|The Fear of Smell: Pungent Pot Plants Worry Williamstowners|
|By Stephen Dravis, iBerkshires Staff|
06:38AM / Sunday, March 24, 2019
An overflow crowd on Thursday filled the Selectment's meeting room to oppose plans for a pot plantation on Green River Road.
WILLIAMSTOWN, Mass. — More than two years after town voters overwhelmingly supported legalizing recreational marijuana, some residents are feeling the unintended consequences of Question 4.
"As a state, we wanted to decriminalize marijuana, but we created a monster," Blair Road resident Jamie Barstow told the Zoning Board of Appeals on Thursday evening. "And we're the canaries in the coal mine on Blair Road."
Barstow was part of an overflow crowd at Town Hall as the ZBA heard a petition from Massflora, which wants to develop a cannabis plantation on a 20-acre Blair Road parcel.
The proposal already has received the approval of one town body, the Conservation Commission, whose decision is being appealed by an abutter.
The Zoning Board is being asked to grant a special permit under a bylaw provision passed by a wide margin by town meeting in May 2017, shortly after 61 percent of the town voted in favor of Question 4, which passed by a margin of 53.6 percent to 46.4 percent statewide.
On Thursday, the panel voted unanimously to continue the hearing
on Massflora's request to its April meeting after taking more than two hours of testimony — most of it from opponents to the plan.
After a 45-minute presentation and Q&A between the board and the applicant, represented by Williamstown attorney Don Dubendorf, ZBA Chairman Andrew Hoar opened the floor to public comment, touching off about 1 1/2 hours of discussion that saw nine different residents address the board from the floor — some repeating arguments they previously had made in written submittals to the body.
Much of the debate centered around the anecdotal evidence from other states about the negative impact of smell from outdoor pot farms.
"I'm hearing the plants will be outside from June until the first of October," Jane Peth of Green River Road told the board. "If you're at all familiar with Williamstown, you know that is basically our summer.
"It's going to impact our lives, and it is a nuisance."
Without citing it specifically, the objectors — mostly homeowners who live near the proposed site — alluded to Section 70-8.3(c) of the town code, which defines how the ZBA should exercise its powers, including the power to grant a special permit.
The paragraph reads in part, " … [the board] shall give due consideration to promoting public health, safety, convenience and general welfare of the Town, and conserving property values, and that it shall permit no building or use injurious, noxious, offensive or detrimental to a neighborhood …"
A 5-acre field of cannabis plants that can grow as high as 8 feet is both offensive and detrimental to the neighborhood, numerous abutters told the board.
Dubendorf indicated that his client is open to conditions from the board that require Massflora to plant "masking" plants whose scent could counteract the odor from the pot plants. A grower for Massflora, a division of Colorado-based Euflora Cannabis Dispensaries, told the board that plants like basil, calendula, marjoram and lavender have been effective at masking smells from marijuana fields in California.
In its application
for a special permit, Massflora notes that the smells from cannabis plants are strongest for a four- to five-week period and argues, "The odor produced by the growing crop is certainly consistent with other agricultural operations in the area, where growing plants may not create odor but the fertilizing process with manure in the spring and fall certainly is noticeable."
Hoar appeared sympathetic to that case … to a point.
"When I grew up, I lived across the street from a dairy farm, and I lived near the raising of pigs," Hoar said. "I endured many an agricultural smell. … There are smells associated with agriculture.
"But I have to admit I've never smelled a 5-acre field of maturing marijuana plants."
One issue the board may have to grapple with is whether marijuana production is agriculture.
Williamstown attorney Stanley Parese presented the ZBA with a four-page memo
that, in part, argues that pot production is not an agricultural venture under Massachusetts law or the Williamstown zoning bylaw.
"The uses described in the project narrative fit squarely within the [Section] 70-9.2 definition of 'Marijuana Production Facility,' " Parese wrote, referring to the local code. "The town of Williamstown has classified 'Marijuana Production Facility' only under the 'Business Uses' category of the Use Regulation Schedule, [Section] 70-3.3(2). 'Agriculture' is a separately listed use, under a separate section of the Schedule, [Section] 70-3.3(5) (Extensive Uses). A 'Marijuana Production Facility' is a nonagricultural use."
The town's Agriculture Commission has not taken a position on the Massflora application but has discussed it, Chairwoman Sarah Gardner told iBerkshires.com last week. Gardner said she expects the commission may take up the issue again in the future.
Parese appeared before the board on behalf of Herbert Allen Jr., a 1962 graduate of Williams College and investment banker reported by Forbes.com as having a net worth of $2 billion. Allen's company, HAA Corp., owns 10 Williamstown parcels worth just more than $4 million; most of that (about $3.75 million) is on Green River Road.
In a separate action, Allen has filed an appeal against the Conservation Commission; Parese is not representing Allen in that case.
Parese on Thursday reminded the ZBA that pot production is specifically listed in the 2017 zoning bylaw as an activity allowed by special permit, not by right, and therefore is subject to the board's scrutiny.
And he specifically took issue with one argument made by Dubendorf — like Parese, an attorney very familiar with and to town boards that deal with land use.
Dubendorf argued that the town's zoning bylaw was enabled by the commonwealth's cannabis law, which allowed a certain amount of local regulation. But unless the town votes some sort of moratorium on pot-related businesses — a step considered but discarded by the town back in 2017 — that local regulation cannot be so onerous that it makes the activity impossible.
"You can pass bylaws … with one limitation," Dubendorf said. "The limitation is ... if you have the uses in your town, you can regulate the uses, but you can't do it in a way that makes it unreasonably impractical."
Dubendorf argued that rejecting the special permit application based on the visual impact — Parese's memo describes a proposed security fence as "startlingly incongruent with the neighborhood" — would be tantamount to an "unreasonably impractical" restriction.
"There is no way to produce the permitted cultivation of marijuana in Massachusetts without providing security," Dubendorf said. "It is the nature of this use that it will have rigid security.
"To deny on the basis of security provisions is to deny the use."
Parese countered that state law does not demand that the Williamstown give up its land-use regulation rights.
"The statute allows the town to prevent a public nuisance," Parese said. "There's nothing in Mass General Law that says we're bound to accept a public nuisance because it's marijuana."
Paresee indicated that Williamstown may have parcels where a marijuana farm like the one Massflora seeks to build would be more appropriate, where there are not as many neighbors in close proximity.
"There are RR2 [Rural Residence 2] and RR3 parcels in this town that are hundreds of acres," Parese said, contrasting with the 20-acre parcel on Blair Road. "The issue here, and the point I want to make clear is just because it's RR2 doesn't mean it's by right."
While Dubendorf and Parese argued the law, the residents' testimony focused on the real world impacts of the proposed farm.
Peter Dolan of Green River Road told the board that as a former member of the ZBA himself, he reviewed the bylaw and focused on the "detrimental" impact clause.
"I argue this would be disastrous to the neighborhood," Dolan said. "I argue that neighboring properties will be affected by noise, odor and visual pollution.
"The visual picture [the applicant] presents is more like a minimum security correctional facility."
Dolan gave the board a petition signed by more than 100 Williamstown residents opposing the granting of a special permit to Massflora.
Several of Thursday's speakers, including Parese, focused on the 8-foot security fence, which, by law, needs to be opaque and topped with barbed wire.
Dubendorf said that when first installed, the chain-link fence would be woven with material to provide opacity but said the applicant was amenable to a condition that vegetative screening be planted to achieve that end eventually.
One of the requests the board made to the applicant at the end of Thursday's meeting was that Massflora come to April's continuation of the public hearing with more detailed drawings of how the planned facility will look to abutters.
While the fence was described as potential eyesore and blight on the neighborhood, it also was described as being inadequate to deter crime that residents predicted will come with the cannabis business.
No amount of fencing or the state-mandated infrared cameras will stop the criminal element, the board was told.
Andrew Skinner of Cluett Drive read the board passages from a Rolling Stone article about an attack on a California pot farm.
"Several men in tactical gear, posing as authorities and armed with rifles, had ambushed the property, Chaplin tells Rolling Stone," the January 2018 store reads. "The trimmer told him that the robbers pointed an AR-15 at one of the trimmers and asked him to get down on the ground."
"It doesn't matter that there is security," Rob Ross of Blair Road told the Zoning Board. "What matters is that these people are idiots, and they want money. It's a cash crop.
"We would become a target of this cash crop crime. We chose to live in Williamstown … to feel safe in our daily lives."
Safety also came up as a concern regarding traffic.
"The application states that traffic won't increase by more than 10 percent," Carol Dolan said to the board. "I ask, how is that known? I ask that a traffic analysis by done by the town or the state. When vehicles of any kind exit Blair Road onto Green River Road, they do so at a very dangerous intersection.
"Picture a 10 percent or more increase in traffic at this dangerous intersection. Will a traffic light be needed there?"
Dubendorf promised the board to come back with more concrete numbers to support Massflora's claim on traffic when the hearing continues.
He also said he will talk to the town about how to arrange some experience that will give the ZBA members a sense of what Hoar alluded to as the great unknown in the room on Thursday night: just what a 5-acre cannabis plantation might smell like.
Odor pollution was the number one complaint raised by residents at the hearing — so much that Hoar at one point told the room that the ZBA members "got it," and, given the late hour, asked the crowd to refrain from any more testimony centered on the scent of growing cannabis.
"The smell can affect people in so many ways," said Dr. Fernando Ponce, a resident of Green River Road, who referred to reports of allergic reactions and asthma attacks related to proximity to growing cannabis. "If I had known I'd live next to a facility like this, I wouldn't have moved here."
Robert Behr of Blair Road focused on a newspaper article he submitted from the The Business Times, a Singapore-based English-language publication. The story, under the headline, " 'Dead Skunk' Stench from Marijuana Farms Outrages Californians,' " focuses on a resident of Carpinteria, Calif., who lives a half mile from a pot farm who calls the problem "just brutal."
"I submit to the board a map, with a circle not even three-tenths of a mile, showing all the homes that would be affected," Behr said. "There are at least 36 homes homes within a half-mile of the 5-acre plot planned for marijuana.
"Within one mile, you'll see even more homes as well as Pine Cobble School."
Behr was one of several residents who expressed fears that property values would drop in the neighborhood near the proposed farm if it comes to fruition.
"These homes are our lifetime investments," Behr said. "We cannot afford to have their value depreciate.
"A marijuana farm would indeed be detrimental to the neighborhood and a public nuisance."
And declining property values could offset revenue the town would receive from the proposed farm, Zirka Filipczak told the ZBA.
"In Oregon and Colorado, homeowners have asked for a tax abatement," Filipczak said. "They've been granted, with a 10 percent loss in taxes."
Memorandum Submitted to ZBA re: MassFlora Special Permit by iBerkshires.com on Scribd