Government

Boards grapple with Liberty application and town zoning ordinance

| Joanne Cole |

The challenge of town committee work has been on vivid display recently as two town boards–the planning board and the board of appeals–have separately grappled with an application by Scott Liberty for a non-residential building on Penney Road to house a medical marijuana grow operation.

Liberty has proposed a 70’ x 100’ windowless building on the site within the Rural Residential district. The building would be leased and production run by an as-yet-unselected tenant, Liberty has said. As a result, operational details are not yet known.

Neighbors have objected on a host of grounds, among them, that code enforcement officer Debra Parks Larrivee erred when she concluded that, because it will be an enclosed structure for cultivation of plants, the proposed use is a permitted “commercial greenhouse.”

Both parties appear to agree that commercial greenhouses are allowed in the Rural Residential zone with site plan review by the planning board. But a windowless building—no sunlight, no glass or other translucent materials—is not a greenhouse, the abutters contend. Even if the building were considered a greenhouse, the abutters say, the operation is more like a light industrial use, not permitted.

So which board then, if any, should hear the abutters’ challenge to the code officer’s use determination?

In a surprising turn, each board looked to the other, in part because of ambiguities in the ordinance about what can be appealed, and when.

On December 11, with lawyers on hand and arguing for each party, the board of appeals concluded they lacked jurisdiction to hear the challenge. Members noted that site plan review is under way and the matter already in the planning board’s hands. “This is a planning board issue,” said board of appeals chair Ray Hamilton.

The board of appeals’ unanimous decision that “the zoning board of appeals does not have jurisdiction in this matter – that this is a decision to be made by the planning board” leaves in force the code officer’s approval of the use. The abutters’ attorney Larry Zuckerman promptly filed a request for reconsideration.

For their part, four days later, members of the planning board looked over toward the board of appeals. The planning board had already been advised by the town’s attorney that they could not overturn the code officer’s decision; it was her call, not the planning board’s. And now the board of appeals was refusing to take up the question? planning board members seemed to ask.

They recalled an instance a few years back when the CEO’s use decision was contested and the board of appeals accepted the case and made a decision. Why not this time? they wondered.

Chair Don Libby argued that a use decision has to be appealable and resolved early; otherwise the planning board could end up approving something that later turns out “maybe shouldn’t have gone to the planning board at all.”

Steve Libby worried that if the planning board proceeds with its review, “it will seem like we’re approving the use.” He wanted to wait to see what the board of appeals does; that board could still reconsider and overturn the CEO’s use decision.

Member Ben Tettlebaum wasn’t so sure about suspending their review. The ordinance may be ambiguous on key points, he said, but it says clearly that the planning board must rule on an application within 35 days after the public hearing. “‘Shall’ means shall,” he said.

Town planner Scott Hastings agreed, strongly urging the board to go forward and rule within the 35 days, namely by December 22. Even so, a divided board voted to suspend their review of Liberty’s application until the board of appeals decides on the abutters’ request for reconsideration.

In yet another possible turn, however, a planning board meeting is scheduled for December 22 at 7 pm on Zoom. The board might change course and proceed to a ruling after all. Meanwhile, the board of appeals’ 45-day clock on reconsidering the abutters’ appeal is ticking.

In a word, it’s complicated.

Videos of the boards’ meetings can be viewed here. Relevant documents can be accessed here.