To: — Williamstown Zoning Board of Appeals (ZBA) From: Stanley E. Parese, Parese & Sabin, LLP Re: Massflora, LLC Application for Special Permit / Development Plan Review Marijuana Cultivation / Production / New 7,000 sf building (Project) 295 Blair Road, Williamstown Date: March 21, 2019 Introduction, This Memorandum is submitted on behalf of abutting property owners Herbert A. Allen and HAA Corporation. Mr. Allen and HAA Corporation oppose the application for special permit. Opposition is based on the following reasons, among others. 1, The Project is explicitly classified a business use under the Williamstown Zoning By- Law Use Regulation Schedule, § 70-3.3(2), not an agricultural use under § 70-3.3(5).. 2. The Project does not comply with § 70-5.3.E (odors) and therefor, as a matter of law, the application for special permit must be denied. 3. The visual consequences of the Project will cause extraordinary negative impacts. The Project does not meet the criteria of § 70-8.D(1)(e). 4. The applicant's submission does not provide sufficient information for the ZBA to determine compliance with noise standards (§ 70-5.4.E) and traffie impacts (§ 70- 8.D(4)(a) and (b)). Also, the ZBA should assess the adverse effects for the vicinity (§ 70- 8.D) of the security requirements of the Project. 1. Business — Not Agriculture, Mass. General Laws chapter 40A § 3, provides certain zoning exmptions for “agriculture”, Section 3 was amended in 2016 explicitly to exclude the cultivation of marijuana from the meaning of the term “agriculture.” Accordingly, marijuana cultivation does not enjoy the favored zoning status of agriculture. The uses described in the Project narrative fit squarely within the § 70-9.2 definition of “Marijuana Production Facility”. The town of Williamstown has classified “Marijuana production facility” only under the “Business Uses” category of the Use Regulation Schedule, § 70-3.3(2). “Agriculture” is a separately listed use, under a separate section the Schedule, § 70- 3.3(5) (“Extensive Uses”). A “Marijuana Production Facility” is a nonagricultural use2. Non-Compliance with Odor Requirements is Certain — the Application Must be Denied. § 70-8.4.C (3) “Special Permits” / “Procedures and Requirements” provides, in relevant part (emphasis added): “The special permit granting authority shall review the special permit and development plan at the same hearing and determine compliance with the special permit criteria and development standards. Any special permit granted by the SPGA under this section shall include a finding that the proposed development plan complies with the applicable requirements of Article V, Development Standards...” § 70-5.3, in tum, provides, in relevant part (emphasis added): “Odors. No nonagricultural use shall cause the emission of odors detectable...more than 100 feet beyond the boundary of the premises for receptors [located anywhere other than in a Limited Industrial District ‘The Project narrative concedes — with certainty - that the outdoor cultivation will result in off- site odors. It states (at page 4, emphasis added), “The odor produced by the growing crop is certainly consistent with other agricultural operations in the area, where growing plants may not create odors but the fertilizing process with manure in the spring and fall certainly is noticeable” ‘The reference to “other agricultural operations” is a non-sequitur. Marijuana cultivation is not, “agriculture” under the Williamstown Zoning By-Law. The self-admitted “certain” failure to confirm to the requirements § 70-5.3.E requires that the application be denied. ‘The question of odors escaping from the 7,000 sq’ indoor facility is arguably moot because of the certain non-compliance resulting from the outdoor cultivation. Should the ZBA choose to consider the indoor facility, it is noteworthy that the Project narrative fails to provide any ‘meaningful analysis of the extent of odors associated with the indoor processing or how the odors will be controlled to meet the required standard. The narrative speaks to the issue with only a single sentence, on page 1, saying simply that harvested plants will be brought indoors “where air will be filtered through a HEPA system as well as charcoal filters”. § 70-5.1.A(1) provides that applicants “may be required to provide evidence of compliance whether by way of example of similar facilities or by engineering analysis.” The ZBA should require much more analysis and information from the applicant on this question, and that analysis and information should be made available to the public for meaningful review of it. 3. Visual Consequences — Security Fence. ‘The applicant's proposed security fence is startlingly incongruent with the neighborhood. It will also be readily visible from a public way, Green River Road, as well as the residential properties across Green River Road from the Project site and to the south of the Project site.The only elevation depiction of the security fence provided by the applicant is a two-dimensional drawing (“Typical Fence / Gate Detail”) shown on sheet C4 of the Project plans. The drawing: + fails to provide an overall height dimension to the top of the barbed wire (although by using the scale it appears to be just under 12"); + fails to indicate that the fence is required by the regulations of the Cannabis Control ‘Commission regulations to be opague (935 CMR 500.120(4) requires that “All phases of the cultivation... of marijuana...shall take place in a designated area that is not visible from a public place without the use of binoculars, aircraft or other optical aids); and + fails to give any way of visualizing what 700” (along the Green River Road side of the site) and 650” (along the southerly side of the site) of 8” tall, opaque, double-rowed fencing, topped by 3 % to 4” of barbed wire will look like from the public way or surrounding properties. § 70-8.4.D(1)(e) provides that “Adjoining premises and the general neighborhood should not be negatively affected by impacts, including those cited below.” Section D(3) (“Visual Consequences”) (a), in turn, provides, “Views from pubic ways and developed properties should be considerately treated in the sight arrangement...” Itis hard to exaggerate the negative visual consequences of 1,350 linear feet of 8° tall (i. over 10,000 sq’ of) blank opacity, topped along its entire length by 37-4” of barbed wire. There is nothing remotely like that in the neighborhood, the town, or all of northern Berkshire County. 4, Need to Demonstrate Compliance, Noise / Traffic; Need to Consider Adverse Effects on the Vicinity of High Security Facility. a. Noise. The Project narrative, at page 6, says the development “does not include the installation of any noise generating equipment that will exceed the noise standards. The Applicant will comply with the noise regulations set forth in Bylaw Section § 70-5.4.”, but provides no further detail. The processing of marijuana — particularly the trimming ~ can only be ‘completed by a labor-intensive hand cutting process, or by machinery. The narrative provides no detail on the question. The 7,000 sq’ processing building is described (at page 9 of the narrative) as“a modem agricultural building, steel framed and sided”. The ZBA should obtain more information regarding what, if any, machinery will be used in the building, the noise level of such machinery, and the acoustic properties of the building, b. Traffic. The January 25, 2019 scoping letter ftom the Williamstown Community Development Department (bottom of third page, emphasis added) called for the applicant, in addressing the requirements of § 70-8.4.D(4) “Access”, to “Please provide information on the traffic that will be generated by the facility”. Section D(4)(a) provides (emphasis added), “Access to the location should increase existing traffic (average daily, unless the Board of Appeals specifies otherwise) by no more than 10% at any point, taking into consideration any special access provisions committed (ride sharing, etc.)”