Planning Board deadlocks, won’t reconsider Penney Road project

Attorney John Branson argues against reconsideration | meeting video

| Joanne Cole |

By the narrowest of margins—a tie—the Planning Board on Tuesday declined to reconsider its August 17 decision deeming the commercial marijuana grow facility proposed for Penney Road a permissible use in the Rural Residential zone.

The September 7 meeting originated with a letter from attorney Larry Zuckerman representing neighbors who oppose the Scott Liberty/Country Manor Properties’ Penney Road project. In it, Zuckerman argued, among other points, that the Planning Board misinterpreted the zoning ordinance when they concluded that Liberty’s proposed use was “a use similar to” a commercial greenhouse. “Commercial greenhouse” use is explicitly permitted in the Rural Residential zone. Neighbors have argued that Liberty’s proposed operation in a 70’ x 100’ windowless metal building does not qualify.

After protracted procedural discussions and arguments from attorneys pro and con, the formal motion to reconsider deadlocked 2-2, three members of the seven-member board having recused themselves. The result: motion failed, no reconsideration. The abutters will now pursue an appeal in Superior Court.

At the outset, board members discussed whether they could even entertain Zuckerman’s request for reconsideration. Lacking an established protocol, they settled on giving both sides an opportunity to address the matter. At that point, member Steve Libby recused himself. He said he had discussed the board’s August 17 vote with applicant Scott Liberty, apparently in some detail, thinking that the matter was over and done with. “I would never have done this, if I ever imagined this would be coming back here again,” Libby said.

Libby said he also talked about the matter with other planning board members, including at the community fair. It appeared that another board member had also spoken to Liberty and that several board members had chatted at the fair about their recent decision.

In recusing, Steve Libby referenced long-standing legal guidance that planning board members are “like a jury,” and “are strictly prohibited from discussing the project outside the public meeting” except with the code enforcement officer and town planner. Saying he didn’t want to expose the town to a possible claim by participating further, Libby recused himself. He apologized to applicant Liberty, the neighbors, and his fellow planning board members.

Procedural discussions followed, and then arguments by the attorneys. Zuckerman read his letter into the record and commented on why the ‘similar use’ provision was not a ‘catch-all’ and should not apply in this instance, among other points. Representing applicant Scott Liberty, attorney John Branson challenged Zuckerman’s interpretation and objected on procedural and practical grounds. He and his client weren’t given fair notice, Branson said, there’s no provision for reconsideration, and any reconsideration would require a public hearing and a new record and would open further questions. The abutters can still appeal to Superior Court, he noted. “Long and short,” Branson said, “it’s time to bring this matter to a close.”

When the dust settled, four board members—Doug McAtee and Cassandra Liberty had previously recused themselves as relatives of Scott Liberty—discussed whether the board has the power to reconsider and, if so, whether it is warranted in this instance. Vice-chair Erik Hargreaves and member Dan Ellingson leaned against. While it hadn’t been easy, said Hargreaves, he was comfortable with the board’s previous decision. Ellingson agreed and added, “Opening the whole thing up again would not be a good precedent.”

Member Ben Tettlebaum and chair Don Libby saw it as a close question and leaned toward reconsideration. Libby noted that he had disagreed with the board’s decision last time. Tettlebaum, who had voted for the prior decision, wanted reconsideration in order to clarify the record.

A formal motion to reconsider followed, with Tettlebaum and Don Libby voting yes, and Hargreaves and Ellingson voting no. As a 2-2 tie, the motion failed.

An appeal by the abutters is expected to follow. Their successful court appeal of the previous planning board decision resulted in the August 17 planning board hearing and the use decision at issue in the September 7 meeting.

After the parties left the Meetinghouse, board members discussed items the town may want to clarify in the future: procedures for use determinations and appeals, refining the ‘uses similar to permitted uses’ language in the ordinance, perhaps explicit provisions regarding reconsideration. While it’s likely little consolation to the parties, for whom the dispute over the ordinance and Penney Road project continues, the controversy is likely to result in significant, useful changes to town policies and procedures.

To view video of the September 7 Planning Board meeting, click here.