Government Spotlight

Planning board approves Liberty project; opponents’ challenges to continue

| Joanne Cole |

With town attorney Phil Saucier looking on, the planning board on December 22 changed course on advice of counsel and voted to resume its review of an application from Scott Liberty for a medical marijuana commercial grow facility on Penney Road.

By meeting’s end, the board had formally approved Liberty’s application with a number of conditions. The approval marks a milestone for the project but not the end of challenges to it. Abutters who contend that the proposed use is not permitted in the Rural Residential zone will now appeal to Superior Court, their attorney Larry Zuckerman told NGXchange. They will also continue to pursue a challenge pending before the board of appeals.

At their previous meeting, on December 15, the planning board had suspended taking any further action on Liberty’s application until after the board of appeals makes a final decision. The neighbors had asked the board of appeals to overturn code officer Debra Parks Larrivee’s determination that the proposed use is a “commercial greenhouse,” allowed in the Rural Residential zone. On December 11, the board of appeals concluded that they lacked jurisdiction to hear the challenge and that the matter belonged in the planning board. The abutters promptly filed a request for reconsideration with the board of appeals.

Now, opening the planning board December 22 meeting, chair Don Libby was explaining that since their last meeting, town attorney Saucier had advised unequivocally that the planning board needed to move forward on the Liberty application, notwithstanding related questions before the board of appeals. Addressing the planning board on Zoom, Saucier said that the two boards and processes are “separate and distinct.” There are “no exceptions” to the rule that a planning board must rule on an application within 35 days of the public hearing, he said. Not coincidentally, the 35 days would expire that very evening, the 22nd.

After checking that members had no questions for attorney Saucier, Don Libby said, “We’ll move forward.”

And move forward they did. The board worked methodically through a list of open items compiled by town planner Scott Hastings—exterior lights, exterior equipment and noise, odor control, buffers and visual screening, among others.

Regarding odors, a prime concern of residents at the November public hearing, the board wrestled with practical questions about setting and enforcing an odor standard. How bad does the smell have to be to warrant action, members wondered. Pungent yearly ‘hen dressing’ on local fields was mentioned.

The board settled on tackling odor at the production end by requiring best available odor control technology and management. Scott Liberty told the board that he has proposed using “the Cadillac of systems” for odor control, and if one unit doesn’t do it, he’ll put in a second. The board was satisfied.

Next, what fences and vegetative buffers would be appropriate, given the property’s slope, boundary lines, the locations of abutters’ homes? A further wrinkle: where the residential meets the commercial, the ordinance requires visual buffering or screening along the property line. In this instance, Scott Liberty owns or controls both the commercial use (this project) and an adjoining parcel where he hopes to build a duplex for employees who might keep an unobstructed eye on the grow facility.

But no house has yet been built. Should the board require a fence be built with the grow facility? Could they impose a condition now that fencing be added later if a house were built? In the end, they determined that what matters is commercial use next to residential use, not simply next to a residential zone. Without a house on it now, the use is not residential, they concluded. Question answered: no fence on that side.

Following a recap of all the newly added conditions, the board unanimously approved the application, 4-0.

With their work done and attorney Saucier still in the Zoom room, board members took the opportunity to ask about the abutters’ request that the board of appeals review and overturn the code officer’s finding of a permitted “commercial greenhouse” use. Attorney Saucier declined to comment on specifics. He said he wasn’t asked to give an opinion on the jurisdiction of the board of appeals before they ruled on it and won’t until he’s asked.

For the abutters, with Liberty’s application formally approved, at least the procedural paths ahead are clearer. But it remains paths, plural, for them. They will appeal the planning board’s decision to Superior Court, attorney Larry Zuckerman confirmed to NGXchange, while also pursuing review at the board of appeals. The board of appeals will meet on January 11 to take up his request for reconsideration, Zuckerman said.

Videos of board meetings can be viewed here. Relevant documents can be accessed here.