News Analysis: The Great Barrington marijuana wars

Great Barrington — An ongoing power struggle between the planning board and the selectboard has threatened to derail a new proposed zoning bylaw that would govern the cultivation of marijuana in the town. Moreover, it has laid bare a rift between the two boards’ philosophies on development — and perhaps even between factions in the town itself.

At its meeting Thursday night (April 12), the planning board had a frank and often tense discussion with outgoing selectboard Chairman Sean Stanton over which board should be the special permit-granting authority for marijuana establishments, most notably cultivation facilities.

See video below of the discussion:

In some zones, including industrial and certain types of residential, the siting of cannabis production facilities would be done by-right, meaning no special permit would be needed, though there would be minimum lot-size requirements.

But if a special permit is required, the authority granting it would be the same body that drafted the bylaw — the planning board. This has not set well with the selectboard. Stanton has said the proposed bylaw “lacks specificity” and is actually less stringent than the state regulations. If you’re looking for a cure for insomnia, click here to read the final regulations filed by state cannabis regulators with the Secretary of the Commonwealth’s office.

As was reported last week, planning board Chair Brandee Nelson said, “Quite frankly, my dream is that the [Housatonic] mills will get reused as growing facilities and come back on our tax rolls.” To which Selectman Dan Bailly, a resident of Housatonic where the mills sit mostly idle, shot back, “That’s your dream, my nightmare.”

Bailly’s comment exposed a cultural rift between those who, while they may not exactly love the idea of recreational marijuana, nonetheless think the town should move forward, and those who predict unforeseen consequences and are convinced that weed presents the wrong image for Great Barrington and the Housatonic section of town in particular.

Great Barrington Planning Board Chairperson Brandee Nelson makes a point to fellow board members Malcolm Fick and Jonathan Hankin at Thursday’s meeting. Photo: Terry Cowgill

Now the two boards are at odds over the proposed regulations, upon which voters will weigh in at the annual town meeting Monday, May 7. Two planning board members, Jonathan Hankin and Malcolm Fick, view the selectmen’s desire to be the SPGA as a power grab.

“I’ve been on this board for 21 years,” said Hankin. “You’re basically being bullied by the selectboard and, if you cave in now, just forget it because you’ve essentially assigned the responsibility for every special permit for the foreseeable future to the selectboard.”

“We have independent boards,” added Fick. “It’s really a question of checks and balances and a division of labor in the town. The selectboard has no authority over the planning board. The planning board has no authority over the selectboard.”

The old Shea’s Pine Tree Inn in Sheffield, shortly before demolition. The site is slated to house a marijuana growing, manufacturing and retail facility. Image courtesy Google Maps

The cultivation, sale and use of recreational cannabis-related products was legalized in Massachusetts through a 2016 ballot initiative. Sales are expected to begin in July at fully licensed and completed retail outlets. Implementation of the new law was left to the hastily created state Cannabis Control Commission. One such facility is already under construction in Sheffield.

Hankin pointed to other Berkshire County towns of similar size, such as Williamstown and Lenox, where the selectboards play no role in granting special permits.

“I know, but we don’t live in Williamstown,” Stanton snapped back. “If you want to move there, you’re welcome to.”

At one point, the unflappable town planner Chris Rembold tried to intercede. “I don’t think this discussion is helping,” he said with his trademark calmness.

But the discussion continued nonetheless. Planning board members Jeremy Higa and Pedro Pachano, along with Nelson, seemed less worried than their fellow board members about giving up the SPGA status, arguing instead that it was more important to pass the bylaw because, if it fails, there will be little to guide the town other than the state regulations, which will have to be enforced by building inspector and zoning enforcement officer Edwin May.

Alternate planning board member Pedro Pachano (left) wonders why it is so important for the planning board to be the special permit-granting authority. At right are Jeremy Higa, Malcolm Fick and Jonathan Hankin. Photo: Terry Cowgill

Fick was happy to speak more broadly and philosophically. “Our principle has always been treading lightly on property rights,” he explained. “I don’t think we should interfere with people’s property rights unless there is a strong public interest.”

“I think the idea that property owners should have the right to do whatever they want … we don’t live in the Wild West,” Stanton said.

Stanton also said town counsel, without giving him a formal legal opinion, had advised him “that the idea that [marijuana cultivation] would be an industrial use was pretty far-fetched.” Stanton suggested the selectboard, or an individual on the board, might want to offer an amendment to the proposed bylaw at the annual town meeting designating the selectboard as the SPGA.

Both Fick and Hankin questioned that tactic, with Hankin adding that he would rather see the bylaw fail than cede the SPGA to the selectmen.

“I think that’s foolish. I’m just going to come right out and say it,” Nelson said. “Why would you want to pass over that opportunity for a power play?”

“We didn’t create this crisis. I mean, we have the legislative right,” Fick said. “We have the responsibility of coming up with zoning bylaws.”

Mill buildings flank the river and the remains of a bridge abutment is a testament to a time when there was thriving commerce along the river. Photo: David Scribner

Fick said — and Nelson agreed with him on this — that the planning board has compromised, when the selectboard asked the board to require a special permit for marijuana facilities structures in the R2 and R4 zones totaling more than 10,000 square feet.

As for whether he would support the amendment to designate the selectboard as SPGA, Fick said: “When I hear any movement for compromise [from the selectboard] then I’ll consider it. The only compromise so far is that we have moved toward the selectboard’s position.”

Stanton repeated a comment he made last week that the cannabis facilities, if proposed, are not merely land-use issues typically relegated to the planning board. Rather, he said, there are also political, economic development and public safety issues that make the subject better suited to the selectboard.

In the end, the planning board declined to take any action to support the amendment proposed by Stanton, so it looks as if there could be a cliffhanger at the annual town meeting.

But the broader question remains as to what kind of town Great Barrington wants to be. The Edge story last week about the possibility of cannabis production facilities in Housatonic sparked candid and often emotional conversation both on the comment thread of the story and on social media. Click here to see The Edge discussion, which included a comment by Nelson herself on the planning board’s record of support for Housatonic and its “tremendous potential.”

But many of comments on the story and elsewhere on social media focused on the poor image the “marijuana mills” would present for Housatonic. Others sounded the alarm about increased teen marijuana use, even if the mills were only used for cultivation and had stringent security requirements as mandated by state law.

It remains to be seen whether legalization will result in greater use among teens. Cannabis advocates point to statistics that show that teen use of marijuana has actually decreased in Colorado, where adult recreational use was legalized in 2013 and sales began the following year. However, that assertion was rated half-true by Politifact.

Still others thought cannabis would be a good fit and, while they might not be thrilled about it, at least the mills would be become productive again and generate tax revenues for the town.

An aerial image of the proposed Oasis cannabis production facility, an abandoned gravel pit at right, off Hartsville New Marlborough Road in New Marlborough. Image courtesy Oasis Campus LLC.

Others wondered how much in tax revenue retail sales and cultivation would generate for the town. Click here to see the revenue and employment estimates for an industrial-sized cannabis facility proposed in New Marlborough, where last week residents at a special town meeting voted to enact a temporary moratorium on such facilities. The moratorium will extend to the end of the year but is not retroactive and so it will not affect the proposal currently before the selectmen in that town.

One might reasonably suspect that the division on this issue is largely generational, with older residents opposed and younger residents open to change. But that does not seem to be the case here. Old and young alike are embracing change and also standing in its way.

But none of the opposition changes the fact that the ballot measure legalizing recreational marijuana passed by almost 7.5 percentage points statewide and by almost 30 points in Great Barrington. So absent an epidemic of NIMBYism, a town-wide ban seems unlikely, if not altogether impractical.

The fact that Great Barrington voted for legalizing recreational sales of weed is important because banning cannabis facilities is far more difficult for those towns. The authority to ban marijuana shops hinges on whether the town’s residents voted against the recreational marijuana ballot question in 2016.

If the majority of a town’s residents voted against the question, officials can ban the shops. If the majority of the town’s residents voted for the measure, as is the case in Great Barrington, then only the voters themselves could ban the shops, either through a town meeting or referendum.

Every town and city in Berkshire County, and all but seven in western Massachusetts, voted for the recreational cannabis law. Great Barrington, for example, voted for the measure by the overwhelming margin of 64–36 percent, considerably greater than the statewide margin of only 53–46 percent.

To be clear, there is no proposal on the table for a cannabis production facility in Housatonic; it’s merely a vision some members of the planning board have. But given the scarcity of viable proposals for the reuse of the mills, it’s not clear that there are many other alternatives.