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Last August, the Boston
Planning & Development Agency (“BPDA”) held a public meeting to discuss a
proposed amendment to the Boston Zoning Code that would potentially
change a “Cannabis Establishment” from a Conditional Use to an Allowed Use in commercial and business subdistricts (the “Zoning Amendment”).
The nature of the change
in the proposed Zoning Amendment would remove the ZBA siting, hearing, and
approval process from the requirements for creating a Cannabis Establishment
because zoning relief is not required for Allowed Uses.
Presently, the Zoning
Code lists Cannabis Establishments as a Conditional Use in the Local Business,
General Business, Restricted Industrial, General Industrial, Maritime Economy
Reserve, and Waterfront districts with the caveats that 1) no Cannabis
Establishment may be closer than one-half mile from another existing Cannabis
Establishment and 2) Cannabis Establishments must be at least 500 feet away
from any pre-existing public or private school. Cannabis Establishments are
currently, and will remain, forbidden in residential districts. The Conditional
Use designation means that all applicants seeking to open a Cannabis
Establishment within the City of Boston must complete an application process
with the Boston Cannabis Board (“BCB”), the regulatory board established to
review licensing applications and ensure equitable regulation, as well as the
Boston Zoning Board of Appeals (“ZBA”), the body charged with addressing siting
concerns for new developments and ensuring zoning compliance. All applicants
must receive approval from both bodies before proceeding to the State level for
approval from the Cannabis Control Commission (“CCC”).
The Ordinance that created
the BCB (passed in 2019) also created the Boston Cannabis Equity Program,
implemented by the Mayor’s Office of Economic Opportunity & Inclusion,
which works to equalize representation in the burgeoning cannabis industry by
providing technical assistance and grants to eligible Equity Applicants. The
proposed Zoning Amendment has been spurred by concerns that the current siting
and permitting processes for Cannabis Establishments in Boston largely prevent
Equity Applicants from achieving a fully permitted, viable business because the
expensive and lengthy process favors applicants with more substantial
resources, even accounting for the assistance provided by the Equity program.
The nature of the change
in the proposed Zoning Amendment would remove the ZBA siting, hearing, and
approval process from the requirements for creating a Cannabis Establishment
because zoning relief is not required for Allowed Uses. Under this proposal,
all applicants would submit for licensure via the BCB and, upon approval, move
forward to the CCC.
Both Boston City
Councilor for District 8, Kenzie Bok, and At-Large City Councilor, Michael
Flaherty, expressed reservations about the Zoning Amendment during the public
meeting. Public comments were also offered, a number of which expressed
concerns over the proposed Zoning Amendment, while others expressed support for
removing barriers to inclusion in cannabis development.
Those that questioned the
contents of the proposed Zoning Amendment highlighted a few specific issues,
including:
• The Zoning Amendment,
in its current form, will delete the caveat regarding the half-mile minimum
between Cannabis Establishments and the minimum distance from schools.
o It was noted that part
of the initial justification for the minimum distance between Cannabis
Establishments was to prevent individual neighborhoods from having a
disproportionate number sited within a limited area.
• Many of the
subdistricts in which Cannabis Establishments would become an Allowed Use are
areas that are mixes of residential and commercial/business uses, and residents
may have concerns regarding the siting of Cannabis Establishments near their
homes.
• A number of areas
restrict restaurants and liquor stores and other similar operations to
Conditional Uses; conversion of Cannabis Establishments to an Allowed, rather
than a Conditional, Use may allow Cannabis Establishments to bypass reviews and
community outreach that remains a requirement of other uses.
Those in support of the
Zoning Amendment highlighted challenges with the current process and ways in
which it could be improved, including:
• The ZBA is not a
regulatory board with specific, subject-matter expertise, often creating
difficulties for applicants then obligated to demonstrate the validity (and
legality) of their proposal.
• The BCB does not
currently address questions of siting and zoning for Cannabis Establishments,
but it potentially could include those criteria in its consideration, both
streamlining the applicant’s process and considering the location and local
interests.
• ZBA involvement has
included ideological stances on cannabis that are not supposed to be a
consideration or a basis for denial.
• The issues arising from
the ZBA portion of the permitting process have resulted in at least one
lawsuit, which the ZBA lost, and could potentially cause substantial legal
exposure for the City.
Based on this meeting,
the BPDA Staff will determine whether to present the Zoning Amendment to the
BPDA Board. If the Zoning Amendment is presented to and accepted by the BPDA
Board, the proposal will be sent to the Boston Zoning Commission, which will
also include a public hearing component.
Copies of the proposed
amendment, available in six languages, and the recording of the public meeting
are available through the BPDA website. The BPDA is currently accepting
comments on the proposed amendment through Friday, September 9, 2022, which
should be submitted via email to BPDArpz@Boston.gov.
