Penney Road project draws opposition, prompts Planning Board questions

| Joanne Cole |

A November 17 public hearing and site plan review on an application by Scott Liberty for a building on Penney Road featured dueling dictionary definitions of “greenhouse” and ended with the planning board referring the matter to the town attorney for a comprehensive review. 

At issue is a proposed 70 x 100 s.f. windowless metal building that would house a commercial medical marijuana cultivation operation in the Rural Residential district on Penney Road, near its junction with Intervale Road.  No retail or customer-facing activity is anticipated.   

Both the intended use and the details of the project are under challenge.  

“Greenhouse” vs. “greenhouse.”  A principal issue is whether the proposed structure and use are permitted in the Rural Residential district.  The answer may depend on how “greenhouse” is defined. 

As town planner Scott Hastings outlined to the board, “commercial greenhouses” are permitted in the Rural Residential district, subject to site plan review.  But “greenhouse” is not defined in the ordinance.  (Find a link to the current ordinance here.).  

The attorneys were ready with different dictionaries.      

Representing neighbors who oppose the project, attorney Larry Zuckerman shared several definitions, including one from the International Building Code, that emphasize glass or translucence and the role of sunlight in warming greenhouse plants and soil.  A windowless metal building that relies on high-intensity lights rather than sunshine cannot be considered a greenhouse, he argued. 

Attorney Hannah King, representing applicant Scott Liberty, argued that function, rather than any specific design, is the essence of a greenhouse.  Her preferred dictionary defines a greenhouse as a “structure enclosed (as by glass) and used for the cultivation or protection of tender plants.”  The parentheses indicate that glass is optional, not essential, King said. 

Town code enforcement officer Debra Parks Larrivee apparently agreed with King’s view that enclosed cultivation is enough to make this a commercial greenhouse.   

Board members were clearly uncomfortable with that conclusion. They discussed whether they are bound by the code officer’s interpretation, and they put that question at the top of the list for the town attorney. 

Applicant vs. tenant/end user.  Further complicating the picture is who is—or who isn’t—before the board.  Applicant Scott Liberty acknowledged that he will not run the facility but will instead lease to an as-yet-unknown tenant. 

As a result, operational questions-—hydroponic vs. soil, organic or not, tiered or not—that affect the facility’s water use, need for pesticides, density, and other matters, are unknown.  Without information on the operation, its scale and processes, and how many caregivers will be cultivating, Zuckerman argued, the board cannot assess possible impacts and risks. The town could even be sanctioning an unlawful caregiver-grower “collective.” 

“Really, this is not the applicant you should be evaluating,” said Zuckerman. Without a tenant and plan, even if this were deemed to be a greenhouse, “you have absolutely no evidence to evaluate whether this would in fact be a safe and hazard-free operation,” he said.   

Neighbors cited a host of possible adverse impacts: strong odors, water demand, employee traffic, lights on the building, lights on the parking lot, noise, inadequate buffering and screening, security and safety, fire hazards, and possible contamination of soils and water from pesticides or fertilizers. To Zuckerman, the fact that such issues must be considered shows that the proposed operation is more like a “light industrial” use, not permitted in the Rural Residential zone.

To help address concerns about operations and impacts, applicant Liberty had invited Justin Dobson, his tenant for a new medical marijuana grow facility on the site of the former Cyr auction house at 104 Lewiston Road in Gray.  Dobson described his Gray operation, “just getting off the ground,” as a low-traffic, mostly daytime, soils-based operation with air filters to control odors. He also acknowledged that the New Gloucester facility might well differ and that he is not its tenant.   

Board member Charlie Burnham wanted to know more about the end user and the operation.  “There’s a whole lot of gray area there,” he commented.  Chair Don Libby appeared to be the most troubled by the unknowns.  Is it legal, he wondered, for the planning board to review a project “not having the end user in front of us? Are we reviewing and approving something so that collectives could use it in violation of the law?”  Don Libby’s questions will go to the town attorney.

Placement and precedent.  Setting a possible precedent in the Rural Residential district concerned residents, including James Randall of Atwood Road.  He wrote: “Should this pass and the facility be allowed in the rural residential zone, I’m afraid that the flood gates will be opened and we’ll find applications being submitted requesting like facilities in other residential areas.”  

Resident Steve Hathorne pointed to planner Hastings’s memo that describes the application as “a 70 x 100 non-residential building in a rural residential zone.”  “We’ve done great planning in this town” Hathorne said, why now “put something where it doesn’t belong?” 

Resident Terry DeWan, a landscape architect whose firm did a 24-acre greenhouse project on the Kennebec, spoke of the need for “visual compatibility” with what’s in “the immediate vicinity.”  Neighbor David Bartoletti called the proposed building “huge” amid neighboring houses. 

And what will happen once the marijuana market boom subsides, abutter Max Estes asked. What will the next uses be: Self-storage?  A warehouse?  A bar?

Looking back, looking ahead.  Originally, Scott Liberty planned to build a duplex and single home on the site, but discovery of extensive ledge on the property scuttled that idea, he said.  A building “that is nice and clean and quiet,” as he put it, for a marijuana grow facility, currently in high demand, became the answer.      

“To him this is just business,” neighbor Julie Mason wrote to the board, “but to the neighboring properties it’s personal.  Every one of the neighbors to this proposed facility made an investment too, but that investment was in their homes, a place where they wanted to raise their families and be able to have peaceful enjoyment of their outdoor areas.” 

By evening’s end, board members’ continuing questions about uses, hazards and impacts, interpretation and governing law led them to seek review by counsel. The board will continue its review in December. In the meantime, perhaps the town attorney will have weighed in on the controversy – and on how “greenhouse” should be defined. 

To view the November 17 planning board public hearing and meeting video, click here. An earlier, related planning board meeting on October 20 can be viewed here.