It’s Not That Simple: Pot money, zoning, town property

Our intent with this column and the radio broadcast is to describe the issues and how they do or do not get solved so that we, all voters and taxpayers, can be part of the process. So please, keep the comments coming.

If the solutions were easy, there wouldn’t be problems.

This column is a companion to the WSBS-AM radio show, “It’s Not That Simple.”

Listen to the podcast here. We look at issues facing Great Barrington and explore the question, “why don’t they just fix it?”  We discuss the complexities, the competing interests, the less obvious costs or consequences, and the missing information that explains why It’s Not That Simple.

We do our best to steer clear of opinion and to just point out the issues that make the problems more complex than they might appear. Although we both serve on elected town boards, we are not speaking for those boards or for the town in any capacity. We are only representing ourselves on the radio show and in this column. 

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This week we continued to address questions and comments left on our Facebook page, our email (NotThatSimple528@gmail.com), and comments posted here on the Berkshire Edge, published every other week after our Friday 9:05 a.m. broadcast. We began where we left off on our last program, by letting our listeners and readers know that we want to hear comments and suggestions about how the town can better serve all of us.

When we say It’s Not That Simple, we aren’t telling you that you are wrong. Suggestions made by citizens are usually good ideas. However, when we look at “the complexities, the competing interests, the less obvious costs or consequences, and the missing information,” we have found that the answer is usually, “Good idea, the town is already doing that,” or “Good idea, unfortunately that isn’t possible because it’s illegal/technically impossible/too expensive, etc.”

As voters and taxpayers, it isn’t our job to know all of these complexities, competing interests, less obvious costs or consequences, and the missing information. That’s why we elect boards, appoint committees, and hire staff. We delegate the research and deliberation to people willing and able to spend more time. The people working on these issues, whether paid staff or volunteer board members, aren’t smarter than the rest of us, but they often have more information.

Our intent with this column and the radio broadcast is to describe the issues and how they do or do not get solved so that we, all voters and taxpayers, can be part of the process. So please, keep the comments coming.

The first issue we addressed on this week’s program was marijuana and the tax revenue that retail stores will generate for the town.

Theory Wellness on the Stockbridge Road in Great Barrington, the town’s first authorized retailer of marijuana products.

What is happening with all the marijuana money? With all this money, I hope my taxes will go down this year.

Whether or not taxes go down (or not up as much) because of the marijuana money depends on how the voters decide to spend those funds at the Annual Town Meeting. But before we talk about where the money will go, let’s look at where it comes from.

The Commonwealth imposes a 20 percent tax on retail sales of marijuana products, similar to the 6.25 percent sales tax we pay on most other items we purchase. The Department of Revenue (DOR) keeps 17 percent for the state and sends 3 percent of all sales that occur in Great Barrington back to the town on a quarterly basis. Those funds are unrestricted and can be spent any way the voters at Town Meeting decide.

There is another source of marijuana money called the Community Impact Fee which must be spent to mitigate negative impacts arising from the legal sale of marijuana products. This fee is also 3 percent of sales. Although this money is spent the same way all money is spent, by a vote at Town Meeting, the town is legally and contractually obligated to demonstrate that these funds are addressing actual marijuana-related costs incurred by the town.

What are the negative impacts of legal marijuana and what are we allowed to spend that money on? No one really knows since it hasn’t been defined, either by the state or by the town. Can these funds be used to fix a bridge? Probably not unless the bridge falls down because of an overweight truck carrying marijuana! Can it be used to train the police to identify a driver impaired by marijuana use? Yes. But what about the more nuanced impacts? For example, every day busloads of children pass Theory Wellness and see the line of smiling customers. Can we use the money to pay for drug education to counter that? One mother called to say that her teenage son, too young to walk into a store and buy marijuana, looked at their website to gather evidence that marijuana use has health benefits and then said, “See, Mom, it’s good for you.”

So how much will the town ultimately collect, where is it and when will it become available?  It’s Not That Simple. In fact, it’s quite complex.

How Much Is It?

Figuring out the amounts that will be generated by total sales of marijuana products is simple. The one cannabis establishment in town has reported sales for the first three quarters of the year totaling $30 million. Six percent of that is $1.8 million. If the fourth quarter is the same as the average of the first three, that means the town will have $2.4 million in marijuana revenue from one source in one calendar year. (For perspective, not counting the school budget, the town’s operating budget is a little less than $12 million this year).

Where Is It and When Can We Spend It?

The unrestricted 3 percent comes to us quarterly from DOR. The other 3 percent (the community impact fee) comes directly from the marijuana enterprise and is due 20 days after the quarter ends.  Here’s where it gets complicated, so fasten your seatbelts! Maybe bullet points will help.

  • DOR recommended that towns and cities not budget to spend that money until they have it. Not spending money you don’t have is generally sound advice, which GB followed, so at the end of the last fiscal year (June 30, 2019) the town had a pile of unspent money.
  • The town then said to the state, “Look at this money we didn’t spend. (It’s called free cash). Can we spend it?” The state said the town could.
  • That conversation happened after July 1, the new fiscal year, but the new fiscal year’s budget was approved at last May’s Town Meeting so those funds cannot be spent in this fiscal year since they weren’t approved by Town Meeting. We have to wait until next year to spend that money.
  • The budget process for the next fiscal year, which the town will vote on next May, and begin to spend in July, is about to begin. At that time the town can budget to spend the money that came in before June 30, 2019 and can begin spending it on July 1, 2020.

Woo Hoo! $2,400,000 in one year!!!

Not so fast.  More bullets to come.

  • Only monies in hand as of June 30, 2019 can be budgeted. (See the first bullet point, above.)
  • The first quarter (January, February, March) payment was due April 20. (Yes, the first marijuana check was delivered on 4/20.)The second quarter (April, May, June) was due July 20, after the end of the fiscal year.
  • The money available to us for the next fiscal year’s budget (which the town staff is preparing now and we will all vote on in May and start spending in July) is only from the first quarter!
  • The following year is when the rest becomes available.

So, how will these funds be spent? Sorry to disappoint those of you who were able to follow this far, but the answer is, “we don’t know yet.” Like any other money that comes in, the Town Manager works with department heads to decide how much money is needed to pay for services, then prepares a budget and takes it to the Finance Committee and the Selectboard, and ultimately to Town Meeting. That process has just begun. Stay tuned, or better yet, attend budget meetings in February and March, and find out.

But my question was, will the money reduce my taxes?

The mitigation money is not likely to reduce our taxes much since it will most likely be spent on activities we are not already doing. The good news is that marijuana related activities in town won’t increase our taxes since, unlike any other legal business in town, the business owners are paying the cost of addressing the problems they create.

Whether or not the unrestricted money is put to reducing taxes, spent on new services or programs, or saved in a stabilization fund for a future need, is all up to the voters at Town Meeting.

Our next comment concerns zoning issues and in particular the role of the Planning Board and Selectboard regarding aesthetic issues.

A rendering of Powerhouse Square whose tenant is the Berkshire Co-op.

Why did you allow the ugly coop building? Shouldn’t zoning or the Planning Board have done something?

Zoning usually addresses land use not building typology, style, or character. When zoning does attempt to create conditions having to do with aesthetics, it is through setbacks, height restrictions, and bulk restrictions. In other words, the amount of development that can occur on a given lot. Seems simple, right? Well, only until a project pops up next to your house that blocks your view of East Mountain, or someone builds a building downtown that you find ugly.

Zoning bylaws are developed by the Planning Board but do not become law until the town has its say at Annual Town Meeting (ATM) with a 2/3 supermajority vote. So, the two-part answer to your question is that, in Great Barrington, town committees don’t have the right to say what is and isn’t ugly, and people can build what the majority of voters say they can build.

Having zoning is a choice, not a requirement. Most societies around the world don’t have zoning. Even in the U.S., cities as large as Houston don’t have zoning.

Zoning immediately creates a challenge between the rights of neighbors to the enjoyment of their properties. If I’d like a tennis court in my backyard, what gives my neighbor the right to complain or appeal a building permit just because they do not want to hear the sound of balls being hit and squeaking sneakers on the court. Zoning is supposed to protect both property owners in this case, but as human beings we should know that one man’s swimming pool is another’s mosquito breeding ground.

In theory, zoning ordinances are put in place to promote the development of compatible land use patterns and avoid uses such as transfer stations next to residential neighborhoods. But the letter-writer is correct, for most of human history we existed without it. The great cities of Europe, Asia and South America were created without the use of zoning. So why have it?

The zoning map for the village of Housatonic.

In the United States we are freedom-loving people used to getting our way, especially with our own land! Let’s look at Houston as an example the possibilities of a “zoning-less” community? A good look at Houston certainly tells a cautionary tale.

On the one hand, Houston has been allowed massive low-density development, spreading into eight counties and onto lands that Great Barringtonians would regard as watersheds, habitats and water quality conservation areas. Unchecked development led to some of the great destruction and loss due to hurricane Harvey in 2017. On the other hand, that unregulated development has led to Houston being one of the most affordable cities in the country. So, which is right?

Our commenter went on to say that zoning should be concerned with health and safety alone.

“Zoning creates an otherwise nonexistent right that always goes beyond health and safety into the realms of aesthetics and taste…In those situations, the “right” created for the neighbors is always balanced by a detriment to the property owner.”

That’s true. Do I have a right to look out my window and see the sky if it takes away your right to build a 10-story building in a neighborhood that is otherwise full of victorian homes? One of us is going to lose rights. Some societies opt to decide that by letting property owners do whatever they want, others legislate compromise. We don’t live alone. We choose to live in communities which means we give up individual rights for the rights of the community. In Massachusetts, it takes a 2/3 supermajority of voters to enact zoning bylaws. That means far more than most of us must agree before we limit what people can and can’t do on their property. But we will never all agree.

Another weakness of zoning, and perhaps what our listener is really alluding to is the appeals process and the financial harm that it can cause a property owner. Any law, whether it is zoning or otherwise, is appealable. Even a by-right use can be appealed for the purpose of delay, and that can be very expensive for a property owner.

We plan on picking up on this topic on a future episode so please stay tuned.

The last comment we want to touch on concerns the town as Property Manager.

Great Barrington should not be in the real estate business. We aren’t good landlords.

On previous episodes we have covered properties such as Reid Cleaners and the Housatonic School. Both of these buildings are town-owned, unused, and costing the taxpayers money, leaving the impression that GB should not be in the real estate business. However, these two properties pose a challenge because they both have historical value yet are extremely undesirable to developers, primarily because of the costs associated with remediation which haunt both buildings. If either building were attractive to private owners, the town wouldn’t own them. In the case of the Housatonic school, no one has been willing to pay even one dollar for it.

GB actually has an impressive record of managing properties such as the Ramsdell Library, Mason Library, Town Hall, the courthouse, two fire stations, the police station and more. In the case of the courthouse, the town is a landlord for the state.

The Castle Street Firehouse that now only houses two town departments. The fire department now occupies its new headquarters on State Road.

The town also has experience selling properties, although not always effectively. As one reader reminds us:

I am wondering if you would please do a piece on the history of the [old] GB Firehouse, how the buyer was paid to buy it, and then how the town was paying rent to house offices in it while it crumbled and moldered, and where the situation is and what a blighted shambles it is now. What happened to the culinary school? Why isn’t anyone being held to their promises to the town? 

With the Firehouse, GB faced two options. Demolish a heritage building at a cost of $1 million, or negotiate a deal to bring the property back to life at substantially less cost. A deal was eventually cut, with the town providing $230,000 for remediation in exchange for a $50,000 purchase price essentially paying $180,000 to get the building off its books. The buyer did indeed promise to redevelop the property with a culinary school and has since invested minimally in its heating system, but no further development has been done nor is anything being proposed in the near future.

As our reader alludes, the town should be holding the buyer to his promises. It is unfortunate that when the deal was struck there were no contingencies included to require development as promised and this slight should serve as a learning moment for the town as it moves forward with the Housatonic School and Reid Cleaners. Town administrators did right by allowing, partnering, and incentivizing the private sector to restore a heritage property, but it would have served the building and all us well to include guarantees in the fine print.

That’s all we had time to cover on our program this week. Please tune in to future episodes for more of your comments. We are on the air every other Friday at 9:05 AM and publish this column the Monday after our Friday show. We encourage you to click here to listen to the WSBS podcast of It’s Not That Simple for more details than we are able to cover in print.

Is there’s an issue you’d like to discuss on the show? Have comments about this or previous episodes? We invite your contribution of topics and concerns that may be of interest and that might seem simple to address. Maybe there IS an obvious solution we haven’t thought of, or maybe It’s Not That Simple.

Email your suggestions or questions to NotThatSimple528@gmail.com, or find us at Facebook.

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Next Show: Jan. 3, at 9:05 on WSBS, 860AM, 94.1FM, Your Hometown Station