WILLIAMSTOWN, Mass. — In a split decision on Tuesday, the Planning Board voted to recommend town meeting take no action on either of the proposed zoning bylaw amendments related to the production of marijuana.
After hearing new testimony about proposed changes to the commonwealth's regulations about setbacks and how they might factor into a draft bylaw regulating outdoor cannabis cultivation in town, the majority of the board decided it was best not to move forward either on its own draft bylaw or one submitted by citizens petition that would continue the town's current practice of allowing outdoor commercial pot growth by special permit.
The move came one day after the town's Agricultural Commission — which wrote the article placed on the warrant by citizens petition — talked about whether to table or postpone consideration of either article.
Although the Ag Commission took no formal vote on a path to recommend relative to postponing action, its chair argued that any move to postpone consideration of Article 34 (the citizens petition article allowing outdoor growth) only would make sense if Article 33 (the Planning Board article that would prohibit outdoor growth) also was tabled.
The Ag Commissioners cited potential confusion among voters about the conflicting articles and the potential of low turnout at the delayed, outdoor annual town meeting as reasons why it might make sense not to decide either article on Tuesday evening.
Some members of the Planning Board echoed that sentiment.
"This is such a mess for a difficult town meeting," Peter Beck said toward the end of Tuesday's two-hour meeting. "Complexity would not be the order of the night. I feel like the responsible thing at this point [would be to postpone]."
Planning Board Chair Stephanie Boyd told her colleagues there are two potential ways the meeting could decide to take no action on warrant articles; the articles either can be tabled or postponed. The former, tabling, requires a two-thirds majority vote and is a non-debatable motion once made from the floor of the meeting. The latter allows for discussion and can be passed by a simple majority.
Boyd said a motion to postpone is better in her opinion because it allows for some debate.
Beck moved that the Planning Board recommend that course with the intention of announcing its support for postponement of both articles at Tuesday's town meeting no matter who makes the motion from the floor. Beck, Boyd and Susan Puddester voted in favor of that course; Chris Winters, who attended the start of the meeting, had to leave before Beck's motion was on the table.
The board's fifth member, Dante Birch, voted against recommending postponement of both articles after arguing that while Article 34 (the citizens petition allowing outdoor cultivation) might not be ripe for consideration by town meeting, Article 33 (the Planning Board draft that bans outdoor cultivation) was the product of a year of work by the board and deserves an up or down vote of the town.
"I think we did a lot of hard work on the indoor [regulations] and made a lot of clarifications [to a 2017 bylaw]," Birch said. "I don't want to throw that out."
Beck, who was elected to the Planning Board in June — after the drafting of Article 33 — asked Birch whether the board's language prohibiting outdoor cultivation was based on a "misapprehension" of citizens' interests in allowing outdoor growth by special permit. Beck's implication was that subsequent discussion in the spring and summer, after the Ag Commission's draft of what became Article 34 came to light, might better inform the Planning Board if it goes back to the drawing board after postponing action on either article.
"My viewpoint at the time [of Article 33's development] was we didn't have enough information about outdoor cultivation," Birch said. "There was no way to conceptualize the odor issue and the safety issue. Indoor [regulation] was a safe and logical step to bring us into further refining cultivation and manufacture and a series of other things.
"I don't think it makes sense to throw that work out. It only makes sense to continue our work in a thoughtful way."
The board heard from proponents and opponents of allowing outdoor cultivation by commercial operations (state law already allows very small outdoor plantings for personal consumption).
Backers included Boyd, who echoed an argument consistently raised by members of the Ag Commisson and other supporters of Article 34: the citizens petition adds more regulation for potential outdoor growers than the 2017 bylaw while continuing to require the approval of the Zoning Board of Appeals to have any marijuana establishment — cultivation, manufacture, testing or retail — in the town of 7,000.
Long before the board contemplated a motion to recommend postponement, which Boyd ultimately supported, she argued that if town meeting passed either or both articles, the board would work over the next year to refine the bylaw. Boyd noted that given the delay in the 2020 annual town meeting, the next regular town meeting could be as little as nine months away.
"I think the smallest, most conservative, safest step for the town would be to adopt the motions as they are presented," Boyd said.
Stan Parese scoffed at the idea that passing Article 34 could be characterized as "conservative."
Parese, a real estate attorney who represented opponents of what, to date, was the town's lone applicant for a special permit to cultivate pot, has been a consistent critic of Article 34, the citizens petition, before the Planning Board and Select Board, which recommended passage of Article 33 and rejection of Article 34.
Parese introduced two new arguments against Article 34 on Tuesday evening: It overreaches by opening up a large zoning district where cultivation was prohibited by the 2017 bylaw and its intent could be undermined if the commonwealth's Cannabis Control Commission goes ahead with new regulations currently under consideration.
The first point had to do with the Rural Residence 1 zoning district. The 2017 bylaw — passed before the CCC established rules governing recreational pot, which was decriminalized in a successful November 2016 ballot initiative — allowed marijuana production by special permit in Williamstown's RR2 and RR3 zoning districts and prohibited it at RR1.
RR1, a district not frequently debated in zoning discussions, is an immense rural zone characterized by its large Upland Conservation District overlay. It is, according to the bylaw, "intended to provide for residential standards compatible with the rural and upland character of sensitive environmental areas at the higher elevations." According to the town's use regulation schedule, there are a lot of things you cannot do in RR1 that you can do elsewhere in town — everything from multifamily dwellings to retail establishments to medical offices — and the Upland Conservation overlay prohibits even single-family homes in that portion of RR1.
Article 34 would allow outdoor cultivation of marijuana throughout RR1 by special permit.
Parese said RR1, at 22.5 square miles, includes more land than the combined acreage in RR2 and RR3, the zones where cultivation is allowed by special permit under the 2017 bylaw.
"You've learned tonight that the Upland Conservation District is now jeopardized by this, and that is huge," said Anne Hogeland, like Parese, a long-time critic of Article 34. "I don't think many of the people who signed that citizens petition would be happy to know that."
Parese also called the Planning Board's attention to a proposed change in the CCC's regulation on buffer zones between marijuana establishments (including growers) and schools.
Currently, cannabis businesses must be at least 500 feet from the property line of a kindergarten through 12th-grade school. The law specifically says municipalities can reduce that setback, and in 2018, the Attorney General's Office advised Amherst's town meeting that, "the 500[-foot] buffer zone from K – 12 schools may not be increased by the town," according to that town's meeting warrant.
Enter a proposal this summer to alter the CCC's school buffer by measuring 500 feet not from a school's property line but from "the nearest entrance of any preexisting public or private school."
"So if the main entrance of the school is itself more than 500 feet from the school lot property line (which is the case for Mount Greylock), the marijuana establishment lot property line setback from the school lot property line goes from at least 500 feet under the original regulation, to zero," Parese said on Wednesday.
Again, that is a proposed change in the regulation, and Ag Commission Chair Sarah Gardner told the Planning Board on Tuesday she talked to a representative of the CCC who said, "do not assume [the proposed changes] will be voted on."
But Parese argued that the malleable nature of state regulations points to the infant stage of the cannabis industry in Massachusetts. And if the "zero" setback was enacted and the town allows outdoor cultivation by special permit, the impact could be severe, especially for one high profile program at Mount Greylock Regional School, whose property spans RR2 and RR3.
The issue is that the pungent smell of flowering marijuana plants — something acknowledged by the industry — occurs in the fall, the same time that Mount Greylock's and Williams College's cross country running programs could be using trails near fields where pot cultivation could be allowed under the CCC's proposed revision.
"Mount Greylock High School has one of the premier cross country running programs in the commonwealth of Massachusetts with multiple state championships," Parese said. "It also is a tremendous program for inclusion. It's a huge team with both boys and girls.
"The idea that we would have those trails within 75 feet [of flowering cannabis plants] … and just dismiss it as something that's not particularly worth considering — frankly, I'm speechless. I'm literally speechless that as a Planning Board you are saying, ‘While the Cannabis Control Commission is actively in the process of turning the setback at the high school to zero and our trails go right up to that boundary line … .' If there is a parent of a Mount Greylock student who thinks that is a good idea, I would just be stunned."
The Planning Board supported passage of Article 34 by a 3-2 vote earlier this summer with the recognition that there were inadvertent errors in the citizens petition's language around indoor cultivation and cannabis processing facilities that needed to be "cleaned up" with floor amendments to bring Article 34 in line with the regulations in Article 33.
On Tuesday, Beck, who voted with the majority to recommend passage of Article 34 at the board's July 22 public hearing, said the idea of adding another amendment on the floor of town meeting to address the RR1 issue was a bridge too far.
"Before, when I was in favor of the amendment, it was because our concerns … were limited to, basically, scrivener's errors and just cleaning up what felt like was working from an earlier draft and not significant, substantive differences," Beck said. "At [the point where the changes are substantive], I feel like it's not really an amendment, it's us trying to write a bylaw on the fly."
Neither the Planning Board nor the petitioners who submitted an article to the warrant has the authority to "pull" their proposal in advance of the meeting. The options for the meeting members on Tuesday wil be either to vote up or down on Articles 33 and 34 (each requiring a two-thirds majority for passage) or to postpone or table either or both amendments if someone makes that motion from the floor of the meeting.
Town meeting is scheduled for Tuesday, Aug. 18, at 7 p.m. at Williams College's Weston Field. The rain date is Wednesday, Aug. 19.
In other business on Tuesday, the Planning Board voted unanimously to recommend that town meeting approve two other articles on the warrant generated by citizens petition: Article 36, a townwide commitment to the "Not in Our County" pledge, and Article 37, the "Equity" article, which, among other things, calls on all town boards, committees and departments to "reexamine and continue to create their policies and practices according to a commitment to accessible living."
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