City of Malden zoning board refuses applicant due process for cannabis shop
How do you hold a hearing and don’t let the applicants speak?
This is a direct copy from Stee McMorris, a social equity applicant on their recent denial of a permit for cannabis in the city of Malden, Massachusetts.
Ok, friends. Here is the post mortem on our meeting with the Zoning Board of Appeals last week, which may take SLIGHTLY less time to read than watching the 4-hour video.
We have been applying for a cannabis license in Malden, officially, for a year. (We submitted our application in January of 2021.) We have been paying rent on our location since 2019. We started our company, and the search for a suitable facility, in the summer of 2018.
In order to pass Malden’s Cannabis Licensing and Enforcement Committee (CLEC), we had to prove that we have $2 Million in hand and that it would be sufficient to complete the process and successfully open for business. This required us to engage with an architect and a team of engineers, paying tens of thousands of dollars for an evaluation of the building, formulation of our architectural plans for renovations, and the mechanical engineering assessment of our building and everything we would need (like plumbing and electrical upgrades) for our facility.
CLEC was satisfied with our response and unanimously voted to move us forward. The Building Commissioner, who sits on the CLEC, said we have a great location. We are situated in a heavily commercial part of the city, with many successful businesses around us. We have Crazy Good Kitchen on one side, and a composting company on the other. There are no schools, preschools, daycares, cemeteries, houses of worship, or parks near us (all of which Malden voted to give additional buffer zones, beyond just schools, against state recommendations). We have 2.5 times the required parking for our business. We don’t have to do any exterior construction, so our renovations will have essentially no impact on the neighborhood. We are located 0.2 miles from the Malden Police Station- literally a block and a half away. (The Chief of Police is one of the voting members of CLEC, and I believe he nominated us for the vote.) We have a great setback from the sidewalk, as well.
There is one more buffer zone that Malden implemented against state recommendations: The residential buffer zone. Cannabis zoning requires not just 75ft from the nearest home, but actually 75ft between our PROPERTY LINE, and their property line.
There are 5 residential properties that skirt that zone. We overlap the buffer zone by as little as 4 ft, to a maximum of 14 feet, for only 5 houses.
In between our property line and their property line is a tall fence with barbed wire, vegetation, a bike path, more green, and another fence. Plus some of the homes have their own private fences.
CLEC, including the building commissioner, voted to move us forward, clearly with the understanding that, if appropriate, variances would be issued for such small zoning issues.
The REASON they believed this, is because the City Council told them it was so.
Councilors Spadafora and Sica were especially active in selling this belief- that prohibitive buffer zones were fine because the city would just issue variances. They literally said, “they can just get a variance” in discussions of the residential buffer zone in particular, as you may have glimpsed in my earlier posts.
Currently, in Malden, there are only 4 properties on the market that are appropriately zoned for cannabis. Only 2 of them could proceed without a buffer zone variance. One of them has a secret address(?!) and they’re asking like $3 Million to buy it.
Malden also has a special rule, very unusual compared to other municipalities, that if you operate a cannabis business, YOU MUST BE THE ONLY OCCUPANT OF THE BUILDING. So no, you can’t get that good slot in a strip mall, unless you can afford to buy the whole strip mall.
The combination of these factors results in a scenario where it is pretty much impossible to open in Malden unless you already happen to own real estate here. It is overtly hostile to social equity companies.
So we have this excellent location, this exceptional business plan, this commitment to local and diverse hiring. All we need is forgiveness for slightly overlapping the edge of a buffer zone that the state heavily suggests should not exist at all. And which the City Council repeatedly said would be an acceptable candidate for a variance to be granted by the Zoning Board of Appeals.
Only, the Council never instructed the ZBA on their role in the cannabis process. They were completely blindsided by our presence on their docket, and had no idea how they were supposed to handle the request.
Two other companies who needed some small variances, who passed CLEC in the first round of applications, just quit and left Malden because they didn’t have the money to make it through such an involved municipal process and because they didn’t see themselves making it all the way through.
To find such a property, that satisfies the primary use requirement (can’t share the building with anyone else), that isn’t in any of the many extra buffer zones Malden imposed (the state only requires schools), that is accessible to all, we had to survey literally 150 properties. There were no better alternatives available, and everyone who has seen our location says it’s an excellent location for this purpose.
We even knocked on the doors of those 5 residences whose property line was within 75 feet and talked to anybody who would let us. All 4 of the people we talked to responded positively to the contact. We earned the support of our ward Councilor, who did a nice walkthrough of the whole property and discussed additional ways we might benefit the neighborhood and the city, in our Community Host Agreement.
So, let’s talk about how that meeting went down.
Prior to the day of the meeting, we sent the ZBA a 40-page packet of informational materials. It includes photographs, diagrams with measurements, a detailed description of cannabis zoning in Malden, a summary of our case and the topographical hardships imposed by both zoning and the inconvenient presence of ledge on our property and a description of how we will benefit both the Malden community as a whole and not be a detriment to our neighborhood in particular. It talks about our building, our site plan, our commitment to at least 80% local & diverse hiring, our largesse of parking spaces, and the accessibility of our future storefront by both car and public transportation.
But it seems this packet didn’t get distributed to the members until right before the meeting. I don’t think they got any time to review the materials. We asked to be allowed to present the highlights of that packet to the Board and the public, and they would not let us speak, and refused to screen share any of those images.
Ordinarily, the ZBA has lots of questions, and whichever member of the petitioner’s team is an expert on that topic gets up and answers their queries. Except, none of us were allowed to speak at all. We weren’t sent panelist links to be part of the zoom, like public hearings with past candidates that took place on zoom. We were just out there in the general milieu with the dozens and dozens of members of the public who virtually attended. And we know they didn’t have a chance to review our packet because when we raised our hands or typed into the chat, they didn’t recognize our names (the founders, the CEO, and even our landlord/VP of Operations were all there, and they didn’t know who any of us are). Our CEO had his hand raised for most of the meeting and was never allowed to speak. The ZBA asked questions and expressed very negative “what if” fears about the property, and instead of letting us address the issues (we didn’t have any of the challenges they were worried about!), the meeting just plowed on without us. I have NEVER seen a ZBA meeting where the petitioner was not allowed to speak and answer questions.
So we were essentially never allowed to properly present to the Board, let alone the public.
And yet, when the public hearing opened, we listened to over THREE AND A HALF HOURS of continuous testimony from our Malden neighbors that we are excellent applicants, that we will be ethical and beneficial for the community, that our location is perfect, both for neighborhood harmony and for accessibility, that we are good people who are deeply invested in the Malden community, that we will be a boon and not a detriment, that we will not impact the distant residences at all, that we will, in summary, be an excellent, ethical, profitable addition to the city. We heard from business owners (including an abutter), soccer moms, senior citizens, and real estate brokers.
We heard from Shaleen Title, who co-wrote the law legalizing cannabis in MA. She then served on the Ad Hoc Cannabis Committee in Malden, when it was first working out its framework for legalization. Then some astute individual at the statehouse noticed what a star she is, and she served on the first Cannabis Control Commission for years. She wrote a letter to the ZBA about why residential buffer zones are not so great in the first place, specifically because they shut out social equity companies like ours, and why our variance request was very reasonable and should be granted.
We heard from our ward Councilor, who was absolutely in support, two other Councilors who spoke in support. As well as a School Committee member, a union leader, a pastor, and 56 total Maldonians, including 9 from Ward 6, and people from every Ward in Malden!
It was an overwhelming show of love and support from our community, and it honestly made us feel kind of emotional!
I believe the ZBA had been deliberating for approximately 9 minutes when they suddenly announced that actually, the ZBA would not even consider ANY variances for ANY cannabis companies and that it is not their job to go against what the Council voted for in the ordinance.
Here’s the problem: Every single petitioner there is asking for some relief, to go “against” what the Council said in the ordinance. That’s exactly what the ZONING BOARD OF APPEALS is.
And if it was true that in Malden not a single variance shall ever be granted to a cannabis company, then:
1. Certain members of the Council lied about the Council’s intent when determining additional buffer zones, which is a matter of public record and the video can be viewed by all.
2. The Building Commissioner (who would have known if this was the rule), would have turned us away before we even presented to the City.
Because if that’s really how the process works, then our property would NEVER have been eligible. Meaning that Malden strung us along for an entire year, and required us to do hundreds of thousands of dollars of work, all on a property that they always intended to reject outright.
WHY WOULD THEY DO THIS TO US, OF ALL PEOPLE, THE ONLY MALDEN-OWNED CANNABIS BUSINESS, AND A SOCIAL EQUITY APPLICANT?????
What happened here, and what are they going to do about it?!
PS for the record I think the CLEC moved us forward in good faith, having no reason to believe that we would be arbitrarily declared ineligible for relief via variances. I believe the ZBA was not directly included in the development of the Malden process and were blindsided by their role in our application. I think it’s unfair to put them in this position of authority without explaining their role and duties, and the spirit of the ordinance, very clearly. Perhaps it would be best if the variances for cannabis companies were granted by the Council, which grants the Special Permit. I don’t think any individual members of those groups were sitting there like “I’m gonna do some harm today!” I am upset that a broken process may have destroyed my future. It is my fervent hope that the trust CLEC vested in us when they moved us forward, the open approval of several City Councilors, the outpouring of public support for our application, the excellence of our location, and the spirit of community here in Malden will be satisfied by some fair and reasonable remedy in the near future.