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Neighbors opposed the approval of an outdoor cannabis operation in North Adams. So the mayor is suing the Planning Board and the company

537 Ashland St. in North Adams

New England Alchemy has proposed an outdoor cannabis growing site at 537 Ashland St. in North Adams. The mayor suing the Planning Board and the company over the project's approval.

NORTH ADAMS — The mayor is suing the city’s Planning Board and a cannabis company that wants to open a facility on Ashland Street.

Mayor Jennifer Macksey filed a lawsuit in Berkshire Superior Court on April 1 appealing the Planning Board’s decision to grant New England Alchemy a special permit for a proposed outdoor cannabis cultivation and manufacturing facility.

“Unfortunately I had to stop the clock for New England Alchemy mostly around the concern for the neighborhood and the odor control,” Macksey told The Eagle on Thursday.

Named in the complaint is New England Alchemy and all members of the Planning Board, specifically in their official capacities as board members, per state law.

“I’m really disappointed Mayor Macksey has chosen this path of suing a city board,” said Lisa Blackmer, a member of the Planning Board named in the suit and also the City Council president. “I think it sends a chilling message to other boards, commissions and even the greater business community. I’m not happy about it.”

Rustin Kluge, the company’s owner, declined to comment on the legal action.

In mid-March, the Planning Board approved New England Alchemy’s application for a special permit — which by city ordinance any licensed marijuana establishment needs — to manufacture and grow cannabis outdoors at 537 Ashland St., if the company submits improved parking plans that the city approves.

After some debate about smell, North Adams Planning Board OKs outdoor cannabis grower on Ashland Street

The company plans to grow cannabis outdoors behind an 8-foot fence lined with lavender plants to minimize odor. At the March Planning Board meeting, there was some debate about smell, but the area is also zoned for industry, and the board granted the permit.

Soon after, more than 30 neighbors on on Davenport, Church and Corinth streets and Highland Avenue — nearby but not abutting the site — signed on to a petition opposing the project that they presented at a City Council meeting. They object to the project “on the basis of stench and security issues,” the petition says, and worry it will negatively impact their property values. Macksey announced she intended to challenge the application.

The suit calls the decision “arbitrary, capricious, based on untenable legal grounds and exceeds the legal authority of the Planning Board.” It cites a city ordinance that says authorities granting special permits must find that the use meets requirements including that it “will not create such noise, vibration, dust, heat, smoke, fumes, odor, glare, adverse visual effects or other nuisance or serious hazard so as to adversely affect the immediate neighborhood ... .”

In the Planning Board’s findings, included with its decision to grant the special permit, the board found the proposed project “will protect adjoining premises and the general neighborhood from any detrimental impact resulting from the use of the subject property,” including from odor.

The appeal disagrees, saying that “this is a mere recitation of required findings and does not include any specific, factual findings.”

The suit also notes that the vote on the special permit was not a roll call vote, as required in remote hearings.

Macksey emphasized that she is not against cannabis in the city. “This isn’t a thing about us being against cannabis; it’s about preserving our neighborhood.”

Brian Miksic, chair of the Planning Board, said there were few legal ways for the board to deny the permit. “The city of North Adams not long ago passed an ordinance explicitly allowing outdoor grow facilities. The City Council had a choice whether or not to explicitly allow outdoor grow facilities.”

He agrees with Blackmer that the legal action could have a “chilling” effect, even if it was not intended.

“It sends that message to these boards saying you can make whatever decision you want but if I don’t like it I can file suit,” he said. “These are volunteers. We need these people to be part of this and care about this.”

The Boston-based firm the city uses as its solicitor, KP Law, filed the appeal, and it’s not clear who will provide legal help to the Planning Board.

“We’re going back and forth on that matter,” Macksey said. “I can’t really address that right now. I don’t feel they really need an attorney because we’re not filing against them,” she said of the Planning Board members. “It’s against the special permit.”

Miksic feels the board is a difficult situation. “The avenue that we usually use for legal counsel is not there for us. And I have been trying to figure out, again as a volunteer board chair, how to deal with that situation.”

Blackmer is concerned about the price of the legal action. “The city is going to have to foot the cost for two legal teams,” she said, “One to defend us and one to basically sue us.”

What will the lawsuit cost the city? “Depends on how many hours we spend on it,” Macksey said. “My hope is New England Alchemy will withdraw their special permit or abandon the site or we can come to an agreement on them moving somewhere else.”

Greta Jochem can be reached at gjochem@berkshireeagle.com or 413-496-6272.

Reporter

Greta Jochem, a Report for America Corps member, joined the Eagle in 2021. Previously, she was a reporter at the Daily Hampshire Gazette. She is also a member of the investigations team.

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