Boston ZBA chair blasts City Council for ‘posturing’ in fight over marijuana buffer rule

As the marijuana industry grows in Boston, the city council has butted heads with the Zoning Board of Appeal over a “buffering” law requiring two marijuana shops to be at least a half-mile away from each other.Michael Swensen for The Boston Globe/Michael Swensen for The Boston Globe/file

Lately, Christine Araujo, chairwoman of the Boston Zoning Board of Appeal, has been contemplating the meaning of existence — not so much in the philosophical sense, but as it pertains to marijuana businesses.

That’s because, under a city rule meant to prevent clusters of pot stores, each new cannabis establishment must be located at least a half-mile away from an “existing” one. And last week, a long-simmering dispute over when, exactly, a business comes into existence boiled over into an unheard-of public confrontation between Araujo’s board and the City Council, which is refusing to confirm seven appointees by Mayor Martin J. Walsh to the ZBA until they declare their stances on the marijuana buffer rule.

Now, Araujo is warning that a short-handed ZBA — whose 10-person roster includes two inactive, retired members and five “holdovers” whose terms have technically expired — could soon be forced to start deferring hearings on proposals for everything from patios to skyscrapers.

Araujo accused the council of “posturing” and said that without a consistent quorum of at least five members, practically all new development in Boston will grind to a halt. In addition to wasting the time of project proponents and neighbors who come to comment on their proposals, Araujo noted, deferred hearings must be re-advertised, costing taxpayers money.

“I’m not into playing games,” she said in an interview. “My intention is to make sure that every applicant gets a fair hearing before a full board. I don’t understand why [the buffer rule fight] has to be linked to re-confirmation.”

The disagreement has its roots in a February decision by the Walsh administration to award coveted host community agreements — the contracts every recreational pot operator must sign with its municipality before it can win a state license — to two proposed marijuana stores near Maverick Square in East Boston.

When a Globe reporter pointed out that the locations appeared to be just four-10ths of a mile apart, a Walsh spokeswoman initially insisted they were separated by precisely 3,168 feet, far more than the 2,640 feet in a half-mile.

But by the time the two businesses appeared in March before the ZBA to seek a routine zoning variance required of all marijuana facilities, officials had conceded that the two properties were actually within a half-mile of one another.

The first business on the agenda, Berkshire Roots Inc., received its approval. The second, East Boston Bloom LLC, hastily requested a deferral after ZBA members expressed confusion about the buffer rule and appeared poised to deny the company a variance. (It is now scheduled to appear before the appeal board in September.)

Caught in an apparent measuring error, the Walsh administration then adopted a legal argument proffered by East Boston Bloom’s attorneys: that the buffer rule didn’t even matter, since neither company had received permission from the city’s Inspectional Services Department to open. That, they now insist, is corporate conception — the moment a marijuana company officially, legally comes into “existence.”

Before the March hearing, however, there was broad agreement that the half-mile rule would be enforced during the process of negotiating host community agreements, with administration officials picking which pot business could proceed in any given area before proceeding to the ZBA for a rubber stamp. In fact, the Walsh administration previously told the Globe that was how the system worked, and even shot down several proposals for being too close to others.

But under the new interpretation, it suddenly appeared that multiple pot businesses within a half-mile of one another could be approved — and then race to become the first to open their doors and begin “existing,” thereby forcing any others nearby to return to the ZBA and seek an exception to the half-mile buffer. The about-face enraged applicants and activists.

City Councilor Michelle Wu and other councilors say Walsh’s interpretation is nonsensical. Since no recreational marijuana facilities have opened, they argued, defining “existing” as meaning only stores that have opened would effectively nullify the rule. Along with critics from the marijuana industry and advocacy community, they question why the administration abruptly changed its view of the seemingly simple rule, calling the process unfair and inconsistent for both residents and businesses.

“It was a simple yes or no question, and the council owes it to our constituents to receive answers,” Wu said. “Prior to this embarrassment happening live at the ZBA hearing, there had been no hint that anyone in the city was thinking about it this way.”

The way Wu sees it, marijuana businesses already “exist” by the time they appear before the ZBA.

“They’ve filed the paperwork and paid thousands of dollars to get a site,” she said. “They’re already functioning as a business.”

Araujo disagrees.

“They should have put it very clearly and said any ‘proposed’ business instead of ‘existing,’ if that was their intent,” she countered. “We need to go by the black-and-white text in the statute. I’m honestly not trying to contort anything or play semantics.”

Araujo said the delay has left the ZBA in a perilous position, since members cannot always make the board’s weekly meetings and sometimes need to recuse themselves from voting on a project.

However, Wu placed blame mostly at Walsh’s feet, saying his administration “never should have signed host community agreements that were in violation of the zoning code” in the first place.

The fight comes as the City Council is debating a proposal by Councilor Kim Janey to completely restructure Boston’s marijuana approval process by creating an independent board to evaluate applications and prioritizing the approval of businesses owned by locals and those affected by the war on drugs.

The fight over the buffer rule has alarmed both marijuana entrepreneurs and development insiders.

“I’ve never seen — going back almost 50 years — a situation where a group of people got held up like this,” said development attorney and former city councilor Larry DiCara. “This is one of those ones where I’d suggest everybody get together in a room and work it out, because in the long run, having a board of appeal without a quorum is real big problem.”

Correction: This story has been updated to correct Michelle Wu’s title.