Malden’s backdoor effort to stifle cannabis shops fails in court
February 6, 2026
The city’s zoning for legal marijuana businesses was so restrictive that a judge ruled it created “unreasonably impracticable” obstacles.

On its surface, Malden’s zoning bylaw restricting cannabis businesses might seem justifiable. City officials didn’t want marijuana sold near houses, schools, day cares, religious facilities, parks, or drug treatment centers. So they established buffer zones of varying size around those sites, from 75 to 500 feet, where cannabis businesses were forbidden.
Dig deeper, however, and it’s clear that Malden’s rules made it nearly impossible for a cannabis business to open in the city. Only 55 of the city’s 13,454 parcels of land fit the zoning requirements, according to an engineer who testified in a related court case, and other regulatory requirements ruled out some of those.
Although two marijuana businesses managed to open in Malden despite those hurdles, one aspiring company, Benevolent Botanicals, sued the city, arguing that the zoning was overly restrictive.
On Jan. 29, Massachusetts Land Court Judge Diane Rubin ruled in favor of Benevolent Botanicals and took the unusual step of overturning Malden’s marijuana zoning bylaw entirely, finding that it is “unreasonably impracticable.”
This board has urged communities not to make zoning so onerous that it almost entirely blocks one type of business. Rubin’s ruling should serve as a warning to communities that continue to use zoning this way. Communities can choose, within reason, where they want certain types of businesses sited. And communities can ban marijuana businesses entirely, through a process laid out in state law. But a community can’t impose zoning that’s so onerous as to create a de facto ban.
According to facts laid out in Rubin’s ruling, Benevolent Botanicals’ founders spent a year seeking a zoning-compliant property with no success. They finally found a property that was not compliant and applied for a variance, which was denied. Officials from another marijuana company, Dris, testified that they looked at 100 properties — and spent $80,000 — and couldn’t find a suitable location.
Rubin’s decision focused on testimony from an expert, who found that only 0.4 percent of all parcels in Malden complied with the marijuana zoning requirements, and not all those were available for sale. Rubin concluded: “The time, investment, and effort necessary for Benevolent to comply with [the zoning law] subjected it to unreasonable risk and required such a high investment of risk, financial resources, time or any other resource or asset that a reasonably prudent businessperson would not be able to operate a marijuana establishment.” The zoning bylaw, she found, effectively prevents the siting of marijuana businesses that would otherwise be allowed in Malden.
While it’s unusual for a judge to overturn a zoning bylaw, it’s not unprecedented. In 2022, the Supreme Judicial Court ruled that Waltham couldn’t restrict the building of solar energy systems to only 1 to 2 percent of its land. The SJC ruled in 1977 that Southborough couldn’t use zoning to ban abortion clinics.
The Malden saga is likely to continue. The city has 30 days to decide whether to appeal. The City Council will have to consider whether and how to rewrite its marijuana zoning bylaw in a less restrictive way. Benevolent Botanicals officials are still determining what additional permits the company needs to move forward.
“While we’ve gone through a four-year slog, it hasn’t changed our view of what we’re trying to get accomplished and what we think we can bring to Malden,” Benevolent Botanicals CEO Michael Clebnick told the editorial board.
Equally important, there may be other communities with similarly onerous zoning. James Smith, a partner at Smith, Costello, and Crawford who represents marijuana companies, said many bylaws were written around the time recreational marijuana was first legalized in 2016, and some of those bylaws are very restrictive. But it’s often cheaper for a company to try to open elsewhere than fight a bylaw.
Several years after legalization, marijuana retailers are, generally, operating no differently from any other shop in Massachusetts. Communities should update their zoning to reflect that.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.
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