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Community Development Board Denies Marijuana Dispensary Extra Parking

By Jack GuerinoiBerkshires Staff
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PITTSFIELD, Mass. — A proposed Merril Road marijuana dispensary was denied a parking expansion by the Community Development Board.
The board last week denied a request by Slang LLC, doing business as the Bloom Brothers, to amend a special permit for its proposed marijuana dispensary at 392-400 Merril Road / 2 Larch St. that would allow it to construct additional parking adjacent to Larch Street. 
Bloom Brother principle Nathan Girard said they originally planned to only have parking on an upper lot, meeting the city's requirements, but felt because parking abundancy is generally an issue at dispensaries there would ultimately be a parking shortage.
"We are trying to be proactive with our approach and we just saw that there was going to be a shortage of parking no matter what we did," he said. "So we reached out to our architect to try to find a space that we could do it."
He said they looked to add seven parking spots and plan to make improvements to the unapproved city street that is pitted with potholes and unsatisfactory driving conditions. He said they technically own part of the street.
Girard said they reached out to the city's engineering department, building commissioner, and the permitting coordinator and submitted some new plans. He said because the change was so minor the building inspector signed off on it and they blocked off the area and prepared for construction.
This was found to be a mistake and after some changeover in the building inspector department, he was told to stop work and to receive the proper approvals. 
"We had the machinery out we thought we had the approval ... but we essentially stopped dead in our tracks," he said. "It is at a level state but we have not yet blacktopped it."
Chairwoman Sheila Irvin said Girard did not follow the correct process and any change in a marijuana establishment's site plan is not considered minor 
"I am not happy with the way this has been done and you have not gone through the process that we go through," she said. "We have expressed concern over the traffic circulation and the effect that this will have on that."
This was the board's main concern and board member Floriana Fitzgerald said she did not think the additional parking would improve safety conditions in an already questionable roadway.
"I have concerns because it is too close to the gas station to close to Merrill Road. It is like a speedway at times and I don't think it is a very safe situation," she said. "I don't like how fast cars drive through there all of the time."
Girard said he did have a chain of emails from city officials providing him with approval and was disappointed that a mistake was made. He asked to appeal to a full board or perhaps seek out a compromise.
"We were trying to be proactive and we are just trying to comply, that is number one," he said. "We went above and beyond what the standards are." 
But the commission still did not feel comfortable with the parking and Irvin said she did not want to create a dangerous situation.
"The approval was a mistake. It was a mistake on the impact that it had and it was a mistake with who was making the decision," she said. "But we don't want to compound that mistake by putting something into place that will be dangerous forever."
The board felt the Bloom Brothers had sufficient parking and asked that the site be restored. They also noted two mature trees on Larch Street that if found damaged by construction, they wanted to be replaced.
The board added that if parking really is an issue at the location in the future they can address it at a later time.
After the ruling, City Planner CJ Hoss said Girard's explanation was not accurate and that Girard's narrative did not align with how the Community Development Department handles business.
"Yes, the building inspector made a mistake and gave them the green light but with all applications that require a site plan review or special permit when changes are made, applicants come back to our department to talk about the changes," he said. "Not the day of construction."
The Zoning Board of Appeals will ultimately make the decision.
The board also approved the Berkshire Family YMCA's site plans to inform a $5 million overhaul of the interior and exterior of the historic building on North Street.
"I love the plan from the way it looks like outside. I like the fact that you are reopening windows that have been blocked off," Herland said. "I think it will be a great addition and change to North Street."
The board asked about funding and YMCA board member Matt Scarafoni said they hope to both raise funds and break ground at the same time.
"We want to get people jazzed up," he said. "It will be a combination of the two. We have begun to raise the funds and we have had a lot of good feedback ... we will continue to raise money for as long as it takes."
The board asked about design and materials to be used and although YMCA representatives had a lot of these details, Scarafoni said there are still a few that have to be hashed out. 
"This is the Y and we are not here to make money and it is as wholesome as it gets," he said. "So we aren't sure if it will be gray or whatever but if the city comes forward and says it needs to be this to fit in, we hear that loud and clear."
The YMCA plans to start relocating the fitness equipment in April and then afterward, demolishing the old fitness center and basketball court to make way for the new facilities and other improvements. It plans to start the day-care center renovations in summer 2020 and have everything wrapped up by summer 2021.

Tags: marijuana,   Planning Board,   YMCA,   

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Letter: Problematic Proposed Lenox Short-Term Rental Bylaw

Letter to the Editor

To the Editor:

Under the proposed short-term rental Lenox bylaw, "up to two bedrooms in a dwelling unit may be rented year-round by right provided that the owner or tenant is occupying the dwelling unit at the time of the rental."

Presumably, bedrooms may not be rented at all if the owner or tenant is not occupying the dwelling unit.

In other words, literally, the very same use is allowed by one type of owner (an owner occupying the dwelling unit), but not another type of owner (one who does not occupy the dwelling unit where bedrooms are being rented). Because there is identical use and intensity and the only thing that differs is the type of owner or renter; it is hard to view this as mere regulation of use and not ownership.

The other provision suffers from the same problem. Suppose there is a duplex or land with two houses on it (perhaps an old robber-baron estate) but with separate owners for each dwelling unit. Under the rule regarding "dwelling units being rented in their entirety," "an entire dwelling unit maybe rented up to 75 days per calendar year by right," and "an entire dwelling unit may be rented for an additional 35 days (up to 110 days) per calendar year by Special Permit."

But then suppose there is unity of ownership and one person owns the entire duplex or both houses. In that case, "the above totals apply to the entire parcel" and "the day limits defined above shall be apportioned among those dwelling units."

A town can regulate the number of days a short-term rental may be utilized under the newly passed statute: but this additional restriction based on who owns the premises is a regulation of ownership and not use.

The same is instinct through other parts as well. Of course, Lenox residents or their guest can park in the street. But if you are renting a short-term rental, "All overnight parking must be within the property's driveway or garage." If you own or rent property, so long as you get the right permits, you may entertain on your property. But if you are a short-term renter, "events that include tents or amplified music or which would customarily require a license or permit are not allowed."

Since 1905, when Home Rules was put into the [Massachusetts] Constitution, towns could pass their own bylaws, so long as there was no regulation of a civil relationship unless it was an incident to a legitimate municipal power. This meant, among other things, zoning laws had to regulate use and not ownership. It is now a fundamental principle of Massachusetts zoning that it deals basically with the use, without regard to the ownership of the property involved, or who may be the operator of the use. This bylaw appears to violate this fundamental tenet.

By way of example of the you-may-regulate-use-but-not-ownership rule, it has been held that a city did not have authority under the Massachusetts Constitution to pass an ordinance that affected the civil relationship between tenants and their landlord, who wished to convert their rental units to condominiums. In another case, a municipal ordinance which restricted a landlord's ability to terminate a lease and remove his property from the rental market in order to sell it was invalid.

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