NORTH ADAMS, Mass. — The mayor has filed a lawsuit against a proposed outdoor cannabis cultivation and named the Planning Board as part of the suit, claiming it had exceeded its authority in approving the special permit.
The suit asks that the Planning Board's decision be annulled.
Rustin Kluge of New England Alchemy LLC, operating as Ruby Farms, is planning to grow marijuana and process it at 537 Ashland St., currently the home of Berkshire County Construction. The Planning Board gave its approval on March 14
, based on the city ordinance that allows outdoor cultivation in the industrial zone.
The filing in Berkshire Superior Court dated April 1 states the city, as an abuttor, "contends that the decision is arbitrary, capricious, and is based on untenable legal grounds, and exceeds the authority of the Planning Board."
Named in the suit are Kluge, New England Alchemy and members of the Planning Board "in their official capacities as members of the Planning Board."
The filing states that the board failed to take a roll call vote as required by remote participation, and that the board did not take into account other provisions under its special permitting authority including that the operation will not be detrimental or have an adverse effect on the neighborhood, will not produce effects such as noise, dust, smoke, odor, fumes (etc.), and will not cause degradation to the environment.
Ruby Farms intends to mitigate the odor of the ripe buds, often described as skunk-like, naturally with plants such as lavender and marigold.
The suit states the board made no findings in regards to the odor mitigation and it also charges that the board failed to impose a vegetation or landscaping buffer.
Planning Board Chairman Brian Miksic said the mayor had warned the all-volunteer board that a suit was coming.
"Our thoughts are pretty clear that city of North Adams not that long ago explicitly allowed for facilities in certain zones in the city and the applicant brought forward an application to do just that," he said. "They followed all of the rules as set out in that ordinance and, it being an industrial zone, we don't see how there's much detriment, quote unquote, to a neighborhood since it is an industrial zone. So it was a fairly smooth process in the Planning Board."
The lot is 1.2 acres in an industrial zone. According to Kluge's application, he intends to grow outside in pots using sunlight as a more energy-efficient and sustainable operation. A community host agreement had been signed by the previous administration and a community meeting some months before.
The board had discussed the application for nearly an hour on March 14, and some members suggested postponing for another month, as well as Building Inspector William Meranti, to get more input but the proposal in the end was approved with some conditions on parking. The minutes state the vote was 9-1 but the vote was actually 8-1 according to the recording, though it is not apparent who the no vote was.
Miksic said the Planning Board did not realize that votes needed to be taken by roll call during Zoom meetings and has not been regularly doing that the last two years. That will be the process moving forward but he noted that vote was not in any way close.
City Councilor Keith Bona was concerned that it set a precedent. "I think there could be a better process for resolving this," he said.
The mayor said it was a matter of timing -- the city had 20 days in which file an appeal against the special permit and the city solicitor's opinion had been to take the matter to court. Macksey said the way it had been explained to her was that the city was taking action against New England Alchemy and the special permit, not against the Planning Board.
"It creates a whole other level of anxiety for the individuals on the Planning Board, who I appreciate," she said. "They're volunteering for this and this is not how I really want to change, but at the same time, I wish they had just listened and yielded to Mr. Meranti and continued that."
Miksic said the suit is a big unknown for the members of the board because it lacks a defense counsel.
"We are a volunteer board and expect the city to provide defense for us in these cases, but in this case, the city solicitor is the filing party on behalf of the mayor," he said. "So the Planning Board is left both without counsel and no one to give us any information about how to acquire counsel."
The city needs to defend the board, but how that will work is still unknown. He anticipates the planners discussing their position at the next meeting on Monday
He had reached out to the mayor but now that he had been served (on Thursday), they should no longer communicate, he said. Macksey said she had received two emails from Miksic and forwarded both to the city solicitor.
"I have many worried members of the Planning Board, again, just regular citizens on a volunteer board, who aren't used to getting served in Superior Court and they have no answers from the city as to what the process will be. Which is disappointing," said Miksic, adding he understood the mayor's prerogative to do this and did not begrudge her the right.
By Massachusetts General Law, an appeal is filed against the applicant and the board, he said, "she's not trying to sue us or have a court action against us personally, that's not her intention, and we all understand."
But it does leave the board itself without an expected defense counsel to take care of its legal arguments.
Planner Lisa Blackmer, who is also City Council president, and Bona thought the suit could send an adverse message to other boards and commissions.
"I am very disappointed that Mayor Macksey has chosen the path of suing a city board made up volunteers who have given their time and talent to do necessary work," said Blackmer. "It sends a stifling message to other boards, commissions, and the greater business community."
Bona said volunteer boards and commissions shouldn't feel that their decisions could result in lawsuits from others in City Hall.
"If the opinion is a board didn't do their process correctly there are better methods to work that out before throwing them lawsuits," he said. "I'm also very concerned about the use of the solicitor in this. The solicitor is to represent the city, including all officers, departments, boards, etc. For the Planning Board to be denied the right to speak with the solicitor seems very unfair. The solicitor should be providing an unbiased legal opinion to both the mayor and Planning Board, and they should have equal access to their consultation. Otherwise hire a lawyer outside the solicitor's office, which could get costly since the city will be paying both bills as it seems we are suing and defending ourselves?"
The mayor said the suit wasn't against the Planning Board and it was up to the applicant to defend the special permit.
Macksey said her goal was always "preserving the neighborhood" and that the entire situation could have been avoided if the board had agreed to delay a decision on the special permit for 30 days.
"Hopefully, we would have gotten our questions answered, and then gone one way or the other," she said. "But the reality is at the end of the day, I don't want an outdoor grow facility there."