Planning Board members had argued that the intent of Article 29 was to add to protections that existed in the zoning bylaw, including the development standards that Parese recently cited as an obstacle to potential grower who applied for a special permit in 2019.

 

Hogeland, however, told the meeting that without concrete language in the cannabis bylaw, it would be a question subject to litigation down the road whether the existing bylaw on odor control still applied to marijuana growers.

 

"If we don't clarify it, we are at risk of a simple, well-founded argument that a later-passed and more narrowly focused provision — in the case of potential conflict or ambiguity — is the one that controls," Hogeland said. "While there is the [Planning Board's] intent for Article 29 to be additive, that may not be what we see down the road when aggressive attorneys make aggressive legal arguments."

 

Elisabeth Goodman, like Hogeland an attorney, asked the town counsel to give his opinion about whether the pre-existing development standards would apply without the language Hogeland proposed.

 

"Without having the zoning bylaw in front of me, I'm wary of opining," Bard said. "It's possible it's not necessary. The point made by [Hogeland] of the amendment was to remove all doubt … in the event there is any doubt. I cannot opine as to whether there is any doubt. I'm sorry."

 

Andrew Skinner, another frequent critic of the Planning Board's proposal, made his second trip to the microphone to highlight Bard's answer.

 

"If the town counsel can't answer this tonight, surely in court, we'll have lawyers arguing," Skinner said. "The Planning Board previously indicated its support for the concept [of Hogeland's amendment] because they said their bylaw is additive. Let's make it additive."

 

As for Parese's initial amendment, Bard advised the meeting that changing the bylaw amendment on the floor to rule out all outdoor cannabis production would be beyond the scope of the language on the warrant.

 

"The purpose of a warrant is to advise or warn the voters of what's coming before you," Bard said. "The concept of 'scope of the warrant' is whether an amendment is within what you were notified would come before you.

 

"Say there's a warrant article looking to appropriate $100,000 for a given purpose. Someone gets up and amends to make that $500,000. I've never seen a moderator who would allow such a motion. The ruling would be it was outside the scope. If it was an amendment to increase it to $125,000, that would be within the moderator's discretion."

 

Bard and Filson decided that an amendment to change cannabis cultivation from "allowable by special permit" to "disallowed" in all parts of town was outside the scope of what appeared on the meeting's warrant.

 

The other two amendments, which ultimately passed were, by contrast, more modest changes, the town counsel and moderator agreed.

 

After the removal of the by-right provision for "micro" grows and the addition of language referencing existing language that "No nonagricultural use shall cause the emission of odors detectable more than 200 feet beyond the boundary of the premises for receptors within a Limited Industrial District or more than 100 feet beyond the boundary of the premises for receptors elsewhere," the Planning Board's proposal picked up an unqualified endorsement from a member of the Zoning Board of Appeals.

 

"This bylaw proposal by the Planning Board would put much more power in control of the ZBA to manage and control outdoor cultivation," Keith Davis said. "I see nothing wrong with [Hogeland's] amendment. [Parese's] amendment was consistent with a message I sent to the Planning Board.

 

"I'd hope everyone would vote in favor of this proposed bylaw. If we don't, the old bylaw stays in effect, and that allows people to do plantings a lot closer than this one does."

 

The "old bylaw" was a very preliminary bylaw passed by town meeting in 2017 that only specified where marijunana could be produced without any provisions specific to the industry.

 

Stephanie Boyd, who chaired the Planning Board through two years of deliberations on a revised cannabis bylaw, told the meeting Wednesday that the proposal on the warrant struck a balance between the need to give local farmers economic opportunity and the need to protect neighbors from negative impacts of cannabis production.

 

"Vote yes if you would like to see some safeguards," Boyd said. "Vote yes if you would like to support farmers and protect farmland. Vote yes if you are concerned about the impact of climate change and want to discourage indoor growing or, at least, minimize its impact. Vote yes if you are uncomfortable growing cannabis in your town but recognize that Article 29 reduces options for growing cannabis and provides greater protection for your neighbors."

 

In the end, 82 percent of the voters in attendance joined Boyd in voting yes.

 

Afterward, she said she did not know which way the vote would go when she arrived at the meeting.

 

"There have been a lot of difficult discussions this year," Boyd said. "I knew the legal people were discussing whether they would allow those big amendments. I think if we were going to look at banning cultivation versus allowing cultivation, I don't know how to predict that. But once that was off the table, it's clear to everybody that putting the controls in place that we have is what was best for our town."