J. BRADFORD BROOKS and LLOYD JENNINGS, as Trustees of the L&B REALTY TRUST, STAVROS DIMAKIS d/b/a MARK'S DELI, and STAVROS DIMAKIS as Trustee of EVTHOKIA REALTY TRUST vs. CITY OF HAVERHILL, HAVERHILL STEM, LLC, PINEAU PROJECTS, LLC, and THE WESTLAND GROUP LLC

Introduction

In 2018, the City of Haverhill amended its Zoning Ordinance to create the Licensed Marijuana Establishments Overlay Zone (LMEOZ). The LMEOZ establishes a zoning regime for allowing retail marijuana establishments by special permit and site plan review in various zones in the City. One of these is the Licensed Marijuana Establishments – Retail Sales Only (LME-RO) zone. It is located in an area of downtown Haverhill along the Merrimack River that is also located in subzones of two other zoning overlay districts: the Downtown Smart Growth Overlay District (DSGOD) and the Waterfront District, both of which are smart-growth districts promoting mixed-use development in that area. The private defendants have sought a special permit under the LMEOZ to operate a retail marijuana establishment. The plaintiffs, property and business owners in the same district, have challenged the validity of the LME-RO, and have moved for summary judgment; the City has cross-moved. As set forth below, the court finds that the LME-RO is consistent with the goals of the LMEOZ, the Waterfront District, and the LSGOD, bears a substantial relation to a valid legislative purpose, is not spot zoning, and is a valid exercise of the City's zoning power. The LMEOZ and the LME-RO will be upheld, and summary judgment shall enter in favor of the City and against the plaintiffs.

Procedural History

Plaintiffs filed their Verified Complaint on May 30, 2019. On June 6, 2019, the defendant City of Haverhill filed its Notice of Removal and removed this action to the United States District Court for the District of Massachusetts (District Court). On June 17, 2019, the plaintiffs filed their First Amended Verified Complaint (Complaint or Compl.) in the District Court, amending the Verified Complaint to strike any claim that the subject zoning ordinance is preempted by federal law. That day, the District Court issued its Order for Remand, remanding this action to the Land Court. The defendants Haverhill Stem, LLC, Pineau Projects, LLC, and The Westland Group, LLC filed their Answer on June 21, 2019. Defendant City of Haverhill filed its Answer on July 10, 2019. The case management conference was held on July 15, 2019.

The Plaintiffs' Motion for Entry of Summary Judgment Under Mass. R. Civ. P. 56 as to the Defendant City of Haverhill (Summary Judgment Motion), the Plaintiffs' Memorandum in Support of Their Motion for Summary Judgment, the Plaintiffs' Statement of Undisputed Material Facts in Support of Their Motion for Summary Judgment, and the Affidavits of Alvin S. Nathanson (Nathanson Aff.) and of Scott A. Schlager, Esq. (First Schlager Aff.), were filed on September 10, 2019. The City of Haverhill's Opposition and Cross Motion for Summary Judgment (Summary Judgment Cross Motion), its Memorandum in Support of City of Haverhill's Opposition to Plaintiffs' Motion for Summary Judgment and City's Cross Motion for Summary Judgment, and Plaintiffs' Statement of Undisputed Material Facts in Support of Their Motion for Summary Judgment; City of Haverhill's Responses and Additional Facts (with the incorporated Affidavit of William Pillsbury (Pillsbury Aff.)) were filed on October 11, 2019. Plaintiffs' (1) Opposition to the City of Haverhill's Cross-Motion for Summary Judgment and (2) Reply in Support Plaintiffs' Motion for Summary Judgment (with the incorporated Affidavits of Lloyd Jennings (Jennings Aff.) and of Scott A. Schlager, Esq. (Second Schlager Aff.)) was filed on October 18, 2019. The Consolidated Statements of Undisputed Fact and Responses Thereto Pertaining to Plaintiffs' and the City's Cross-Motions for Summary Judgment (Facts) was filed on October 28, 2019.

The court heard the cross-motions for summary judgment on October 29, 2019. At the hearing, the defendant City of Haverhill conceded that the plaintiffs have standing to bring this action. The private defendants stated that they take the City's position on these cross-motions. The Summary Judgment Motion and the Summary Judgment Cross-Motion were taken under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the "burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see Regis College, 462 Mass. at 291-292.

Facts

The following facts are undisputed:

1. Haverhill Stem, LLC (Stem) is a Massachusetts limited liability company that has proposed to open a recreational marijuana establishment at 124 Washington Street, Haverhill, Massachusetts (locus). Pineau Projects, LLC (Pineau Projects) is a Massachusetts limited liability company that is the management company for Stem. The Westland Group, LLC (Westland) is a Massachusetts limited liability company. It owns the locus, and has the leased the locus to Stem. Facts ¶¶ 2, 8-10.

2. J. Bradford Brooks and Lloyd Jennings, as Trustees of the L&B Realty Trust (L&B), own the property located at 128-130 Washington Street, Haverhill, Massachusetts (L&B property). The L&B property consists of a mixed-use building, containing both housing and a restaurant known as the "Hidden Pig," and is located next door to the locus. Facts ¶¶ 1-2.

3. Stavros Dimakis (Dimakis), as Trustee of Evthokia Realty Trust (Evthokia), owns the property at 2 Railroad Square, Haverhill, Massachusetts (Evthokia property). Dimakis operates a restaurant called "Mark's Deli" at the Evthokia property. The Evthokia property is within 300 feet of the locus. Facts ¶¶ 4-5.

4. The City of Haverhill (City) is a municipal corporation duly organized under the laws of the Commonwealth of Massachusetts. The City Council adopted the City's Zoning Ordinance on December 7, 1971 (Ordinance). The Ordinance has been amended on multiple occasions, including the amendments that are the subject of this action. Facts ¶¶ 7, 11; Nathanson Aff. Exh. A (hereinafter, Ordinance or Ord.).

5. The area in which the locus, the L&B property, and the Evthokia property are located is within several use and overlay zones under the Ordinance: the DSGOD, the Waterfront District, and the LMEOZ. Each of these provisions creates subzones. The properties are all within Subzone A of the DSGOD and Sub-Zone A of the Waterfront District, which have the same boundaries, and the LME-RO zone of the LMEOZ. Facts ¶¶ 30, 38, 39; Ordinance Arts. XIV, XVI, XIX; Pillsbury Aff. ¶¶ 7-8.

6. After extensive planning studies by the Haverhill Department of Economic Development & Planning (Haverhill EDP) and consultation with the Commonwealth's Department of Housing and Community Development, the DSGOD was added to the Ordinance by an amendment dated December 19, 2006. The purpose of the DSGOD is "to encourage smart growth in accordance with the purposes of MGL Chapter 40R, and to foster a range of housing opportunities along with a mixed use development component." It sets forth a series of other general objectives, including "encouraging diversity of housing opportunities," providing for "a full range of housing choices for households of all incomes, ages, and sizes," establishing "development standards to allow context-sensitive design and creative site planning," and enabling the City to take advantage of incentive and density bonus payments under G.L. c. 40R and 40S and 760 CMR 59.06. Ordinance Art. XIV, §255-120; Pillsbury Aff. ¶¶ 3-4.

7. In Subzone A of the DSGOD, the following uses are allowed as of right: multifamily development; mixed use development where at least 75% of the gross floor area is residential and not more than 5% of the gross floor area is nonresidential and is located on the first floor only; parking; open space and recreation; and accessory uses. The nonresidential uses allowed in a mixed-use development are professional offices; retail, business, and consumer service establishments; commercial and financial services; and eating and drinking establishments. Ordinance § 255-124.

8. After extensive planning studies conducted by Haverhill EDP, the City adopted the Waterfront District amendment to the Ordinance on January 7, 2014. The Waterfront District is described as "a comprehensive zoning district for the City's waterfront area." Among its "major objectives" are promoting public access, view corridors, and physical and visual connections of and to the Merrimack River; regaining an active waterfront; creating "development nodes in order to plan for a comprehensive waterfront;" creating "diversity of housing opportunities along the waterfront and within the downtown;" creating an artist community and promoting "artist live/work space in the downtown and along the waterfront;" creating "a retail and restaurant base that downtown residents can utilize;" ensuring that "existing and future development contributes to a continuous and active street that addresses the contextual, human-scale, mixed-use, and pedestrian-friendly needs of the downtown;" and encouraging reuse and rehabilitation of existing buildings, infill housing, redevelopment of vacant or underutilized land, and neighborhood and cultural tourism. Ordinance §§ 255-154.A, D; Pillsbury Aff. ¶¶ 5-6.

9. The Waterfront District establishes sub-zones. As discussed, Sub-Zone A has the same boundaries as Subzone A of the DSGOD. The goal of Sub-Zone A "is to meet the objectives as set forth in the existing [DSGOD], particularly the creation of affordable housing. Sub-Zone A will follow the standards and requirements of the" DSGOD. Ordinance § 255-157.A. There are a series of design guidelines that "apply to development in the entire district." Among these, in relevant part, are: "Retail, restaurant and other lively pedestrian-friendly uses are encouraged, particularly on the ground floor, except in Sub-Zones E, F, G and H where projects providing 100% residential development are encouraged;" and "[r]esidential and office space shall be placed on upper floors, not on the first floor or street level, except in Sub-Zones E, F, G and H where projects providing 100% residential development are encouraged." Ordinance §§ 255-158.A, B.

10. Among the uses permitted in Sub-Zone A as of right (with site plan review) or by special permit are: mixed-use structures with two or more dwelling units; multifamily dwellings; artist live/work units; art galleries and/or workspace; first-floor retail uses of 3,000 square feet or less; retail uses primarily serving the local retail businesses or the neighborhood, including but not limited to barber/beauty shops, shoe repair shops, self-service laundries, dry cleaning, or tailor shops; retail uses selling, but not limited to, food, baked goods, groceries, clothing, dry goods, books, art, flowers, paint, hardware, and minor household appliances; non-drive-through restaurants, coffee shops, and diners with outdoor seating; bars and cocktail lounges; ice cream shops; banks; hotels and inns; general office uses; and professional offices. Ordinance § 255-159; Pillsbury Aff. ¶ 6, Exh. A.

11. By an amendment added on November 18, 2014, the Medical Marijuana Overlay District (MMOD) was added to the Ordinance. The MMOD provides for the placement of registered marijuana dispensaries in accordance with the Humanitarian Medical Use of Marijuana Act, G.L. c. 94C. It does not include any of Subzone A of the DSGOD, Sub-Zone A of the Waterfront District, or the LME-RO zone of the LMEOZ. Ordinance Art. XVII; Pillsbury Aff. ¶ 12, Exh. C.

12. The City Council voted to adopt the LMEOZ on January 30, 2018; the LMEOZ was amended to its current form on January 15, 2019. The LMEOZ states as its purposes (a) to provide for "the placement of adult use marijuana establishments in appropriate places and under specific conditions" in accordance with G.L. c. 94G; (b) to "minimize any adverse impacts of adult use marijuana establishments on adjacent properties, dense or concentrated residential areas, school and other places where children congregate, and other sensitive land uses;" (c) to "regulate the siting, design, placement, access, security, safety, monitoring, modification and discontinuance of adult use marijuana establishments;" and (d) to "provide applicants, owners and operators with clear guidance regarding adult use marijuana establishments siting, design, placement, access, security, safety, monitoring, modification and discontinuance." Facts ¶ 39; Ordinance Art. XIX, §255-196.

13. The LMEOZ provides that no adult use marijuana establishment may be permitted except in compliance with its provisions. The LMEOZ creates four kinds of overlay zones; as discussed, the locus is in the LME-RO, or Licensed Marijuana Establishments – Retail Sales Only, zone. Ordinance §§255-198.A, 255-199.A; Facts ¶ 39.

14. The LMEOZ requires a special permit for any marijuana establishment and sets forth design requirements, site plan review, and special permit requirements. Prior to the issuance of a special permit, an applicant must have entered a host community agreement with the City Council. Ordinance §§255-201-205, 209.E.

15. The LMEOZ provides for a 500-foot buffer zone between any marijuana establishment and schools, childcare facilities, parks, churches, libraries, playgrounds, and youth centers, except for in the Waterfront District Area. The effect of this provision is that there is no buffer zone requirement for marijuana establishments in the Waterfront District, including in the LME-RO zone in which the locus lies. Applicants seeking to establish a marijuana establishment within the Waterfront District must notify adjacent property owners and preexisting childcare facilities, churches, or youth centers within 300 feet of the proposed site. Ordinance §§255- 199.B, C.

16. No marijuana establishment shall be located within ½ mile of another marijuana establishment. The City Council may modify or waive this requirement. Ordinance §255-199.D.

17. The City entered a Host Community Agreement with Stem on December 28, 2018, for a marijuana establishment at the locus. Facts ¶ 17; Nathanson Aff. ¶ 4, Exh. B.

18. There are no schools in Sub-Zone A of the Waterfront District. There are two parks within 500 feet of the locus. There is a dispute of fact over whether children use these parks. Facts ¶¶ 3, 41; First Schlager Aff. ¶ 20, Exh. 18; Jennings Aff. ¶¶ 9-11; Second Schlager Aff. ¶ 3.

Discussion

Standing.

The plaintiffs have brought two claims challenging the LMEOZ, one pursuant to G.L. c. 240, §14A, and the other under the declaratory judgment statute, G.L. c. 231A, §1, et seq. At the hearing on the cross-motions, the City conceded that the plaintiffs have standing to bring these claims. The court cannot rest on the City's concession; standing is a question of subject matter jurisdiction, and cannot be waived. Warrington v. Zoning Bd. of Appeals of Rutland, 78 Mass. App. Ct. 903 , 904-905 (2010). Still, the City was correct to concede, at least as to L&B and most likely as to Evthokia and Dimakis, that the plaintiffs have standing to bring their claim under §14A. Section 14A authorizes a petition by a landowner to challenge a zoning enactment that applies to another's land. Harrison v. Town of Braintree, 355 Mass. 651 , 655 (1969). Standing to bring such an action is to be broadly construed and the rigorous standard for a "person aggrieved" that arises under G. L. c. 40A, §17, does not apply to plaintiffs who challenge the validity of a zoning regulation or amendment under §14A. Id. at 654-655; Van Renselaar v. Springfield, 58 Mass. App. Ct. 104 , 107 (2003). For purposes of their standing to challenge a zoning ordinance or by-law, "it is sufficient for . . . plaintiffs to have established that they will suffer an adverse impact from the legislative zoning action, without establishing, in addition, that their injury is special and different from the concerns of the rest of the community." Van Renselaar, 58 Mass. App. Ct. at 107. Because the L&B property directly abuts the locus, an inference could be drawn in L&B's favor that Stem's operation of a recreational marijuana establishment at the locus would have a direct effect on L&B, giving it standing to challenge the LMEOZ under §14A. See Hanna v. Town of Framingham, 60 Mass. App. Ct. 420 , 422-424 (2004) (plaintiff-neighbor had standing under G. L. c. 240, §14A where he "submitted an affidavit of a traffic engineer, asserting that the plaintiff's property . . . 'will be significantly negatively impacted' by the defendant's proposed development of [nearby] locus"); Powers v. Town of Falmouth, 23 LCR 464 , 467 (2015), aff'd, 89 Mass. App. Ct. 1134 (2016) (plaintiffs had standing under the "more relaxed standard" of §14A to contest a zoning amendment where the plaintiffs owned land immediately north and to the west of the rezoned property). While the Evthokia property is farther away from the locus — within 300 feet — a similar inference could be drawn in favor of Evthokia and Dimakis. While this inference cannot support summary judgment in plaintiffs' favor on their standing, it is sufficient to allow the court to move on to consider whether the plaintiffs are entitled to summary judgment on the merits of the amended complaint. See Franson v. City of Woburn, 24 LCR 557 , 560 (2016).

Merits.

The plaintiffs claim that the LME-RO zone of the LMEOZ is invalid because it is arbitrary and unreasonable and substantially unrelated to the public health, safety, or general welfare, and constitutes spot zoning. The test for whether a zoning ordinance is a valid exercise of a municipality's zoning authority under G.L. c. 40A and the Massachusetts constitution "is whether [the] zoning [ordinance] is 'clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.'" Zuckerman v. Town of Hadley, 442 Mass. 511 , 516 (2004), quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926). "Every presumption is made in favor of the [ordinance], and, if its reasonableness is fairly debatable, it will be sustained." Sturges v. Town of Chilmark, 380 Mass. 246 , 256 (1980); see National Amusements, Inc. v. City of Boston, 29 Mass. App. Ct. 305 , 309 (1990). The court must accord deference to a municipality's legislative choices; the municipality can adopt any zoning provisions that are permissible under the constitution and G.L. c. 40A. W.R. Grace & Co.-Conn. v. Cambridge City Council, 56 Mass. App. Ct. 559 , 566 (2002).

On cross-motions for summary judgment like these, the burden is on the City to make a prima facie showing of a rational reason for enacting the zoning amendment. Id. at 567. Once this showing is made, the plaintiffs have "the heavy burden" of showing by a preponderance of the evidence that the zoning amendment conflicts with applicable constitutional and statutory provisions; that is, that it is not even fairly debatable that the amendment bears a substantial relation to a valid legislative purpose. Sturges, 380 Mass. 246 ; Andrews v. Town of Amherst, 68 Mass. App. Ct. 365 , 369 (2007); W.R. Grace & Co.-Conn., 56 Mass. App. Ct. at 571-572.

Applying this standard, it is important to identify just what the plaintiffs claim is invalid about the LME-RO zone of the LMEOZ. They do not, and cannot, challenge the City's authority to enact a zoning amendment that permits and regulates recreational marijuana uses. In 2016, the voters of the Commonwealth voted YES to Question 4, authorizing the legalization, regulation, and taxation of recreational marijuana in Massachusetts, and the legislature subsequently enacted G.L. c. 94G. General Laws c. 94G, §3(a), expressly give municipalities the authority to permit and regulate recreational marijuana, and that authority necessarily includes using their zoning powers under G.L. c. 40A as part of that regulation. Nor do the plaintiffs challenge the entire LMEOZ. The LMEOZ creates specific zones in which different kinds of recreational marijuana establishments are permitted and sets up a special permit and site plan review process for the approval of recreational marijuana establishments in the permitted zones. Such a zoning scheme is hardly unusual. See G.L. c. 40A, §§4, 9, 11. Nor do they challenge the uses permitted in the four different zones of the LMEOZ - the no retail sales in the LME-NR, the full range of recreational marijuana uses in the LME-NE and the MMOD, and the retail sales only use in the LME-RO. Ordinance §255-1999.A.

What the plaintiffs challenge is the placement of the LME-RO in Sub-Zone A of the Waterfront District and Subzone A of the LSGOD, and the provisions eliminating any buffer zone requirement for the LME-RO in the Waterfront District, requiring notice to adjacent property owners, childcare facilities and churches, and barring any licensed marijuana establishment within ½ mile of another licensed marijuana establishment. The first step in the analysis on these cross-motions is to determine whether the City has made a prima facie showing of a rational reason for placing the LME-RO in the Waterfront District. W.R. Grace & Co.-Conn., 56 Mass. App. Ct. at 567. The City maintains that it was rational and appropriate to locate the LME-RO in Sub-Zone A of the Waterfront District. That Sub-Zone, and the entire Waterfront District, is in a dense downtown area that provides for a mix of business and residential uses. Business uses of right include a variety of retail uses such as the sale of food, groceries, clothing, dry goods, books, hardware, and others; art galleries; coffee shops, bars, and cocktail lounges; offices; and consumer services. Pillsbury Aff. Exh. A. The photographs submitted by the plaintiffs confirm that the Waterfront District is dense and consists of much ground-floor retail and commercial use with residential units above. First Schlager Aff. Exhs. 1, 2, 5, 6, 7, 8, 16; Jennings Aff. Exhs. B, C; Second Schlager Aff. Exh. 2, 3. In fact, the plaintiffs' own properties — the L&B property and the Evthokia property - are mixed-use properties that are used in part for ground-floor businesses. Facts ¶¶ 1, 2, 4, 5. The placement of a retail marijuana sales establishment in such a dense, downtown, mixed-use district is not, on its face, irrational.

The analysis now turns to whether the plaintiffs have met their heavy burden to show that the location of the LME-RO in Sub-Zone A of the Waterfront District and Subzone A of the LSGOD conflicts with applicable constitutional and statutory provisions; that is, that it is not even fairly debatable that the LME-RO provisions bear a substantial relation to a valid legislative purpose. Sturges, 380 Mass. 246 ; Andrews, 68 Mass. App. Ct. at 369; W.R. Grace & Co.-Conn., 56 Mass. App. Ct. at 571-572. The plaintiffs assert that the elimination of the buffer zone in the LME-RO contravenes the purpose of the LMEOZ to "minimize any adverse impacts of adult use marijuana establishments on adjacent properties, dense or concentrated residential areas, [and] . . . other places where children congregate" and contradicts the buffers that are provided for in the MMOD and the other zones of the LMEOZ. Ordinance §§255-196.B, 255-199.B. Further, they claim, the provision requiring notice to abutters and childcare providers in the LME-RO is nonsensical. Ordinance §255-199.C. They argue that the LME-RO does not further the goals of Sub-Zone A and Subzone A, namely, the promotion and protection of housing. They claim that the LME-RO was enacted and put in place with no review or study of adverse impacts on the surrounding neighborhood. Finally, they argue that the LME-RO constitutes spot zoning in favor of the locus and Stem's proposed recreational marijuana establishment at the locus, as the requirement that no recreational marijuana establishment be located within ½ mile of another one means that no other facility besides Stem's can be located in the LME-RO. Ordinance § 255-199.D. The court addresses these claims in turn.

a. Goals of the LMEOZ.

The location of the LME-RO within Sub-Zone A of the Waterfront District and Subzone A of the LSGOD implicates the goals and purposes of all three relevant articles of the Ordinance - the LMEOZ, the Waterfront District, and the LSGOD. The plaintiffs first assert that not providing for a buffer zone within the LME-RO contravenes the purposes of the LMEOZ. They point specifically to the purpose of the LMEOZ to "minimize any adverse impacts of adult use marijuana establishments on adjacent properties, dense or concentrated residential areas, . . . and other places where children congregate." Ordinance §255-196.B. The LMEOZ serves this purpose in a number of ways. It provides for special permit and site plan review for any marijuana establishment, a process that allows the City Council (the special permit granting authority) to review the proposal to make sure it minimizes adverse impacts. Ordinance §§255-201, 202. It imposes limitations on operations and hours, as well as design requirements for the buildings in which the establishment operates. Ordinance §§255-203, 204. It requires licensing from the Commonwealth, proof of site control, a traffic study, odor control, and a security plan. Ordinance §255-205. It requires annual inspections to ensure compliance with the Ordinance and any conditions of the special permit. Ordinance §255-208. In short, the many requirements of the LMEOZ are intended to support its purposes to provide for the placement of recreational marijuana establishments in appropriate places, regulate the siting, design, and placement, and minimize adverse impacts. Ordinance §255-196.

It is correct that buffer zones can also serve to minimize adverse impacts. The City has recognized this in requiring buffer zones in the other LMEOZ use districts, including the MMOD. But the fact that the City placed buffer zones in other use districts does not mean that buffer zones must be placed in all use districts. The Waterfront District in which the LME-RO district is placed is a denser, mixed-use area with more business and less residential uses than other parts of the City. There are no schools in the area, and it is a reasonable judgment that the parks in the area, while used by children, are smaller urban parks that do not present the same risks as larger playgrounds. Pillsbury Aff. ¶ 11. It is a reasonable and rational zoning decision to decide that, given the other protections against adverse impacts in the LMEOZ and the greater number of commercial uses and fewer residences in Sub-Zone A of the Waterfront District, a buffer zone is not necessary in the LME-RO district.

The notification requirement provides that in the LME-RO in the Waterfront District, applicants must provide notice to adjacent property owners and preexisting childcare facilities, churches, and youth centers within 300 feet. Ordinance §255-199.C. While the plaintiffs call this provision "nonsensical," it appears to be a reasonable alternative to a buffer zone. It allows parties who might be affected by a marijuana establishment in the LME-RO to have early notice of the proposal and bring their concerns to the applicant and to the City Council. This notice provision is broader than the notice required under G.L. c. 40A, §11, as it provides for notice to properties within 300 feet that are not "abutters to the abutters." Id. In other words, it is "fairly debatable" that not having any buffer zone in the LME-RO, but rather requiring broader notice to the kinds of persons and properties for whom adverse impacts should be minimized under the LMEOZ, bears a substantial relation to a legitimate legislative purpose. Sturges, 380 Mass. at 256.

b. Goals of the Waterfront District and LSGOC.

As discussed, the LME-RO is located within Sub-Zone A of the Waterfront District and Subzone A of the LSGOD, which cover the same area. The plaintiffs argue that the LME-RO does not further the goals of Sub-Zone A and Subzone A, which, they allege, are the promotion and protection of housing. This requires an examination of the goals of the two subzones and the broader goals of the Waterfront District and the LSGOD.

The LSGOD was enacted in 2006 for the express purpose of encouraging "smart growth in accordance with the purposes of MGL Chapter 40R." Ordinance §255-120. Chapter 40R sets forth its purposes as follows:

It is the purpose of this chapter to encourage smart growth and increased housing production in Massachusetts. Smart growth is a principle of land development that emphasizes mixing land uses, increases the availability of affordable housing by creating a range of housing opportunities in neighborhoods, takes advantage of compact design, fosters distinctive and attractive communities, preserves open space, farmland, natural beauty and critical environmental areas, strengthens existing communities, provides a variety of transportation choices, makes development decisions predictable, fair and cost effective and encourages community and stakeholder collaboration in development decisions.

G.L. c. 40R, §1. The DSGOD goes on to list other objectives geared towards the promotion and provision of diverse housing opportunities. Ordinance §§255-120.A-D. Towards these goals, the DSGOD creates several subzones. Subzone A allows as of right multifamily development and mixed-use development. Ordinance §§125-124.A, B. Mixed use development is defined as structures with at least 75% of the floor area devoted to residential uses and not more than 5% of the gross floor area as nonresidential with all nonresidential uses on the ground floor. Ordinance §125-124.B. The as-of-right nonresidential uses are professional offices, retail, business and consumer service establishments, commercial and financial services, and eating and drinking establishments. Ordinance §255-124.C. Thus, the intent of the LSGOD generally, and Subzone A in particular, is not only to promote housing but also to promote smart growth development that includes a mix of housing (including affordable housing) and commercial uses in compact design that fosters community.

The Waterfront District, enacted in 2014, was intended to revitalize the City's waterfront area along and around the Merrimack River. Ordinance §255-154. Among its major objectives are to promote access, view corridors, and physical and visual connections between the river and downtown Haverhill; create development nodes; create diversity of housing opportunities along the waterfront and within the downtown; create a retail and restaurant base that downtown residents can utilize; facilitate development of a mix of uses that contributes to a vibrant business environment and increases street level activity; and encourage human-scale, pedestrian-friendly development and reuse of existing buildings and underused land. Ordinance §255-154.D.

The Waterfront District is divided into sub-zones that have their own specific standards and encourage uses appropriate to that subzone. Ordinance §255-154.C. Sub-Zone A is coextensive with Subzone A of the LSGOD. "The goal of this sub-zone is to meet the objectives as set forth in the existing [LSGOD], particularly the creation of affordable housing. Sub-Zone A will follow the standards and requirements of" the LSGOD. Ordinance §255-157.A. Thus, for Sub-Zone A and Subzone A, the objectives of the LSGOD control, but are informed by the purposes of the Waterfront District.

Contrary to the plaintiffs' description, those objectives are not solely the promotion of housing. Smart growth, the underlying principle of the LSGOD and of G.L. c. 40A, promotes the concept of mixed-use development, in which structures have both residential and commercial uses. Mixed-use development is explicitly defined in the Waterfront District as the "use of a building for more than one use. The building contains a commercial use or uses on the first floor or ground floor and residential use on the upper floors." Ordinance §255-156. That definition is implicitly adopted in the LSGOD, where it allows as of right in Subzone A mixed-use development with ground-floor commercial uses and residential uses on the other floors. Ordinance §§255-124.B, C. While more regulated than a coffee shop or a grocery store, retail marijuana establishments are a retail use. The placing of the LME-RO in Subzone A is fully consistent with an objective of promoting mixed-use development.

c. Review and Study.

The plaintiffs further maintain that the LME-RO is invalid because it was enacted and put in place with no review or study of what adverse impacts the elimination of the buffer zone would have on the surrounding neighborhood. There is no evidence in the record of the City or the City Council having undertaken review or study of the impacts of the LME-RO generally or, in particular, of not having a buffer zone in the LME-RO district. Haverhill EDP undertook planning studies in preparing the DSGOD and the Waterfront District. Pillsbury Aff. ¶¶ 4, 6. As discussed, the LME-RO is consistent with the objectives of the subzones of the Waterfront District and the LSGOD, and consistent with the actual mix of business and residential uses in the subzones.

More generally, there is no requirement that the City must have undertaken formal studies for the LME-RO to pass muster. When there is a question of a zoning provision's rationality or connection to legitimate statutory purposes, evidence of a municipality's analysis of land use considerations can help overcome any objections and establish the legitimacy of the ordinance. See, e.g., Rando v. Town of North Attleborough, 44 Mass. App. Ct. 603 , 612 (1998) (evidence of analysis by town officials sufficient to overcome claim of spot zoning); National Amusements, Inc., 29 Mass. App. Ct. at 310 (failure to show any analysis fatal to ordinance that on its fact and by evidence bore no relationship to stated reasons for its enactment). But a municipality is not required to conduct a study before adopting a zoning provision. See W.R. Grace & Co.-Conn., 56 Mass. App. Ct. at 568-569 (city not required to conduct study before adopting moratorium). If the zoning provision is, on its face, a legitimate exercise of the municipality's authority under c. 40A and the police power generally, no study is needed to establish its legitimacy.

That is the situation here. As discussed, the LME-RO is a legitimate and rational exercise of the City's land use planning authority. Given the LME-RO's location in a small, dense, downtown mixed-use area with many commercial and retail uses, as well as residential uses, with no schools and small parks, it was not unreasonable to, in effect, trade a buffer zone requirement that would have made it virtually impossible to locate any retail marijuana establishment without being too close to a park for a notice requirement.

d. Spot Zoning.

Finally, the plaintiffs argue that the LMEOZ's not having a buffer zone in the LME-RO district and its provision that no marijuana establishment shall be located within ½ mile of another licensed marijuana establishment constitute spot zoning in favor of Stem and its operation of a retail marijuana establishment at the locus. Ordinance §§255-199.B, D. "Spot zoning occurs when there is a 'singling out of one lot for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot." Rando, 44 Mass. App. Ct. at 606, quoting Whittemore v. Building Inspector of Falmouth, 313 Mass. 248 , 249 (1943). Whether the LMEOZ and the LME-RO constitute spot zoning "turns not on what parcel has been singled out, or even the effect on the parcel, but rather whether the change can fairly be said to be in furtherance of the purposes of the Zoning Act." W.R. Grace & Co.-Conn., 56 Mass. App. Ct. at 369. The analysis is similar to that conducted above in determining the validity of the LME-RO. The provision is given every presumption in its favor, and the plaintiffs face the heavy burden of showing that the provision is arbitrary and unreasonable. If the provision's reasonableness is even fairly debatable, it must stand. Johnson v. Edgartown, 425 Mass. 117 , 121 (1997); Crall v. Leominster, 362 Mass. 95 , 101-102 (1972); Andrews, 68 Mass. App. Ct. at 369; National Amusements, Inc., 29 Mass. App. Ct. at 309; see Bellis Circle, Inc. v. City of Cambridge, 21 LCR 373 , 376-377 (2013), aff'd, 86 Mass. App. Ct. 1105 (2014).

The LME-RO and its lack of a buffer zone do not constitute spot zoning in favor of the locus. First, it is not at all evident that the locus has been singled out for favorable treatment in the LME-RO. The LME-RO was enacted as a zoning district covering multiple properties in the Waterfront District, not just the locus. The half-mile requirement applies in all zones of the LMEOZ. That there may be no other location within the LME-RO that is more than ½ mile from the locus does not change the generality of the provision. Moreover, the ½ mile limit may be modified or waived by the City Council, ameliorating any benefit that may accrue to Stem.

Whether the City Council enacted these provisions with the intention of benefiting Stem's retail marijuana establishment is irrelevant. "A court should not invalidate a legislative decision of a town based upon the alleged motive the town had in enacting the legislation. If the action is otherwise justified, the actual reason for the enactment, not to mention the motivation of the sponsors of the action, is not relevant" Andrews, 68 Mass. App. Ct. at 368 (citation omitted). What matters is whether the LME-RO can reasonably be said to be in furtherance of the purposes of c. 40A and the police power. As discussed above, it is more than fairly debatable that the LME-RO, including its lack of a buffer zone and ½ mile requirement, furthers legitimate zoning purposes and is not arbitrary and unreasonable. The City Council, acting in its legislative capacity, enacted the LMEOZ and the LME-RO zone. In essence, the plaintiffs' claim is that these provisions are "poor land use planning, enacted with insufficient study. But given the broad authority of municipalities to legislate zoning changes and the deference to which such legislative decisions are entitled, poor planning is not the same as spot zoning." Bellis Circle, 21 LCR at 377.

The remedy for the plaintiffs is through the democratic process in the City of Haverhill. Here, based on the undisputed facts, they have failed to meet their "the heavy burden" of showing by a preponderance of the evidence that the zoning amendment conflicts with applicable constitutional and statutory provisions; that is, that it is not even fairly debatable that the amendment bears a substantial relation to a valid legislative purpose. Sturges, 380 Mass. 246 ; Andrews, 68 Mass. App. Ct. at 369; W.R. Grace & Co.-Conn., 56 Mass. App. Ct. at 571-572. The LMEOZ and the LME-RO are valid exercises of the City's zoning authority under G.L. c. 40A and the police, and must stand.

Conclusion

For the foregoing reasons, the Summary Judgment Motion is DENIED and the Summary Judgment Cross Motion is ALLOWED. Judgment shall enter (a) declaring that the LMEOZ, including the LME-RO district, bears a substantial relation to a valid legislative purpose and is a valid and legitimate exercise of the City's authority under G.L. c. 40A, and (b) dismissing the First Amended Verified Complaint with prejudice.

SO ORDERED