| Joanne Cole |
Neighbors opposing Scott Liberty’s proposed medical marijuana grow operation on Penney Road were disappointed a second time by the board of appeals when the board on Monday rejected their appeal as filed too late.
Neighbors have been trying for weeks to challenge code enforcement officer Debra Parks Larrivee’s determination that the project qualifies as a commercial greenhouse use, a use specifically permitted in the rural residential zone. Among other objections, they contend that the proposed 70’ x 100’ windowless metal building is not a greenhouse and that the grow operation is more akin to a “light industrial” use, not permitted in that zone.
Previously, on December 11, the board of appeals had refused to hear the abutters’ challenge to the greenhouse use determination, concluding they lacked jurisdiction and deferring instead to the planning board where Liberty’s application was proceeding through site plan review. The abutters requested that the board of appeals reconsider its denial.
This time, January 11, the board of appeals reversed course and found—apparently on advice of the town attorney—that it did have jurisdiction and could review the code officer’s use determination. But the board then ruled that the appeal had come in too late, beyond a 30-day window set out in the ordinance.
At issue was when the clock started running for the abutters to appeal the code officer’s ‘greenhouse’ use determination. Board member Kathleen Potter cited section 6.3.5 of the zoning ordinance, which reads “an aggrieved party shall commence the appeal within 30 days after a decision is made by the Code Enforcement Officer.” She noted that on October 8 neighbors were sent certified letters informing them that an an application for a commercial marijuana grow facility was going before the planning board. By October 14 acknowledgments of receipt had been returned and two abutters had written letters in opposition, Potter said. Because the abutters knew about the facility by October 14 at the latest, their appeal, filed on November 18, was at least four days too late in her view.
Representing the neighbors, attorney Larry Zuckerman tried repeatedly to argue that he was raising a use challenge and, as a result, what matters is when the abutters were notified of the specific use, namely the greenhouse. “The issue is notice: when was notice given to the appellants?” he said. “The issue is greenhouse, not a grow facility – notice of greenhouse.” Without notice that the code officer had approved this as a commercial greenhouse use, he seemed to be saying, how could abutters bring a challenge on that basis or even know when the code officer had made a decision that started the clock for an appeal?
Board members weren’t convinced that there’s a distinction between a grow facility and a greenhouse. Norm Chamberlain said that the code officer “had determined that a medical marijuana grow facility and a commercial greenhouse are the same thing” and that was “common knowledge” by October 14, enough to start the appeal period. Others apparently agreed, as the board proceeded to reject the appeal as untimely, 3-0 (R. Hamilton, Chamberlain, Potter; D. Libby and J. Hamilton not attending).
With an appeal to Superior Court his next stop, attorney Zuckerman asked to make a statement for the record of what he would have argued if permitted. He repeated his view that timeliness depends on notice of the greenhouse use. He said that Scott Liberty’s October 6 application to the planning board makes no reference to commercial greenhouse, the notices to abutters do not mention commercial greenhouse, and he himself was given conflicting information by town staff about the use. Code officer Larrivee told him on October 15 that she thought the use was “agriculture,” Zuckerman said, but he was informed by town planner Scott Hastings on October 19, “’No, it was a commercial greenhouse’” – factors, among others, making the November 18 appeal timely in Zuckerman’s view.
“Due process,” said Zuckerman wrapping up, “requires notice to the applicants which they never got here, that the use was determined to be a greenhouse.” Disagreement followed between Zuckerman and Larrivee over whether the initial application had been for a commercial greenhouse. Kathleen Potter responded that, in any event, letters of objection from two abutters “do refer to commercial greenhouse,” evidence that at least some neighbors were aware of the greenhouse characterization by October 14 at the latest.
Whether due process requires formal notice of a use determination and when the appeals clock begins to tick are among questions that may ultimately be answered in court. With their challenge rejected by the board of appeals, the neighbors’ recourse is now Superior Court, where attorney Zuckerman was already headed after the planning board approved Liberty’s application in December.
Back at the board of appeals on Monday, however, the complex and challenging nature of the matter before them was indirectly acknowledged by board member Norm Chamberlain. After untangling some procedural issues, Chamberlain offered the self-deprecating observation, “As an attorney, I make a very good engineer.”
The attorneys—and judges—will apparently be taking it from here.