WESTFIELD – The owner of two variety stores has initiated a suit charging that the city overstepped its authority when it created an ordinance empowering the Planning Board to deny a special permit for a wine and malt license at the two stores.
Store owner Laura L. Parker of Southwick had petitioned the Planning Board to approve a special permit required to sell beer and wine at the New Corner Variety store at the intersection of Montgomery and Crown streets and at the Pleasant Street Market on Pleasant Street at the intersection of West Silver Street.
The Planning Board at its Aug. 18 meeting used its discretionary authority to deny both special permits by votes of 3-3. A special permit requires a super majority, five affirmative votes, of the seven-member board.
Attorney Bradford B. Moir filed the suit with the Land Court Division on Sept. 14, 2015 naming the City of Westfield and the six Planning Board members, individually and collectively as the Planning Board. The City Clerk was served with the legal documents on Sept. 17, 2015.
The License Commission, which is the local agent of the state Alcoholic Beverage Control Commission, initially slated a public hearing on the two wine and malt license petitions requested by Parker at its Aug. 3, 2015 session, but took no action after a review of the City Code of Ordinances found that a special permit, issued by the planning Board, was required before the License Commission could act on the wine and malt license petition.
The delay of the License Commission review of wine and malt license petition is due to a zoning regulation, adopted in 1990, which requires a special permit review by the Planning Board for any business selling alcoholic beverages within 500 feet of a school or church.
The city zoning regulation, under IV., General Use Regulations, states: No permit shall be issued for the erection, enlargement or conversion of a structure utilized for the purpose of selling or service alcoholic beverages which is situated within five hundred (500) feet, measured by a direct line from entrance to entrance, of any lot used for a church or a public and/or parochial school primarily intended for the education of students in Grades K through 12, unless a special permit has been obtained from the Planning Board. Said permit shall be obtained from the Planning Board before application is made for any other permit in connection with the proposed erection, enlargement or conversion. (Adopted 02/15/90)
Moir said Thursday that the suit is similar to a recent case before the state’s Supreme Judicial Court in which the City of Lynn had established local zoning regulations, pertaining to where sex offenders could live, which were far more stringent that laws established by the General Court of the state Legislature.
The SJC ruling in the Lynn case states:
“The totality of the 1999 statutory scheme, incorporating as it does a series of interdependent policies and practices specifically designed to protect the public from level two and level three sex offenders by monitoring and notification to the public evinces the Legislature’s intent to have the first and final word on the subject of residency of sex offenders.”
“The Commonwealth of Massachusetts has comprehensive laws and regulations governing and controlling the sale and distribution of alcoholic beverages, including the granting of licenses,” Moir said. “State regulation is so comprehensive that there is no local regulatory authority. “The ABCC has preempted local control (outside its local agent, the License Commission).
“State law gives the License Commission discretion, but the local (zoning) ordinance extends that same authority to the Planning Board,” Moir said. “The SJC overturned the Lynn sex offender ordinance on this same basis.
