KITTERY, Maine — The state’s highest court has spoken: A challenge against the town of Kittery’s issuance of a marijuana shop license to Green Truck Farms should be tried again in York County Superior Court.
The Maine Supreme Judicial Court on Thursday ruled in favor of High Maine LLC, of Eliot, and its complaint that the town of Kittery should not have awarded Green Truck Farms a business license.
In January, the York County Superior Court dismissed High Maine LLC’s complaint against the town, which held a random lottery draw for its cannabis shop license application process in October 2021. High Maine LLC appealed to the Supreme Judicial Court after the York County Superior Court granted the town’s motion to dismiss.
“Its complaint challenged the Town of Kittery’s issuance of a marijuana retail store license and approval of a change of use and modified site plan for GTF Kittery 8, LLC, to operate a marijuana retail store in the Town’s (Commercial 2) zone,” the Supreme Judicial Court’s Thursday ruling states. “Because we agree with High Maine that the complaint’s allegations were sufficient at the motion to dismiss stage to demonstrate its standing, we vacate the judgment of the Superior Court and remand for further proceedings.”
PretiFlaherty lawyer Cameron Ferrante is representing the town of Kittery in the matter.
“It’s a disappointment,” he said Friday of the Supreme Judicial Court ruling. “We were hoping it would just be resolved at the law court level but we’re prepared to defend the town at the Superior Court level.”
Attorneys for High Maine argued the company had suffered a “particularized injury” in the town’s license lottery, where it fell behind pre-applications submitted on behalf of Green Truck Farms.
Previously:Here’s why Kittery is being taken to Maine’s highest court over cannabis shop license
Founded in North Berwick in 2015, Green Truck Farms was not selected at random to immediately apply for a cannabis business license in Kittery during the October 2021 lottery. After being placed on the waitlist, Green Truck Farms was later invited to apply after the original selectee, Theory Wellness, withdrew its application.
Kittery made $500,000-plus on lottery
Hundreds of companies, including High Maine LLC, entered the October 2021 lottery for cannabis business licensure. Applicants were required to pay $750 for each entry to the lottery and companies were able to enter an unlimited number of pre-applications to the lottery, all for a chance to be selected at random. The town lottery saw 700-plus entries come in, raising more than $535,000 for the municipality’s general fund.
The lottery resulted in three applicants being invited to apply for a license in three separate town zoning districts after being drawn from a raffle drum first. The lottery also established a waitlist for each of the three zoning districts, which is where both Green Truck Farms and High Maine LLC ended up. However, an application from Green Truck Farms ended up first up on the Commercial 2 zone waitlist, and the company moved forward with a land-use application to run an adult-use retail store after Theory Wellness dropped its plan.
High Maine alleged the town eventually “improperly awarded” Green Truck Farms with a business license, while the town claimed High Maine presented an argument that lacks “standing,” per past briefs filed in the matter. High Maine’s attorneys stated Green Truck Farms’ proposed location on Route 236 in Kittery was too close to Great Beginnings 3, a child care business.
Attorneys for the town filed a brief in the case in June.
“High Maine does not have standing to appeal the Town’s actions,” the June brief reads. “It has no personal, property or pecuniary interest in either its license pre-application or its relative position on the Town’s waiting list and it has not suffered anything more than abstract or hypothetical injuries as a result of the Town’s actions.”
The Supreme Judicial Court wrote Thursday that a total of 52 pre-applications were submitted for the 89 Route 236 building that Green Truck Farms applied to locate its business within. The commercial unit was previously used by Green Truck Farms as a cannabidiol (CBD) boutique.
The high court noted a total of 26 “GTF” entities applied for the lottery, with each submitting an application to open a marijuana store on the first floor of the 89 Route 236 building, and another application seeking to open a pot shop on the building’s second floor.
High Maine LLC’s complaint alleged that Green Truck Farms began working to open a “marijuana retail store in a building in which it is illegal to operate under state law,” the Supreme Judicial Court said.
“Success on its complaint could therefore potentially bring High Maine’s pre-application to a significantly better position in relation to the other pre-applications on the waiting list,” the high court said.
The Supreme Judicial Court ruling added Green Truck Farms may have “obtained an unfair advantage in the lottery by submitting two applications (one for the first floor and one for the second floor) for a location that, as merged in the site plan review process, became approved as a single, two-floor location.” Thus, High Maine argues, Green Truck Farms was attempting to double its chance of being selected first in the October 2021 lottery in every one of its entries.
The reasoning was enough for the Supreme Judicial Court to rule in favor of High Maine.
“Pre-applicant High Maine has alleged defects in the process that resulted in a particularized injury to it that is separate and distinct from any harm to the public at large,” the Supreme Judicial Court’s Thursday opinion adds. “Because the complaint’s allegations are thus adequate to support High Maine’s standing, we vacate the judgment dismissing the complaint and remand for further proceedings.”
Kittery Town Manager Kendra Amaral declined to comment.
What happens next in Kittery pot shop license case
According to Ferrante, the town’s lawyer, it could take a minimum of three months for both parties to present briefs and conduct pre-hearing business before the matter is scheduled again in York County Superior Court.
“We’re disappointed that the court ruled as it did,” he said of the Supreme Judicial Court. “From our perspective, the town’s perspective, we don’t believe there have been any errors in the process.”
Oral arguments in the case before the Maine Supreme Judicial Court were held Sept. 10 in Portland.
Green Truck Farms is not a defendant in High Maine’s challenge against the town of Kittery. Company founder and owner Joshua Seymour did not respond to a request for comment Friday afternoon.
The Maine attorney general’s office opened an investigation into the town’s lottery license process in early 2022 for potential “unlawful gambling,” though it later decided not to take any legal action against Kittery.
