“Not in My Back Yard,” or NIMBY, seems to be the word of the day for the marijuana industry and this is not a good thing.
With legalization taking over state by state, NIMBY neighbors are coming out in large numbers to go after marijuana businesses. NIMBYs can be aggressive and, in our experience, will do nearly anything to ensure that marijuana businesses do not open anywhere near them or in their communities.
Here’s what you can expect from and how to deal with a NIMBY neighbor:
1. Communal confrontation. Good actors in the marijuana industry know that they must be transparent with their communities and that includes educating local authorities about their business and its environmental and communal impacts. The best settings for such dialogues are at public city council and/or planning commission meetings. Expect NIMBYs to make their first pounce in these public fora. Most NIMBYs know that this is a great opportunity to be heard by community leaders and that most city council or planning commission meetings are not well attended, so they won’t face too much opposition. Be prepared to let the NIMBY take the floor and keep your cool no matter what they say to the governing body. Winning trust early on of those who are rational is absolutely critical.
2. The shotgun approach. We’ve seen a variety of NIMBYs, but the most outspoken typically put in front of their city councils alleged facts about marijuana or the marijuana industry that simply are not true. Their favorites range from unconfirmed “increases” in teen use of marijuana, marijuana arrest rates in states that don’t maintain marijuana-friendly laws, lowered property values that aren’t confirmed, and alleged injuries and deaths from marijuana.
NIMBYs will use any negative (oftentimes untrue and/or irrelevant) statistic about marijuana to nail home their desire to oust marijuana businesses from the community. You must be ready to counter these alleged facts and self-serving statistics with real facts and accurate statistics. By the same token, if what the NIMBY is saying is true, you still need to be prepared to assuage any resulting concerns generated among community leaders.
3. Harassment. Unfortunately, some NIMBYs get too aggressive in their efforts to shutdown marijuana businesses. Do yourself a favor and document any and all behavior by the NIMBY that may amount to harassment and, if necessary, go to the appropriate court for a no-contact order. If a NIMBY is heckling your workers or your contractors, endlessly prank calling your business, or blocking folks from coming on and off the property on which your marijuana business is located, you may have grounds for an anti-harassment order.
4. Constant contact with regulators. NIMBYs thrive on vigilantly watching over a marijuana business’s compliance with state and local laws and then doing everything that they can to get the marijuana business in trouble over the slightest hint of non-compliance. Your job is to be so clean and upstanding that regulators cannot do anything against your business even if they actually want to take action.
5. Litigation and collateral actions. NIMBYs are also quick to employ litigation to get rid of a marijuana business. Recently, a number of NIMBYs in various states have filed actions against cities and counties under their State Environmental Policy Acts (SEPA), alleging that the city or county’s findings that a marijuana business did not trigger SEPA review, were made in error, and that the community and/or surrounding environment is actually in peril should the marijuana business open its doors. The very filing of this type of administrative action can force a stop-order on necessary permitting for the marijuana business and can certainly draw things out, all at cost to the marijuana business.
NIMBYs and their litigation become particularly troublesome if they are able to rely on an easement or a covenant or home association bylaws to be able to argue that the marijuana business is in violation.
Bottom Line: NIMBYs are a fact of life in the marijuana industry, but smart planning, transparency, and running a compliant business are usually enough to defeat them.
