WILLIAMSTOWN, Mass. — The Planning Board on Tuesday agreed it likely can get a cannabis production bylaw to the Select Board by March 8 for inclusion on the annual town meeting warrant, but critics cautioned that the board's current path is unlikely to produce a proposal that meeting will pass.

 

The board reviewed the most up-to-date proposal for a bylaw amendment it has been considering formally since September and, in reality, for much longer than that. The board is hoping not to repeat last year's failed attempt to implement restrictions on pot production but still allow a pathway for growers via special permit.

 

The newest iteration limits indoor cannabis production to the town's Limited Industrial Zone and outdoor grows to the Rural Residence 2 and Rural Residence 3 districts. It also incorporates the same sort of odor control incorporated in the bylaw the board sent to town meeting 2020.

 

On the outdoor side, the board's current draft requires native vegetative screening for the security fencing required by state law for cannabis production sites and restricts outdoor lighting to only that required by the Massachusetts Building Code and/or the Cannabis Control Commission.

 

The draft bylaw also requires that outdoor growers submit an "odor dispersal plan" to the Zoning Board Appeals. Said plan will need to "utilize Best Available Technology," the proposal reads, without specifying what constitutes adequate "dispersal."

 

The draft reviewed on Tuesday also dispensed with a previously discussed idea of creating a number of different setbacks based on the size of a facility's growing area. Instead, the board now is considering a simplified approach of having two levels of setbacks: one for growers with one acre or less of cannabis plant canopy and a second for growers licensed by the state to grow more than an acre of canopy.

 

All outdoor growers under the draft discussed Tuesday would need to maintain 100 feet of setback from the side and rear of their properties. Larger grows (more than an acre) would have a 200-foot setback from the front (street side) of their properties; smaller grows will have a 100-foot front setback. In all cases, growers will need to site their cannabis plants at least 500 feet from the nearest residential dwelling not owned by the grower.

 

The draft bylaw discussed on Tuesday would establish no local cap on the size of an outdoor producer. In that sense it is more permissive than the proposal the town's Agricultural Commission brought to town meeting in August, and that drew common from the floor of Tuesday's meeting.

 

"I feel like the town is much more — and I'm referencing town meeting — much closer to something to support farmers that is small in size," Stanley Parese said. "If the answer of the farming community is we need 100,000 square feet and all over RR2 and RR3 on farms or not, it feels more like a marijuana industry law."

 

Parese and later Anne Hogeland on Tuesday pointed to support at town meeting for a suggestion to cap outdoor grows at 5,000 square feet based on the argument that it would allow existing local farmers to supplement their income with some cannabis production without opening the door to large-scale commercial pot operations.

 

The CCC allows up to 100,000 square feet of production in the state in a regulatory regime that established 11 tiers based on size. Tier 1, the smallest, is up to 5,000 square feet. The middle range Tier 6 of 40,001 to 50,000 square feet (a little more than an acre) is the limit proposed by the Ag Comm's proposal to the 2020 annual town meeting.

 

Parese reminded the Planning Board that marijuana is not, by state law, an agricultural product, and the town has the ability to regulate its production, and it should in districts like RR2 and RR3 where commercial activity is extremely limited in the bylaw.

 

He also told the board that the town has the ability to restrict cannabis production to working farms and a precedent for similar restrictions.

 

"You can do it the same way you do it for weddings and small concerts," Parese said. "If I'm getting paid to host a wedding in RR2 or RR3, the only people who can do that in Williamstown are farmers."

 

Planning Board Chair Stephanie Boyd asked Parese if that meant he would not want new farmers to come to town and start a 5,000 square foot marijuana plantation.

 

"If it's a farmer, sure," Parese said. "What I'm saying is, the commercial cultivation of marijuana is not farming as a matter of law. I didn't write the law. If someone is going to have marijuana cultivation … that person [should need] to be engaged in actual farming.

 

"It's the same conceptual structure we use now. If you want to have 10 weddings a year and make money doing it, you have to be a farmer. We're doing this as a way to balance the desire to support farming."

 

The controls in the draft bylaw generated questions from Planning Board member Dante Birch, who said he would like to see more direction for the Zoning Board of Appeals, which would one day be faced with the question of whether to grant special permits under the bylaw.

 

"What I'd like to propose is a checklist that the ZBA can use to evaluate applications," Birch said.

 

When Chris Winters replied that the checklist was already in the draft in the form of conditions — like odor dispersal — that an applicant would have to meet, Birch disagreed.

 

"We need to define a vegetative buffer," he said. "At what point do we feel that would be an effective buffer of cannabis plant odors?"

 

Boyd said that draft bylaw addresses that concern by allowing the ZBA to hire experts — at the expense of the applicant — to evaluate the proposal's odor mitigation plan.

 

"Some things will be difficult to quantify," Boyd said. "That's one of the reasons why we've given them leeway to hire expertise. That expertise, I believe, will change over time. … We've given them the tool that they can hire an expert who will help advise them on whether a proposal before them meets those not-100-percent-rock-solid rules that we can't write."

 

Town Planner Andrew Groff said the third-party expert review has precedent in the town, specifically under its cell tower bylaw. The town also has hired third-party engineers to review plans for large projects like the recently completed culvert replacement project along Latham Street.

 

"This is similar to what the town of Great Barrington did with a grow proposal in Housatonic," Groff said. "Because their expert found deficiencies with it, it's currently stalled."

 

One question that came up last fall in discussions of the Ag Commission and later in a public forum sponsored by the Planning Board was resolved as, essentially, a non-issue. Boyd Tuesday confirmed that an outdoor grower can use a hoophouse or greenhouse and not fall under the town's definition of "indoor cultivation" as long as the structure in question does not use artificial light.

 

"An outdoor cultivator relies on natural light, period, full stop," Winters said, referring to language in the draft bylaw.

 

One point on which the board and critics of its current proposal appeared to agree on Tuesday: the issue of how to regulate pot production in the town needs to be resolved.

 

"At the very beginning of the [August town meeting] debate, the first motion was to refer Articles 32 and 33 back to the Planning Board," Hogeland said. "That motion was supported by the Planning Board and the Ag Commission. People know about it beforehand. And that failed, I think, pretty decisively.

 

"That signals a sense of urgency in the town. Town meeting wanted this addressed last year. And I'm sure the Planning Board doesn't want to work on this forever."

 

Boyd, not for the first time, pointed out that the question before the town is not whether to allow outdoor cultivation of cannabis but how to regulate what already is allowed under a 2017 bylaw passed in response to the successful 2016 state referendum to decriminalize the drug.

 

"There are still a lot of people in our community who don't realize that today you could have a cultivation operation," Boyd said. "I'm looking at this [proposal] as putting more safeguards on. It may not go as far as some people want, but it's more regulation than exists."