 5 Indeed, the decision was not appealable to the City's Zoning Board of Appeals.
However, the decision to issue a license necessarily involves land use considerations:
issuance of a marijuana retail license is subject to a dispersal requirement, submission of
an odor mitigation plan, and submission of a waste disposal plan. Moreover, OPD's
proximity to Silver is relevant because OPD's claims center on the Dispersal Requirement.
However, OPD does not allege an injury that meets even the minimal standard for
abutters. The primary injury that OPD alleges is the potential for increased competition
due to the proximity of Silver's storefront. 1 Potential monetary harm from increased
competition is not sufficient to establish standing-not even for an abutter. See Varney v.
Look, 377 A.2d 81, 83 (Me. 1977) (holding that a "speculative possibility of some monetary
harm" to clam diggers caused by increased competition flowing from the issuance of
three hydraulic rake licenses was not sufficient to establish aggrievance); Christy's Realty
Ltd. P'ship v. Town of Kittery, 663 A.2d 59 (Me. 1995) (suggesting that "increased business
competition" is not sufficient to establish standing for an abutter, but finding that the
abutter had standing because of a different alleged injury).
The Law Court has only recognized increased competition as a sufficient basis for
standing when a relevant statute evidences an intent to protect the competitive interests
at stake. See Hammond Lumber Co. v. Fin. Auth. ofMe., 521 A.2d 283,287 (Me. 1987) (holding
that increased competition was sufficient to establish standing because the Finance
Authority of Maine was required by statute to consider and weigh adverse effects on
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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. AP-2022-10 ) OLD PORT DEVELOPMENT LLC, ) ) Petitioner, ) ) V. ) ) CITY OF PORTLAND, ) ORDER ) Respondent, ) and ) ) SILVER THERAPEUTICS OF ) PORTLAND, LLC, ) ) Party-in-Interest. )
Before the Court is Party-in-Interest Silver Therapeutics of Portland, LLC's
("Silver") Motion to Dismiss. Respondent City of Portland ("the City") joins Silver's
motion. Also pending is Petitioner Old Port Development LLC's ("OPD") Motion to
Consolidate Cases and Motion for Trial of the Facts. For the following reasons, the Court
grants Silver's Motion to Dismiss. Accordingly, the remaining motions are moot.
I. Background
Pursuant to Chapter 35 of the City's Code, which is titled the Marijuana Businesses
Ordinance ("the Ordinance"), Silver applied for an Adult Use Marijuana Retail License
on August 30, 2020. Silver's application was tentatively approved on November 30, 2020.
On November 5, 2021, Silver amended its application to apply for a Medical Marijuana
Retail License instead. On November 22, 2021, the Director of Permitting and Inspections
issued Silver a Medical Marijuana Retail License.
On December 3, 2021, OPD appealed the issuance of the license to the City
Manager. Interim City Manager Danielle West informed OPD that the Ordinance does
Page 1 of 5 not provide for review of the issuance of a marijuana retail license by the City Manager.
Indeed, section 35-4(a) of the Ordinance provides only for direct appeal to the Superior
Court of a decision to issue a marijuana retail license.
On December 22, 2021, OPD filed a petition in a related case in this Court, Docket
No. AP-2021-41, challenging the approval of Silver's medical marijuana retail license
application. OPD contended that the City erred in failing to apply the Ordinance's
requirement that new marijuana retail facilities not be located within one hundred feet of
an existing marijuana retail store ("the Dispersal Requirement"). § 35-43(h). OPD alleges
that its marijuana retail store at 367 Fore Street is located directly across the street from
Silver's 370 Fore Street storefront. The Court remanded that matter to the City with
instructions to remand to the Director of Permitting and Inspections for issuance of a
reviewable decision. In the meantime, Silver applied to convert its medical marijuana retail license back
to an adult use retail license. The City approved the converted application on March 4,
2022. Although there was never a public hearing or formal proceeding regarding Silver's
applications, OPD submitted comments and inquiries to City officials throughout the
process. On March 30, 2022, OPD filed this petition to challenge the approval of Silver's
converted application. Merits briefing in this matter has been stayed pending the
resolution of AP-2021-41.
II. Discussion
A. Motion to Dismiss
Silver has moved to dismiss OPD's petition for lack of standing. The Ordinance
provides that "[a]n appeal from a decision to issue, issue with conditions, deny, or revoke
a license pursuant to Article III may be appealed to the Superior Court pursuant to M.R.
Civ. P. 80B by a party with standing." Portland, Me., Code § 35-4 (May 18, 2020).
Page 2 of 5 Generally, "[i]n order to have standing to file an SOB appeal in the Superior Court, the
appellant must prove (1) that it was a party at the administrative proceeding, and (2) that
it suffered a particularized injury as a result of the agency's decision." Norris Family
Assocs., LLC v. Town of Phippsburg, 2005 ME 102, 'l[ 11, 879 A.2d 1007. An appellant may have party status without having formally appeared as a party
as long as it participated throughout the administrative proceeding. Friends of Lincoln
Lakes v. Town of Lincoln, 2010 ME 78, 'l[ 12, 2 A.3d 284. The parties apparently do not
dispute that OPD "participated" in the licensing process. Although there was no hearing
below, OPD wrote to City officials about its objections to Silver's applications and
attempted to appeal the issuance of a medical marijuana retail license to the City Manager
before bringing its appeals to this Court. This level of participation is likely sufficient to
confer party status on OPD. See id.
A party suffers a particularized injury when a judgment or order adversely and
directly affects that party's property, pecuniary, or personal rights. Nergaard v. Town of
Westport Island, 2009 ME 56, 'l[ 18, 973 A.2d 735. A particularized injury is an injury that
is distinct from the harm experienced by the public at large. Id. Because of an abutting
landowner's proximity, an abutter need only demonstrate a "minor adverse consequence
affecting the party's property, pecuniary or personal rights" to have standing. Sproul v.
Town of Boothbay Harbor, 2000 ME 30, 'l[ 7,746 A.2d 368. The parties do not dispute that OPD is an abutter. Silver argues, however, that the
standing threshold for abutters is lowered only in the context of challenges to land use
decisions. Consequently, Silver contends that Silver and OPD's proximity to each other
has no effect on the standing analysis because the issuance of a marijuana retail license is
not a land use decision.
Page 3 of 5 Indeed, the decision was not appealable to the City's Zoning Board of Appeals.
However, the decision to issue a license necessarily involves land use considerations:
issuance of a marijuana retail license is subject to a dispersal requirement, submission of
an odor mitigation plan, and submission of a waste disposal plan. Moreover, OPD's
proximity to Silver is relevant because OPD's claims center on the Dispersal Requirement.
However, OPD does not allege an injury that meets even the minimal standard for
abutters. The primary injury that OPD alleges is the potential for increased competition
due to the proximity of Silver's storefront. 1 Potential monetary harm from increased
competition is not sufficient to establish standing-not even for an abutter. See Varney v.
Look, 377 A.2d 81, 83 (Me. 1977) (holding that a "speculative possibility of some monetary
harm" to clam diggers caused by increased competition flowing from the issuance of
three hydraulic rake licenses was not sufficient to establish aggrievance); Christy's Realty
Ltd. P'ship v. Town of Kittery, 663 A.2d 59 (Me. 1995) (suggesting that "increased business
competition" is not sufficient to establish standing for an abutter, but finding that the
abutter had standing because of a different alleged injury).
The Law Court has only recognized increased competition as a sufficient basis for
standing when a relevant statute evidences an intent to protect the competitive interests
at stake. See Hammond Lumber Co. v. Fin. Auth. ofMe., 521 A.2d 283,287 (Me. 1987) (holding
that increased competition was sufficient to establish standing because the Finance
Authority of Maine was required by statute to consider and weigh adverse effects on
existing businesses before approving financing for a project); Bradbury Mem'l Nursing
1OPD also alleges that the issuance of a decision to Silver adversely impacts the transferability of OPD' s business because a new owner of the business at OPD' s location would not be eligible for a license due to Silver's proximity. This effect is more directly a result of the non-transferability of marijuana retail licenses (which requires all new owners of existing businesses to reapply for a license) and is not "fairly traceable" to the issuance of a license to Silver. See Collins v. State, 2000 ME 85, 'I[ 6, 750 A.2d 1257. This allegation warrants no further discussion.
Page4 of 5 Home v. Tall Pines Manor Assocs., 485 A.2d 634, 638 (Me. 1984) (holding that an increase in
competition caused by issuance of a certificate of need to a new nursing home was
sufficient to establish existing nursing home's standing because the Certificate of Need
Act reflected a legislative purpose to regulate competitive interests). This is not such a
case. OPD has not offered any convincing evidence of an intent to protect competitive
interests in the Cannabis Legalization Act, 28-B M.R.S. §§ 101-1504 (2022), or the
Ordinance, and none is apparent to the Court.
OPD has not demonstrated a particularized injury and, therefore, does not have
standing to pursue this appeal. The Petition must be dismissed.
B. OPD's Motions
OPD's Motion for Trial of the Facts and Motion to Consolidate Cases are moot
because the Petition is dismissed.
IV. Conclusion
For the foregoing reasons, the Court dismisses OPD's Petition for lack of standing.
The remaining pending motions are moot.
The entry is:
1. Party-in-Interest Silver Therapeutics of Portland, LLC's Motion to Dismiss is GRANTED. Old Port Development LLC's Petition is DISMISSED; and
2. Old Port Development LLC's Motion for Trial of the Facts and Motion to Consolidate Cases are DENIED AS MOOT.
The Clerk is directed to incorporate this Order into the docket by reference
pursuant to Maine Rule of Civil Procedure 79(a).
I ! I - iJ L-~1 I "-1"_:._·_ II' 1'1",..../, -=:"-"_:._-=-' Dated: _--1...++--'-"'"-.)'-"'' I '
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