ZBA rushing Marijuana Dispensary decision prior to Town Meeting? 6:30 pm hearing tonight (Final update)

Right: While the ZBA looks to push ahead with a vote on a medical marijuana dispensary application, nearby residents have argued that their recently opened “recreation program” at a basketball court on their property prohibits it. (image from Facebook)

Last night, the Zoning Board of Appeal held a hearing on a proposed Medical Marijuana dispensary. After almost 4 hours of presentations, public comments and board discussion, the hearing was continued to tonight, (Thursday, March 24th) at 6:30 pm – 1 hour prior to tonight’s posted meeting.

The board will allow continued public input. Input they are looking for would be new, relevant arguments on rejecting the application or (more likely) conditions to consider imposing as part of granting the permit.

Learning that, after this week, the applicant wouldn’t be available until the day of Town Meeting, Chair Bartolini pushed to squeeze in the continued hearing tonight. Bartolini made it clear that the decision should be made prior to April 11th. Which happens to be the opening of Town Meeting, where three potential revisions to the Town’s Medical Marijuana zoning bylaws will be decided by voters.*

The decision to continue to tonight was made after Bartolini failed to get support for cutting off public comment to close the meeting and vote last night.

Co-Chair Thomas Bhistikul made a case for continuing the hearing. He said he wanted to hear from the “line of people” who still wanted to give input. 

Bhistikul expressed that he wasn’t sure where he personally stood, but felt that the board was headed to an approval. He followed that “it might be worth another session to explore” conditions residents would like included.

Member Andrew Dennington agreed for different reasons. He said that discussing conditions after closing the hearing would be “awkward” since they wouldn’t be able to ask the applicants how they felt about the conditions.

Board members were an agreement that they don’t want to hear irate residents continue to make the same arguments over and over again for hours. And comments should be relevant to the bylaws.

In discussing the applicant’s schedule issues, Bartolini remarked “We have to get it done before”. Interrupting, the applicant responded “Yeah, I understand”.

Town Counsel indicated that posted notice wasn’t needed for a continued hearing.

A resident argued for longer notice. She said that residents weren’t aware that there was an option to propose conditions. “You are representing us, and we are asking you for more time to put together [conditions]. We didn’t even know that was an option.”

Board members appeared not only unswayed, but incredulous about the request. She was advised that the discussion would be at tonight’s hearing. Bartolini interrupted to say that the hearing should be continued to tonight “and if there’s a major issue with the residents, maybe we continue it again”.

The meeting opened with the reading of letters in opposition to citing the dispensary. Notably, one was written by the Hoolahans, organizers of both a petition against the dispensary and the proposed bylaws revising the dispensary zoning bylaws. They claimed to have established a reason for prohibiting the siting of the 255 Turnpike Road, which is less than 500 feet from their 26 Clifford Street residence.

Their letter claimed that bylaws prohibit the dispensary from being sited that close to their “Fun!dementals” program. The weekly basketball clinic program, which they helped establish in February, will be held on their property.

A representative for the applicant apparently decimated the Hoolahans’ argument, then summed up:

The reality is that you have a single family home with a driveway with a basketball net on it. If they are in fact running a business, they are doing so illegally.

He first stated that the program, if really open, is a commercial use located in a residential zone. He alleged that they have not received, or even applied for, special permitting or gone through a Site Plan Review. And, he claimed that under state regulations, it would be considered a youth camp and require permitting from Board of Health. (Scroll down for Marnie Hoolahan’s rebuttal.)

Updated (3/24/16 1:00 pm): After viewing the applicant’s response to the “recreation program” within the buffer zone, I inserted previous four paragraphs.

Updated (3/24/16 1:14 pm): This afternoon, the ZBA posted the agenda for tonight’s meeting and emailed me to notify readers. Here is the link.

Updated (3/24/16 4:01 pm): More highlights from the meeting:

Multiple comments, including by the Co-Chair, pointed out that the zoning is by special permit instead of by right. The intent of special permits is to allow Town officials to determine if a specific application is appropriate, including the specific site. For some, the location was the main issue – proximity of children on residential streets, nearby schools, and residential property values were among reasons to reject it.

Residents also worried about crime, diversion causing public health problems, impaired driving related to any dispensary.

Responding to worries about diversion, the applicant argued that their customers sign papers dictating that they will safely store the drugs so kids can’t access. He pointed out that patients who pickup oxycontin at Walgreens and residents who buy bottles of liquor don’t sign anything.

He argued that jail penalties make it unlikely for someone to divert medical marijuana. The state is extremely liberal about recreational marijuana. In contrast, that two strict medical marijuana laws, requiring jail time, were created when the law was passed. He said you can sell 60 lbs of marijuana and not get jail time. But any patient that redirects medical cannibas will serve 6 months in jail. And any employee diverting it would be looking at a 5-year federal penalty.

Since the drug will be sold at “right about street level” it wouldn’t make sense for customers to sell it for a profit. He confirmed Bhistikul’s assumption that the cannibas has less psychoactive elements than medical cannibas, making it less attractive to “stoners”.

Though not everyone got a chance to speak, it was made clear early on that only one commenter was there to support the application, Desiree Aselbekian.

Before opening up comment to the full public, Bartolini invited comment in favor. Referring to voters, Aselbekian said that she may be the only one standing up at the hearing but knows she doesn’t stand alone.

Aselbekian reminded the public that during the bylaw process she had advocated for Route 9 access. Worried about the cash-only transactions, she wanted to make sure that facilities were in well lit, public areas, not tucked away in the industrial park zone.

She also spoke passionately in support of the people who need access to a dispensary. She explained that her grandfather, who passed away on Monday, had spent the last 6-9 months of his life in debilitating pain. One week prior, he finally agreed to make an appointment to pursue a prescription for medical cannibas.

Addressing the people worried about the facility, she asked “Who do you think is going to be ‘hanging around’? It’s patients that are in pain, patients that are debilitated, patients that have cancer and are seeking chemotherapy”.

Selectman Paul Cimino asked the applicant to update the public on their prior commitment to selectmen to try to find an alternate site. It boiled down to nothing suitable was available that meets bylaw and regulatory requirements.

Economic Development Co-Chair Julie Connelly commented in opposition to the project (as did her board through a letter). She argued that it is not the board or Town’s job to find a facility for the business. Speaking about how relatively new dispensaries are, she asked “do we really want to be the guinea pig here?”

Marnie Hoolahan and neighbor Erin Wheatley stepped up to rebut the applicant’s undercutting of their recreational program. According to Hoolahan, because the program is free and is classes are limited to 4 students, it does not qualify as a camp or a commercial enterprise requiring special permits, but does meet requirements to be considered a recreation program.

Town Counsel advised that unless the Building Commissioner accepted it as a legitimate recreational basketball court, as of last night, they effectively didn’t “exist”.

Commissioner Mark Robideux didn’t see how running a recreational program translates to a having a facility.  He didn’t believe the single net area qualified as a court. And he believed that to be considered a recreational facility it would need a special permit from the ZBA, and to meet other requirements for parking, accessibility, bathrooms, etc.

Later, Hoolahan questioned the traffic impact. She said that a Brookline facility anticipated 55 customers per day. But one study showed 26 customers within 15 minutes.

*Updated (3/24/16 4:57 pm): I’ve finally managed to work my way through the entire meeting. I didn’t hear any discussion of articles pending for the upcoming Town Meeting. But, given that the filing deadline isn’t until May 16th, I am still presuming it’s what Bartolini was referring to when he indicated they couldn’t wait until the week of April 11th.

(The original story included a note near the top that I’ve now removed. I explained that given the urgency of tonight’s meeting, I was sharing news after having only watched the first and final 10 minutes of the meeting.)

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Doni
6 years ago

From the 2 hours discussion when I was there, I felt Chair Bartolini was anxious to settle the deal, he kept cutting off resident comment while giving those Marijuana people endless chance to talk through. It made me wonder what incentive is behind this? Town of Hopkinton declined Marijuana facility’s application due to “the BOS wasn’t able to identify the benefit this Marijuana facitlity will bring to the town”, what’s the merit our southborough ZBA is seeing while we residents could have missed?

Jojama
6 years ago
Reply to  Doni

Doni,

You hit the nail on the head. The ZOB was in a rush to pass this as was the BOS. The only saving grace was one board member who thought the residents’ concerns were worth continuing the vote. Frankly, I was appalled at how rude, dismissive and uninformed Mr Bartolini was last night. At the same time he couldn’t have been more gracious and accommodating to Con Cam(sp?). I wish I tallied the number of times he misspoke, misprounced or was generally out to lunch!

jojama
6 years ago
Reply to  Jojama

correction ZBA

Julie Connelly
6 years ago

Thanks, Beth, for posting this quickly to let town residents know that there is a continued meeting tonight. I have never seen the Town Hall so packed, it was standing room only, and only one person spoke in support of the dispensary. Similar to the Board of Selectman, the ZBA members acted as if their hands are tied and that they have to approve this project. That is absolutely not the case. Both boards have discretion to deny the application. Many other towns have denied this and similar applicants and have suffered no negative repercussion for doing so. In light of the legitimate, well researched, and credible concerns raised by knowledgeable medical and law enforcement professionals regarding increases in crime, impaired driving, and the diversion of drugs into our community, this application should be denied due to its proximity to the Neary and Trottier Schools. The argument that we voted in favor of this at Town Meeting is weak at best. We voted to zone particular areas because we were told that the alternative would be that a dispensary could be set up anywhere. Fewer than 200 people (less than 5% of our voting population, and that’s being generous) were at that meeting, and it is a stretch to conclude that all of those people would have voted in favor of actually allowing a dispensary, especially in this particular location. Many more people than the 2/3 of the less than 200 Town Meeting attendees have spoken out against this project at the BOS and ZBA meetings and by signing the petition that has been circulating. A dispensary at this location would result in cash (credit/debit transactions are not permitted because marijuana remains illegal under federal law) being exchanged for drugs right next to our schools, and our town officials are throwing up their hands.

Tim Martel
6 years ago

The representative for the applicant may not have been correct in his statement that this use would be a “commercial use” and thus require a special permit. “Residence A” zoning in Southborough permits “customary home occupation” by right. Generally speaking – a “home occupation” is “a business, profession, occupation or trade conducted for gain or support entirely within a residential building or a structure accessory thereto, which is incidental and secondary to the use of such building for dwelling purposes and which does not change the essential residential character of such building.”

As a “home occupation”, there is an argument to be made that this program fulfills the requirements of the definition of a RECREATIONAL FACILITY as per the Southborough zoning code for medical marijuana – “A park, playground, forest preserve, conservation area, running trail or track, hiking trail, beach, wading pool, soccer field, baseball field, football field, basketball court, hockey rink, dance or gymnastic studio, whether publicly or privately owned, to which the public has a right of access as an invitee.”

I’ll also add that this program may not be considered a youth camp, as 105 CMR 430.000 lists all of the relevant inclusion and exclusion criteria. For example, it isn’t a camp if it is “(c) a program operated solely on a drop-in basis;”

So one would hope that all involved parties take this claim quite seriously to avoid what would appear to be a potential lawsuit against the town should the ZBA approve the site for a dispensary and the residents take them to court.

SB Resident
6 years ago

I don’t understand why Chair Bartolini thinks that the decision should be made before town meeting. Shouldn’t we let the voters decide?

And don’t give me the “we did decide” when Sboro voted in favor of it on the ballot question. When voting for the ballot question most people were voting for the concept not the implementation. I support it for medical uses myself. I just support it distributed through the pharmacies that we already have in place just like every other prescription medicine. I don’t support the dispensary concept with cookies, brownies, and 1000 cool strains which glorifies its use.

Rob
6 years ago
Reply to  SB Resident

I don’t understand what you don’t understand. They don’t care about town meeting. Its the “good ole boys” who make decisions for this town, not town meeting. They just use TM to verify their predetermined choices. We need to make town meeting easier for the residents to participate and attend without all the nonsense of the process we have now. Our town meeting style of government, combined with lack of good leadership, and town participation, is killing the town not only politically but economically too.

Kim
6 years ago
Reply to  Rob

I agree with SB resident and Rob. The way you can impact change is to attend the town meeting on April 10-11 with as many friends as you can get and vote on the warrants that will modify the zoning and overturn last nights ZBA vote.
I also firmly believe that Bartolini needs to be removed from his position on the ZBA immediately. He does not understand his roll and he pushed for the vote last night stating that if we didn’t vote yes, then the state of MA would come in and put a Dispensary anywhere they wanted in Southborough. That was and is simply not true. Of course, Aldo did not correct him because there was clearly a plan to push this through. The meeting was a waste of time for all of the residents as the decision to approve was already made. Bartolini said it himself.

APRIL
6 years ago
Reply to  Kim

same here… “I also firmly believe that Bartolini needs to be removed from his position on the ZBA immediately.” Anyone in BOS or ZBA says yes to this Dispensary will never get my family’s vote.

Hui
6 years ago
Reply to  APRIL

True! Same here!!! He only considered the convenience for Medical Marijuana Dispensary because Route 9 and HW495. He did not stand on Southborough residents’ position. That is ridiculous! Why do we need him for the Southborough. He should be the representative for CommCon.

n
6 years ago

Seems that Worcester pushed back a bit and negotiated…

http://www.wbjournal.com/article/20160316/NEWS01/160319960/worcester-medical-marijuana-dispensary-to-open

“The letter of non-opposition is a required as part of the application process to open a dispensary. Good Chemistry of Massachusetts will operate the dispensary, and will make an effort to ensure the 10-12 staffers it needs are local.
As a condition of receiving the letter, Good Chemistry signed a community host agreement, which requires it to pay the City $450,000 over three years, plus an escalating percentage of gross sales. Good Chemistry will also contribute $10,000 annually to public charities or causes of its choosing that benefit the neighborhood. The agreement is believed to be the largest signed by a municipality with a Registered Marijuana Dispensary thus far in the state, according to city officials.”

“Good Chemistry will pay the city $100,000 plus 1.5 percent of gross sales revenue during the first year of operation. In the second year, they will pay $150,000, plus 2 percent of gross sales revenue. In the third year, they will pay $200,000 plus 2.5 percent of gross sales revenue. The company will continue to pay 2.5 percent to the city in all subsequent years of operation. Good Chemistry has also agreed to pay all real property taxes.”

Kim
6 years ago
Reply to  n

Gross profits of a cash only business. Wishing Worcester good lucking on collecting that money.

N
6 years ago
Reply to  Kim

Agree on the collection issue.

It would seem that what Worcesrer agreed to would be a starting point if this is going to happen.

This is a much better location and so much more accessible to the greater metro west area.

Jun
6 years ago

the board of selectmen voted so irresponsibly and I don’t think they can still act on behalf of the public. Anyone knows the process to propose a special town meeting to amend the zoning law and oust the current board? seems like a 100 voters would form a quorum and a decision can be made. thanks
Jun

Jun
6 years ago
Reply to  Beth Melo

oh, yes. ZBA

Kim
6 years ago
Reply to  Jun

Jun, the town meeting on April 10-11 has new warrants that modify that zoning so that the Medical Marijuana Dispensary cannot be sited so close to the school. Please get as many of your friends to attend the meeting and vote yes on these warrants.

Al Hamilton
6 years ago
Reply to  Jun

Jun

I read the town code and there can’t find a recall provision for the ZBA. Each member is appointed by the BOS to a 5 year term. It is not even clear if the BOS can remove a member.

The BOS acts on behalf of the town because they each won an election. They had the guts to stand in the public square and offer their services. Most have had to win contested elections at one time or another. If you do not like it then you should find someone to put their hat in the ring. It would not be that hard for a write-in candidate to mount a creditable campaign.

I don’t always agree with the BOS and criticize them from time to time but but they are exercising their legitimate authority which was conferred on them at the ballot box.

Also, Town Meeting does not have the authority to remove anyone from office.

But
6 years ago
Reply to  Al Hamilton

Al,

Could citizens file a petition next year to give citizens or the selectmen the right to remove board members?

Or could citizens file a petition to make the zba an elected body?

Hui
6 years ago

My family will attend the town meeting on April 10-11 to vote the new warrants that modify that zoning so that the Medical Marijuana Dispensary cannot be sited so close to the school. Based on the description for the responsibility of BOS, “The Board of Selectmen has several important responsibilities under state statute: the power to prepare the town meeting warrant or agenda; the power to make appointments to town boards and offices; the power to employ professional administrative staff and town counsel; and the authority to grant licenses and permits.”, I am thinking about the responsibility of BOS. Do they consider or care Southborough residences’ position?

Matthew
6 years ago

Mr. Bartolini told me that we can appeal the decision within 20 days. Adding that the Governor told him that Southborough was the best place in Massachusetts for this facility given it’s proximity to 495 and the pike. “It will be great for Southborough and “they” are going to give us a lot of money…” I asked how much and he said he couldn’t tell me.

Anyone interested in moving forward with an appeal? Is it already underway?
I’ve emailed Karen Finelli about the process and will share anything I get back.

Leo Barrolini Jr
6 years ago

I did not talk to the governor about location, I simply feel strong that Southborough is a strong location due to the convenience of both 495 and Mass Pike. Negotiations of money are done by BOS not ZBA.

Doni
6 years ago

Strong location due to the convenience? Convenience of childeren easily get hit by people driving under influence or pay cash getting Marijunna? You claim you are a lifelong southborough resident but I barely see any consideration you showed on southborough residents’ future generation’s well being. Unbelieveable to have those ZBA memebers to govern this well educated and affulent community.

Shane Walsh
6 years ago
Reply to  Doni

Were you this strong about your opinion when Southborough opened up each of their 5 liquor stores throughout the town? A person gets arrested for DUI, the blame isn’t put on the head of the liquor store or bar owner that sold the alcohol and it certainly isn’t put on the liquor itself, it’s solely put on the driver. Stop putting blame on parties that don’t deserve it. Your comment sir is completely ridiculous and so extreme it’s not even funny. If you want to fight something fight it with facts and evidence not crap you pull out of thin air.

Shane Walsh
6 years ago
Reply to  Doni

This comment is so drastic and ridiculous I can’t believe it was even allowed to be posted. Stop pulling stuff out of thin air and attempting to prove points. You want to fight this? Do it the right way and do research and find evidence that support your claims not random stuff you think of.

Jim
6 years ago

Interesting that Governor Baker would be such a strong supporter of the financial upside involved in medical marijuana dispensaries when he sees that those behind medical use and recreational use are one in the same. In case you missed the op-ed piece from earlier this month:
https://www.boston.com/news/local-news/2016/03/07/massachusettss-most-powerful-politicians-come-out-against-legal-marijuana
Or perhaps Governor Baker thought that he initially was in support of medical marijuana use but then realized the real agenda behind the dispensaries and the longer term realities that go along with them. I think I know how he feels, but then, I’ve never spoken to him about the topic.

Sean Connelly
6 years ago

Also convenient to rob by the same people who robbed Walgreens at gunpoint last night on 9/Oak Hill.

Sean Connelly
6 years ago
Reply to  Beth Melo

Good to hear. The text chain that went out in the neighborhood at the time was different. But brandishing a gun in an altercation or robbing with a gun are equally unsettling.

While perhaps not a common occurrence in Southborough, I do worry about what a cash-only business on route 9 could bring with it, as I know I am not the only one.

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