Lawsuit challenging Malden zoning laws on cannabis dispensary siting could be precedent-setting in Mass.

Judge orders submission of summaries in preparation for bench ruling on 18-month-old case

  Two cannabis dispensaries have been up and running in Malden for nearly a year, in a city where up to five such businesses are allowed by law. A third potential cannabis business owner, who is suing the City of Malden in a lawsuit challenging municipal zoning laws, is still waiting on the sidelines – for nearly two years now. Benevolent Botanicals, seeking to operate a cannabis dispensary at 926 Eastern Ave., in the middle of the stretch of Route 60 between Maplewood Street and Broadway, has been on the outside looking in since the middle of 2021, despite being approved by the local Malden Cannabis Licensing and Enforcement Commission (CLEC).

  At the time, the CLEC favorable vote seemed its biggest hurdle. That was until the company’s bid for the granting of a zoning variance from the Malden Board of Appeal was denied in January 2022, citing two statutes in Malden’s laws governing cannabis establishments that prohibited them from opening. (Attempts to reach the Malden CLEC on this case were unsuccessful by press deadline.)

  The main Malden-only law which thwarted Benevolent’s bid, according to owner Michael Clebnik – who is planning on operating the cannabis dispensary under the name Continuum – involved the minimum distance the business has to be from residential properties: 75 feet. As planned, the new dispensary fell short of this regulation by a mere 14 feet, he said, and that 14 feet has saddled the long-awaited Continuum dispensary with a 14-months-plus wait since the lawsuit was filed in February 2022.

  The lawsuit was filed after the Malden Board of Appeal voted at its January 2022 meeting against granting Benevolent Botanicals/Continuum’s petition for a variance in regard to the Malden cannabis zoning regulation prohibiting siting a dispensary within 75 feet of a residential property. This came after a nearly four-hour Zoom meeting where dozens of Malden residents – including the Ward City Councillor Jadeane Sica and a Malden School Committee member – offered live testimony in favor of granting the petition. The main premise cited by the Board of Appeal in its decision was that they were not prepared to vote against the regulations put in place by the Malden City Council, essentially placing the Benevolent Botanicals application in administrative “limbo.” This was because the City Council was unable to act on granting a now-needed special permit for the business without the variance from the Board of Appeal.

  “The bottom line is the Malden zoning requirements regarding cannabis dispensaries exceeds state law and makes it virtually impossible to open a business of this nature in the city,” Clebnik told the Advocate Wednesday.

  “Not only is this situation depriving my business of operating in this community, it is also denying residents of Malden a substantial source of additional tax revenue,” the would-be owner of a third Malden cannabis dispensary said.

  Clebnik said he recalled a conversation with one Malden City Councillor who told him of a project she was working on which involved raising funds to purchase additional books for Malden schoolchildren. “We could have been open for almost a year now turning over tens of thousands of dollars in tax revenues to the City of Malden had we been granted the zoning variance we were told was expected to be granted,” Clebnik said. “Those revenues could have been paid for those books many times over.”

  “Why are Malden citizens not asking their City Councillors why their community is being deprived of those tax revenues due to a zoning law that is overly restrictive?” Clebnik said.

  The Continuum dispensary owner said there is progress in at least the timetable of the company’s lawsuit against the City of Malden at this time. Clebnik said a judge ruled at a May 5 status hearing that summaries from both parties – Benevolent and the City of Malden – be submitted in June in preparation for a summary judgment from the bench in the case. “We remain optimistic we will absolutely prevail in this case,” said Clebnik.

  Clebnik said the expected decision – which could come before the end of the summer – will be precedent-setting. “There are a lot of people on both the business side and on the municipal and state side watching this case as it could affect zoning decisions for years to come,” he said.

  “There are so many parts of this case, from the primary issue with the 75 feet to residential property regulation to the fact we are a state-approved, social equity business that has not secured our operating license to date,” Clebnik said. “The [Mass.] Attorney General is following this case closely as well.”