Judge’s ruling sets clock on Malden cannabis site lawsuit for March 2024 pretrial

Denies attempt by Benevolent Botanicals calling for a judgment against the City of Malden on ‘restrictive zoning’

Advocate Staff Report

A Middlesex Superior Court judge recently set the clock for a legal battle, now over two years old, regarding zoning laws and the denial of a cannabis dispensary license by Malden city governing bodies. Judge Diane R. Rubin dismissed a request by an attorney for Benevolent Botanicals for a summary judgment in its behalf on a lawsuit filed with the court in February 2022. As reported in the Advocate, the lawsuit has the potential to set a precedent for how cities and towns in Massachusetts can zone cannabis businesses, and therefore restrict the industry from growing in a specific town.

The judge, as part of her ruling, scheduled a pretrial in the case for Tuesday, March 5.

The case involves a lawsuit in 2022 in which the owners of the proposed cannabis shop at 926 Eastern Ave. say the city has created zoning laws which make it “impossible to open their business in Malden.” According to representatives of Benevolent Botanicals, the group has spent over $200,000 in legal costs alone in an attempt in court to have Malden allow their business to begin operations.

It could potentially prove to be a financial liability for the City of Malden, should Benevolent Botanicals prevail in its lawsuit and the city was ordered to assume the legal costs of the plaintiff as part of a judgment in the plaintiff’s favor.

One example of a Malden-specific zoning restriction is that if a building has a cannabis business in it, no other businesses can share that space, eliminating many potential locations for cannabis shops, according to the complaint. Benevolent Botanicals also claims that Malden’s buffer zone laws go far beyond state regulations.

Massachusetts law says that cannabis businesses cannot be opened within 500 feet of a school. But Malden’s laws further stipulate that cannabis establishments can’t be within 75 feet of residential and religious spaces, substance use treatment centers and daycares, and must be at least 250 feet from parks. Benevolent Botanicals’ proposed location at 926 Eastern Ave. meets state law 94G, regarding the school buffer zone, but it violates Malden’s laws because it’s just 61 feet from a residential property line – just 14 feet below the minimum.

The lawyers for the dispensary compiled a list of parcels that are eligible for cannabis businesses under Malden’s laws and found 55 out of 13,400 properties and parcels in the city – less than one half of one percent – are eligible for cannabis.

The only way Benevolent Botanicals could adhere to the zoning laws was to obtain a variance from the Malden Planning Board, which ultimately denied the variance request. In its decision, the city’s Planning Board ruled “there was not anything unique about Benevolent Botanicals to suggest that the city did not consider this type of parcel when it passed its zoning ordinance.”