Planning Board members Chris Winters and Stephanie Boyd participate in a forum on Willinet with Debby Dane, right.
WILLIAMSTOWN, Mass. — Once upon a time, there was a company called Massflora that wanted to grow marijuana on a Blair Road property.
It needed a special permit from the Zoning Board of Appeals to do so, and the application drew passionate opposition from residents near the property who worried about the plan’s visual impact, the potential for drawing thieves who might grow violent and the noxious odor produced by the flowering cannabis plants Massflora planned to start indoors and transplant to a field.
Eventually, Massflora withdrew its application for a special permit “in the face of opposition.”
That is the narrative that emerged from a discussion at the May meeting of the Mount Greylock Regional School Committee, which was deciding whether to make a statement about a cannabis production bylaw amendment on the June 8 annual town meeting warrant.
The narrative was so convincing that one member of the School Committee concluded that even though the proposed amendment, Article 29, would continue to allow special permits to grow commercial cannabis in Rural Residence 2, the zoning district that includes the middle-high school, the special permit process — specifically the opportunity to object — would protect the school from having pot farms for neighbors.
“That’s the mechanism,” Carolyn Greene said. “The public opposition. If this [bylaw amendment proposal] is more restrictive than what we have now, and if there’s an application in proximity of the school, it’s up to the townspeople to show up [at the ZBA] and voice their opinions and prevent something from happening.”
Ultimately, the School Committee decided to make no statement about Article 29 and instead draft a letter to be read on the floor of town meeting that, in part, “respectfully requests and expects any consideration of outdoor cannabis cultivation within any proximity to the Mt. Greylock Regional School is taken with the utmost seriousness.”
In other words, the School Committee requests that if and when another special permit to grow cannabis outdoors is sought, residents “voice their opinions and prevent something from happening.”
But what if that is not what drove Massflora away?
Stan Parese, a local attorney who was at the heart of the Massflora hearings in 2019, tells a different story about what happened then and has serious reservations about what the town’s Planning Board is proposing now. Parese contends that existing provisions in the town’s zoning bylaw, not opposition from abutters, led the cannabis grower to walk away from the Blair Road proposal. And Parese is worried that Article 29 will strip away the protections already in place in the town code.
Meanwhile, the Planning Board contends that the existing town code does not give neighbors enough protection from the negative externalities of commercial cannabis production. The planners say Article 29, the bylaw amendment it spent a year developing, is the town’s best chance to give the ZBA tools to regulate future special permit applicants.
Voters have until 6 p.m. on June 8 to decide who is right.
A brief recap
Williamstown’s local regulation of marijuana began shortly after a statewide ballot question decriminalized the drug in November 2016.
That spring, the Planning Board put a bylaw amendment before town meeting that defined commercial marijuana businesses and designated where they might be allowed in town.
Town meeting was told the intention was to get a bylaw on the books so that the town had something in place when the commonwealth figured out a regulatory regime in reaction to the 2016 ballot initiative.
At the time — May 2017 — most of the discussion revolved around marijuana retail establishments. The explanatory text of the annual town meeting warrant emphasized that, reading:
“This article will create definitions for establishments that retail marijuana products and establishments that cultivate and/or process marijuana. At present, retail uses would fall into general bylaw categories such as ‘other retail or service’ and be permitted in all business zones. This proposal regulates which zones such establishments are permitted in and how they are permitted. This proposal is in response to the passage of Question 4 during the 2016 election, the majority of which is now codified in G.L. c. 94G, Regulation of the Use and Distribution of Marijuana Not Medically Prescribed. Question 4 legalizes the cultivation and retail sale of marijuana and marijuana products for recreational use. It is expected that the Commonwealth will begin issuing state permits for such establishments in July 2018.”
Article 36 created no special development standards for marijuana operations, other than specifying they would need licenses from the state’s Cannabis Control Commission and Department of Health.
When many of the same residents who objected to Massflora raised their issues to the Planning Board, the panel drafted a bylaw amendment proposal that banned outdoor marijuana production in all parts of town and allowed indoor grows by special permit in the Limited Industrial and Planned Business zones if an applicant proved it could prevent odor discharges.
After the Planning Board advanced that highly restrictive bylaw to the town meeting warrant, the town’s Agricultural Commission released a competing bylaw amendment proposal that would have allowed outdoor production by special permit in RR1, RR2, RR3 and Limited Industrial with a maximum allowable canopy of 50,000 square feet — half the maximum canopy allowed by the CCC.
The Planning Board spent most of 2020-21 developing what ultimately became Article 29, a proposal that, in some respects, echoes the proposal the Ag Commission put on the 2020 annual town meeting warrant via citizens petition. That should not be a surprise. The Planning Board has worked with the Ag Commission to develop a bylaw that both regulates cannabis production and allows farmers to reap benefits from the commonwealth’s newest cash crop.
The chair and vice chair of the Planning Board recently sat down for a 15-minute interview on the town’s community access television station, Willinet, to explain why town meeting should approve Article 29.
“There are a number of changes [to the current bylaw],” Chair Stephanie Boyd said. “All of them put restrictions on the growing of cannabis.”
The proposed bylaw amendment would:
• create a 150-foot setback from neighboring property lines to the security fences that the CCC mandates for outdoor grows;
• require that those security fences be obscured by vegetative screening or topography;
• create a 500-foot setback from any neighboring residence not held in common ownership with the special permit applicant; bans indoor production of cannabis in the rural residence zones;
• require an odor dispersal plan that “utilize[s] Best Available Technology;” creates a “nuisance” provision that prevents activities “which may impair the normal use and peaceful enjoyment of any property, structure or dwelling in the area;”
• and enable the ZBA to hire an outdoor consultant, at the expense of the applicant, to review plans as part of the permit-granting process.
The 2021 proposal doubles the setback of 75 feet in the 2020 Ag Commission-drafted bylaw amendment and adds the nuisance provision.
But it also doubles the allowable size of an outdoor grow to the state’s maximum of 100,000 square feet on a property with a minimum of 5 acres. That move both angers and puzzles critics of the Planning Board’s draft; those critics note that the compromises that would have capped outdoor grows at 5,000 square feet received majority support at the 2020 town meeting, just not the two-thirds majority needed for passage.
In general, though, the proposed bylaw amendment creates a number of rules for cannabis production that were not part of the 2017 bylaw amendment — mostly because the latter did not add anything in the way of cannabis-specific rules to the town code.
“In short, the proposed bylaw doesn’t lessen current restrictions,” Boyd told the Willinet audience this spring. “It increases protections to residences yet provides sufficient economic opportunity to farmers. It’s really a balanced approach.”
‘Emission of odors’
Parese, an attorney with 20 years of experience in real estate transactions in Williamstown, says Article 29 actually would make it easier for cannabis cultivators because it would supersede restrictions already written into the town code — just not in the section on marijuana that was added in 2017.
Parese points to Section 70-5.3, paragraph E, which reads:
“Odors. No nonagricultural use shall cause the emission of odors detectable more than 200 feet beyond the boundary of the premises for receptors within a Limited Industrial District or more than 100 feet beyond the boundary of the premises for receptors elsewhere.”
Why that matters is because the Commonwealth of Massachusetts specifically designates cannabis as a nonagricultural product. As such, Parese argues, the town bylaw already on the books would subject special permit applicants to the 100-foot test for odor, a stricter standard than the “Best Available Technology” for dispersal test in Article 29.
“In December 2016 — and legislatures don’t usually move at that pace — the state said that for purposes of zoning, marijuana is not agriculture,” Parese said. “The reason they did that is if the state were to say in the zoning statute that marijuana is now considered for purposes of home rule considered to be agriculture, there would be no control of marijuana anywhere in the commonwealth on any lot that is 5 acres.
“I don’t think, as powerful as the marijuana lobby is, legislators will get to the point of saying, ‘We’re going to turn the entire state over to cannabis production by anyone with a 5-acre lot.’ “
And if it did, the provisions of Article 29 itself would be moot. That is why farmers today have the right to spread fertilizer when the smell can drift “more than 100 feet beyond the boundary of the premises,” as stipulated in the town code. If Beacon Hill decided that cannabis — for purposes of zoning — is, like corn, an agricultural product, cultivators would not need a special permit or meet the requirements outlined in the Planning Board’s draft bylaw.
Parese argued the 100-foot odor test for the ZBA in 2019, and he bristles at the suggestion that Massflora walked away from the town because, at the time, he was working for a client who had deep pockets and could fight the special permit in court.
It is more accurate, he said, to say that his client — unlike many Williamstown residents — had the ability face the potential appeals that would come from Massflora and its parent company, Colorado’s Euflora, which was reported in 2015 to have as many as 2.5 million visitors per year at just one downtown Denver location.
Andrew Skinner, left, and Stan Parese participate in a forum with Willinet’s Debby Dane.
Parese believed in 2019 and he believes today that Massflora’s special permit application should have been denied because it did not meet the existing development standard for nonagricultural businesses in the town.
He explained his position to the Select Board at its May 24 meeting.
“This is about the fourth time I’ve heard in conversation that the Massflora proceeding was resolved as it was for, really, no good reason … that the applicant simply backed off because of the perceived resolve and resources of a person who was opposing that,” said Parese, who does not currently have a client he is representing over the proposed bylaw amendment. “I will tell you that neither I nor any capable, ethical attorney would bring any argument to any kind of tribunal, whether it’s a court or a board, that is without basis. The reason you do that, frankly, in addition to your ethics, is it’s a good way to burn your career. I, and other attorneys, appear before boards and courts all the time, and the moment you get the reputation of being someone who will try to get the court to make a mistake or who will waste the court’s time, it’s time to go into another line of work.
“There was a very sound basis under the odor standard, which is an objective one, 100 feet. I was not privy to [Massflora’s] attorney-client conversations, so I cannot tell you with certainty what their assessment was. My personal feeling is it had to include the fact that they were going to have a very hard time, if not impossible time, meeting that standard. And there was someone [Parese’s client] interested who would see that through. … If the power dynamic was different, if that were located in a place where the surrounding property owners did not have the resources, that developer maybe makes a different calculation because they’re not worried about someone who will see it through to the end.”
Town Planner Andrew Groff, who provides staff support to the five Planning Board members, told the Select Board that nothing in Article 29 would eliminate the odor provision from the town’s existing development standards.
“What the Planning Board is proposing in terms of special, additional regulations that are unique to this use is additive,” Groff said.
Anne Hogeland, also an attorney and a critic of both the Ag Comm’s 2020 bylaw amendment and the 2021 Planning Board proposal, said the odor provision in the current bylaw is “far more protective” of neighbors and that the development standard could be trumped by the “Best Available Technology” language in Article 29 if it passes.
“When there are two provisions in a statute that are potentially conflicting, the more narrow is the one that controls,” Hogeland told the Select Board. “I think an attorney could make that argument, that the odor control standard referred to earlier in our current bylaw — an attorney could argue that doesn’t apply to marijuana because we would have a more specific, focused ‘Best Available Technology’ standard for marijuana, which is substantially weaker and is not actually a performance standard.”
The Planning Board would answer that it did not create the bylaw language in Article 29 out of whole cloth. Rather, its yearlong process included a study of bylaws in other communities and consultations with outside experts in the field, including the CCC and legal consultants.
“In 2017, we opened the doors wide open and said you can build ugly, warehouse-type facilities in RR2 and RR3,” Boyd told the Select Board on May 24. “Right now, Stan [Parese] pointed out very clearly all the properties that are up for grabs up to the fence line in South Williamstown up to the school, unless we make some rule changes. So we have to make some rule changes.
“I’m suggesting the best bet for getting a two-thirds vote at town meeting is to go with the rules the Planning Board is suggesting. … The town’s legal counsel believes and has advised us that, yes, this is more protective of the town.”
Little pink houses
To help voters understand the impact of the setbacks in its proposed bylaw amendment, the Planning Board created a pair of maps that purport to show which properties around the Mount Greylock Regional School could and could not be used for commercial cannabis under the current bylaw and under Article 29.
The Google Earth images show a startling difference with considerably more parcels covered in pink — indicating cannabis cultivation would be prohibited — in the “after” image than the “before” image.
Leaving aside Parese’s argument that the “before” image ignores the protection afforded by the current 100-foot odor development standard, he still has problems with the map.
First of all, he notes that it assumes all the parcels depicted will continue to be owned by the current owners in perpetuity. If a cannabis grower buys adjacent parcels, the setbacks — both on property lines and the 500-foot pink circles depicting setbacks from residences not in common ownership — would disappear.
“To remove any of those circles that are on my property, all I have to do is change my mind and say I want to grow marijuana,” said Parese, speaking hypothetically (he actually lives in the town’s General Residence district). “On every single one of those, the property owner has the right to say, ‘Take the circle off mine. I want to grow marijuana.’
“That map is profoundly misleading in that regard.”
Parese also challenges the number of 500-foot dots on the map that has been circulated by the Planning Board. He suspects that the computer program that generated the map attached a dot to any structure in the Google Earth image. But Parese has identified barns and a shed on the middle-high school property that were tagged as “residences” that would be afforded the 500-foot protection under Article 29.
Boyd at the May 24 Select Board meeting said Parese was right. There are “a couple too many buildings,” and the Planning Board would work up a revised version of the “after” image in the comparative maps.
Parese also said the Planning Board map “pinks out” the Waubeeka Golf Links property which, while not adjacent to the Mount Greylock Regional School, is also not far from the school.
“There’s a lot of marijuana that could potentially be grown on this map that if someone is credulous and reads the title and looks at the picture, they’re not being accurately informed,” he said.
Parese said he did not believe that the Planning Board was intentionally misleading anyone about the potential impact of Article 29, but the image is still problematic.
“Given the magnitude of these decisions, especially as they relate to the high school, I’m troubled that decisions are being made based on information that is, at best, inaccurate, and, at worst, misleading,” he said in an interview two days after that Select Board meeting. “You can’t make a good decision without accurate, complete information, and that map has neither. And that’s troubling.”
Andrew Skinner, a frequent participant in Planning Board proceedings over the last year and a critic of Article 29, joined Parese in a 45-minute interview on Willinet to talk to about his objections to the proposed bylaw amendment and the way the planners are promoting it.
“Even using the very misleading map the Planning Board has generated, I can identify at least a half dozen potential sites orbiting the school,” Skinner said. “I really feel strongly, as a parent, this is not OK. Those odors, which can go up to half a mile, are going to reach the building. They are most certainly going across the extra-curriculars.
“If we have marijuana grows right next to the school, we’re sending a message that it’s A-OK. Everybody does it. And, also, they’re going to be smelling the odors.”
Another thing to remember about that November 2016 statewide vote to decriminalize marijuana: Williamstown voted yes, by a large margin.
The practical implication of that vote now is that the town cannot ban cannabis operations entirely, not without holding a ballot vote, according to state law. That is one reason why the May 2017 town meeting passed the marijuana bylaw rather than taking action to ban retail and production in the town.
Because the town has to allow some type of production, the Planning Board’s 2020 bylaw proposal, which would have allowed just indoor grows, would have been legal. But some environmental activists in town would have been horrified.
Commercial cannabis production indoors is a highly water-intensive and power-intensive operation.
At a Planning Board meeting in February, Wendy Penner of the town’s Carbon Dioxide Lowering (COOL) Committee addressed the issue of indoor cannabis production’s environmental impact.
“I know there are many people in town that you’re hearing from who are very concerned about outdoor cultivation,” Penner said. “And I think it’s very important that you consider and understand the very significant impact of the energy-intensive indoor cultivation, not just of cannabis, but, really, any crop. It just happens that this is on our radar right now, but really, indoor cultivation is extremely energy intensive for all crops.”
Boyd, who also serves on the grassroots COOL Committee, successfully argued in favor of a renewable energy provision in the bylaw during the Planning Board’s deliberations in 2020 and again this year.
“[Article 29] requires that 25 percent on-site renewable energy and waste-management plans be provided for resource-intensive indoor facilities,” Boyd said. “Today, we have no requirements for that.”
A little discussed element of Article 29 is a footnote that would allow outdoor commercial cannabis production of up to a 5,000 square foot canopy “by right,” i.e, without a special permit, in RR2 and RR3.
The footnote does not come up in the Planning Board’s presentation on Willinet, and it wasn’t discussed in a flyer from the Planning Board that was handed out at the May town election. Parese wonders why the by-right land use was added in the form of a footnote rather than creating another row in the use table for 5,000 square foot grows that would have put a “Yes” in the box below RR2 and RR3.
“I don’t know what percentage in town knows there’s a by-right use in there,” Parese said. “A lot of people pick up the warrant on the way into town meeting.
“My goodness, it could not be more obviously less restrictive. There is no such thing as less restrictive than by right.”
Parese said passing Article 29 with the by-right provision would be unprecedented. Every other commercial cannabis use in town, including retail, requires a special permit with review from the Zoning Board of Appeals.
The 2017 bylaw amendment that went to town meeting originally would have allowed marijuana cultivation, presumably indoors, by right in the town’s Limited Industrial zone, and it would have allowed by-right marijuana retail establishments in the town’s Planned Business zone.
ZBA member Keith Davis suggested from the floor of the meeting that all uses be changed to require a special permit and ZBA review. That amendment was approved on a voice vote.
There is one point in the argument over commercial cannabis production that no one disputes: Local farmers have a hard time earning a living in an industry that is a pillar of the town’s history but has fallen on hard times in recent years.
The town’s zoning districts as seen in a mapping program on the town website. Rural Residence 2 is the large solid light green areas. RR3 is the narrow strip of green in the middle along Route 7.
In fact, a different warrant article on June 8 annual town meeting warrant reflects just how difficult it is for farmers.
Article 24 will ask if the town wants to spend $56,000 in Community Preservation Act funds to support an Agricultural Preservation Restriction on 18 acres of prime farmland. Without the APR, the fear is that the grower will be forced someday to sell off the acreage to private home developers.
Members of the agricultural community have argued going back to last spring that an outright ban on outdoor cannabis cultivation would unfairly deny them a potential revenue stream from a farm product that the commonwealth voted to legalize five years ago.
That is why the town’s Ag Commission drafted a competing bylaw amendment for the 2020 annual town meeting and why its members worked closely with the Planning Board in the ensuing eight months to produce what became Article 29.
“I think [protecting farmland] is something that we all want to see,” the Planning Board’s Boyd said in the Willinet telecast. “We lose a lot of farmland in the state and the country. And most of the farmland being lost these days is to low-density development. Since [100,000 square feet, or 2.3 acres] is such a small area on a farmer’s property that is profitable, it might enable them to keep their whole farm open.
“We think it’s good both for the farmer and for a community that values its agricultural history.”
The School Committee, too, while not expressing an opinion one way or another about Article 29, recognized that local farmers are worth protecting.
“We are supportive of our neighbors who continue the long and important traditions of the family farms that serve as important economic drivers in our community and a powerful means of connecting the past, present, and future of Williamstown,” the School Committee’s letter reads, in part.
Critics of Article 29 from time to time have asked why the town needs to allow the maximum 100,000 square foot canopy permitted by the commonwealth in order to support its family farms.
Boyd’s answer on the Willinet telecast was that cannabis is a tricky product to grow and the upfront costs of getting through the CCC permitting process and building security fence mean that growers need to have larger canopies in order to be profitable.
Parese cited to the Select Board a 5,000 square foot (Tier 1 in the CCC’s nomenclature) grow in Stockbridge that is generating more than $300,000 per year according to documents on file with the CCC.
Realtor Paul Harsch, who admitted to being late to the conversation, asked the Planning Board at its April 13 public hearing whether it had considered what is “the maximum a local farmer could conceive of living within so that we don’t end up being a draw for big outside corporations. … What we want to see is a means by which the small farmers can add to their income, so they can survive.”
Brian Cole, a member of the Agricultural Commission had an answer to Harsch’s question — just not one Harsch may have been expecting.
“I was vaguely insulted by Paul Harsch’s statement about how much money I should be satisfied making as a farmer,” Cole said. “However much money he’s made hawking real estate, I want to make that much, too, here in town. In fact, I want to make 10 times that much. And if I can do that growing a plant, doing something that I love, that would be awesome.”
A motion to amend
Everyone involved in the cannabis issue walked away from the 2020 annual town meeting hoping that the 2021 meeting would go differently.
But in at least one respect it will be very much the same: The Planning Board’s proposal will face (at least) one substantive amendment from the floor.
Parese used his forum on Willinet to explain a motion that he plans to make on June 8 at Williams College’s Farley-Lamb Field, assuming that another resident does not beat him to the microphone.
He said he will move to change the language in the bylaw to designate that outdoor cannabis cultivation is not allowed in any of the town’s zoning districts, replacing the current “BA” (indicating a special permit is needed) to “No” in the RR2 and RR3 districts.
“People say they’re afraid of having chaos at town meeting, but people can understand no,” Parese said.
He also suggested that environmentalists concerned about pushing all the town’s potential cultivation into the indoor grows also have a recourse through an amendment they could make.
“If someone else says, ‘I want to amend to say that in the entire town, the total canopy can’t be more than 10,000 square feet,’ that would mean that for indoor only, we’ve reduced the carbon footprint by 90 percent,” Parese said.
“There has been some concern that if the same thing happens as last year — nothing — we’re back to the existing bylaw,” Parese said. “I’m not enthusiastic about either of these bylaws. But if we default to our existing, the odor standard is actually stronger because it’s 100 feet, and it’s objective. And our existing ZBA rules allow the ZBA … in their discretion, to increase setbacks.”