City proposes zoning amendments for cannabis establishments

By Dan Murphy

With an eye on promoting equity in the industry, the city is recommending that zoning guidelines for cannabis establishments be amended to not only remove the required half-mile buffer zone between dispensaries, but also to change their designation from “Conditional Use” to “Allowed Use” in all non-residential districts.

The city’s Zoning Commission had already enacted zoning that designated cannabis establishments as “conditional use” in commercial and industrial zoning sub-districts before the 2019 creation of the Boston Cannabis Board (BCB), which, according to the city, was “established to develop regulations and procedures for evaluating proposed cannabis establishment licensing applications and ensuring the equitable regulation of the industry.”

Today, 12 cannabis establishments are operating in the City of Boston after they all secured zoning relief from the Zoning Board of Appeals and were also licensed by the BCB – a two-part process that many believe has resulted in redundancies, and in some cases, has put the Zoning Board’s determinations at odds with the BCB’s rulings on the same applications.

“To remedy this situation, the City of Boston has recommended amending the Zoning Code to treat Cannabis Establishments in the same way that retail uses are treated, Allowed in commercial and business sub-districts but remain Forbidden in residential sub-districts,” according to the Boston Planning & Development Agency’s website. “The process for seeking zoning relief through the Zoning Board of Appeal has been made redundant by the Boston Cannabis Boards process and regulations so the time is right to phase out the ZBA requirement.”

In an Aug. 29 letter to BPDA Director J. Arthur Jemison, District 8 City Councilor Kenzie Bok wrote that she supports the removal of the half-mile buffer zone rule from the zoning code  because “as a specialized body considering the emergence of the cannabis industry across the whole city, the BCB is better positioned than the Zoning Board of Appeals (ZBA) to weigh the different factors in considering whether an exception to the half-mile buffer zone is appropriate or not.”

Councilor Bok added that the addition of two new members with “relevant expertise” to the BCB (increasing the board’s ranks from five to seven members) would “help it weigh these issues, and make location considerations more central to the BCB’s grading rubric.” 

(The BCB uses a scoring sheet to rate applicants that takes into account four criteria, including the business’s diversity and inclusion plan; its employment plan; community feedback and public support; and location, safety, and security.)

“I believe this is an appropriate streamlining of the process, and I believe that we have seen the BCB’s deliberations reflect an enhanced consideration of location dynamics over the past year,” Councilor Bok wrote.

Regarding the second proposed change to the city’s guidelines for cannabis establishments from “Conditional Use” to “Allowed Use” in all non-residential districts, Councilor Bok wrote, “I represent a number of parts of the City in which residential and business uses are extremely cheek-by-jowl; such areas of my district are in fact often home to many more residents than areas of the City commonly described as ‘residential.’ This mix of uses makes for dynamic, vibrant urban neighborhoods, but of course can also result in certain tensions.”

One method developed for addressing tension in these neighborhoods is to designate all business uses as “Conditional,” wrote Councilor Bok, to encourage businesses to meet with residents, as well as to adopt certain “protocols” for “trash pickup, hours of operation, deliveries, curb management, etc.” 

Added Councilor Bok: “Throughout my district, there are numerous areas where resident and commercial stakeholders have gotten together and agreed on local business subdistrict zoning that applies ‘conditional’ status to nearly all uses – from cafés to liquor stores. In this situation, it would be strangely inconsistent to remove the ‘conditional’ status only for marijuana retail, as proposed in your petition. Since the BCB does not consider detailed good-neighbor restrictions to be appropriate for inclusion in Host Community Agreements, your petition would mean that the neighborhoods I represent would have standing to seek agreement on matters such as hours and trash pickup in advance of a ZBA vote for a café, but not for a cannabis shop.”

At an Aug. 29 virtual meeting sponsored by the BPDA on the proposed zoning changes, City Councilor at-Large Michael Flaherty, who described himself as “one of the chief architects” of the half-mile buffer, said the ZBA should continue to uphold this guideline so as not to inundate any one neighborhood with an abundance of cannabis establishments.

Councilor Flaherty also predicted that the city would only have a “limited window” to facilitate the opening of Boston’s cannabis establishments before the industry is “reclassified” at the federal level.

“Stop & Shop and Walgreens – once they get into the business, it’s going to completely change the trajectory of what we’re discussing,” said Councilor Flaherty.

Brian Keith, Chief Operating Officer of  Rooted in Roxbury, said they intend to open an equity retail cannabis shop at 331 Newbury St. this November. Which comes after paying rent at the location for the past two years.

Rooted Roxbury also spent an estimated $150,000 on attorneys, architects, and consultants before they even filed their application with the city, Keith said, while the ZBA process could double those costs and extend the timeframe – something that could cause the applicant to eventually run out of funds and fail as a business.

Elliott Laffer, who chairs the Neighborhood Association of the Back Bay, said while the time and cost issues that applicants face are legitimate concerns “so is the desire of the neighborhoods to be heard.”

Since residential and commercial uses are so inextricably linked in the Back Bay, Laffer said, “We need to work really hard so that busines neighborhood can be viable, but that the residential neighborhood is viable, too.”

Segun Idowu, the city’s Chief of Economic Opportunity and Inclusion, said while it “made sense” to charge the ZBA with evaluating would-be cannabis establishments in the city prior to the formation of the BCB, now, the ZBA process is now nothing more than an “unnecessary barrier,” which can take months to navigate and put an “unnecessary burden” on equity applicants.

As a result, some applicants have found themselves in the unenviable position of having to find another location for their proposed cannabis establishment, or having to sue the city instead, said Idowu.

The BPDA is accepting public comments on the proposed zoning amendments for Boston’s cannabis establishments through Sept. 9 via email at [email protected]

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