| Joanne Cole |
Neighbors objecting to a commercial medical marijuana grow facility proposed for Penney Road recently got the planning board hearing they’d long wanted, but not the result they hoped for. A divided planning board on August 17 approved the application of Scott Liberty/Country Manor Properties, LLC, for a grow operation to be housed in a 7,000 s.f. metal building in the Rural Residential district on Penney Road.
At issue was whether the large windowless noncommercial structure and commercial grow operation are a permitted “commercial greenhouse” use, as the town’s code enforcement officer determined last fall, or qualify as some other permitted use. By a 3-2 margin, the planning board on August 17 concluded that the proposed use is “similar to” the permitted commercial greenhouse use and allowed under a different subsection of the ordinance.
Penney Road abutters will appeal the planning board decision to Superior Court, their attorney Larry Zuckerman confirmed.
With its finding that Liberty’s proposed use is permitted, the board also cleared away uncertainty about a similar marijuana grow application, John Lamparelli’s proposed facility at 440 Tobey Road in the Farm and Forest district.
Two board members, Cassandra Liberty and Doug McAtee, were present but recused themselves due to family connections with applicant Scott Liberty and did not participate.
A long and winding procedural road. From the first, objections to Liberty’s Penney Road project have focused on whether the large windowless metal structure and operation ‘fit’ in an area of homes, and whether it should be considered a ”commercial greenhouse.” “Commercial greenhouse” is among uses specifically permitted in the Rural Residential district, subject to planning board review. But greenhouse is not defined. The then-code enforcement officer, Debra Parks Larrivee, determined in fall 2020 that as an enclosed structure for cultivation, Liberty’s proposed use did qualify as a commercial greenhouse.
Neighbors sought to argue, among other objections to the project, that without glass or other translucence and sunlight, this wasn’t a greenhouse. They attempted challenges at the planning board and at the board of appeals, but both boards turned them away, advised by town counsel that they lacked jurisdiction. The planning board was advised to accept the code officer’s commercial greenhouse use determination and proceed with their usual review. They did.
Out of options, the abutters appealed to Superior Court, where a judge ruled on July 20 that without any avenue of local review, the abutters had been deprived of due process. The court took no position on the greenhouse use question, instead ordering the planning board to interpret the ordinance and make the use determination afresh, from scratch. The board’s August 17 public hearing, meeting, and decision were the result.
The August 17 hearing. After calling the meeting to order and approving minutes, planning board chair Don Libby turned to Dan Murphy, an attorney for the town. Murphy characterized the board’s task as determining whether the proposed use qualifies as a commercial greenhouse under one subsection of the Rural Residential provisions or as a use similar to a permitted use, allowed under a different subsection. Murphy’s mention of ‘similar uses’ foreshadowed the board’s eventual decision.
In the public hearing, there was little dispute that the metal building and grow operation would change the look and character of the area on Penney Road. Neighbor David Bartoletti spoke of the impact of 24-hour lights, fans, employees coming and going. He also dismissed Scott Liberty’s suggestion that the activity should be considered agriculture and treated like any other crop. The marijuana crop would be worth hundreds of thousands of dollars, Bartoletti countered, and pose heightened security risks.
Chris Griffith, familiar with area real estate valuation and brought in by abutters’ attorney Larry Zuckerman, spoke about the adverse effect on neighbors’ property values, a consideration in site plan review under the ordinance. If a nearby home were to go on the market, Griffith said, prospective buyers “would leave and not come back” once they learned “what was going on across the road.”
Applicant Scott Liberty himself acknowledged the controversy surrounding his plans. The town might want to consider a moratorium on similar marijuana grow projects, he said, in order to consider the issue fully. But for now, his project and the similar Tobey Road project comply with existing ordinances and should be approved, he argued. In seeking planning board approval, “we’re playing by the rules,” Liberty said, implying that the more than two dozen other marijuana grow operations he said the state told him are in town do not.
Differing interpretations: “greenhouse,” “agriculture,” “light industrial,” “uses similar.” The parties—and ultimately planning board members—disagreed not only about whether the proposed structure and activity amounted to a commercial greenhouse but also whether the proposed use could be considered “agriculture,” another allowed use in the Rural Residential district.
Liberty suggested that his planned operation is “agriculture,” which is defined in part in the ordinance as “the production of crops by cultivation of the soil.” Later, board member Steve Libby urged a traditional interpretation of “agriculture,” given other references to “gardens” and “soils,” while Tettlebaum noted that plants can be grown indoors and out, in a variety of mediums with and without soil.
Board members also connsidered whether aspects of the operation and structure were industrial in nature, as resident Michael Arata, an engineer, had argued in a letter read into the record. “Light industrial” uses are not permitted in the Rural Residential zone. Member Steve Libby summed up, “This is obviously a light industrial building and not a greenhouse.”
Decisive for the board’s eventual decision was what Tettlebaum called the “catch-all,” the ‘similar uses’ subsection 4.4.3.B.21 that town attorney Dan Murphy had signaled at the outset. It permits “uses similar to permitted uses as listed in sec. 4.4.3.B.” The parties—and board members—disagreed over what the catch-all catches. Does it cover all 40 uses enumerated in two separate lists in the Rural Residential section? Only the first 19, uses like “agriculture” that don’t require planning board review? Or perhaps only the second list, with 21 uses, including “commercial greenhouse”?
In the end, Tettlebaum took a broad view of the “uses similar” provision and said that, for him, the balance tipped toward permitting the proposed use. “There’s a fairly strong argument that it is similar to a greenhouse, that it is similar to agriculture, that it is similar to both, similar to several other provisions, arguably,” Tettlebaum said.
A majority of the participating board members ultimately did invoke ‘uses similar’ but drew its decision more narrowly: that this is for a use similar to a commercial greenhouse, its being “a structure enclosed as by glass or other transparent material used for the cultivation of an agricultural product,” namely the plant crop cannabis. The board split 3-2 in successive votes on the use determination, the underlying basis for the use determination, and on the application as a whole. Tettlebaum, vice chair Erik Hargreaves, and member Dan Ellingson voted in favor, with chair Don Libby and Steve Libby opposed.
What might happen next. How the court will interpret the ordinance on appeal remains to be seen, but the unseen judge nevertheless loomed over the meeting. The parties took care to build a record for review, as did the board guided by the town attorney.
The terms of the court’s decision can’t be known, but it is safe to predict that the broader issues raised by Liberty’s application—who makes use determinations and when, criteria for review, avenues of appeal, and policies about where and how marijuana can be commercially cultivated and/or processed in town—will get close consideration at the local level.
At their August 17 meeting, planning board members stressed that they were not setting policy for the community but instead only working to interpret and apply the ordinance provisions before them. Even so, the gaps and ambiguities in the ordinance that Liberty’s application has revealed, resulting in board members’ conflicting interpretations and 3-2 votes, as well as in protracted and ongoing litigation for the town, suggest that the zoning ordinance and policy alike merit attention and clarification.
Video of the planning board’s August 17 hearing and meeting can be viewed at this link. Key documents can be accessed at this link. The town’s zoning ordinance is here.
