Permit for Whately pot store tabled again over parking concerns

  • The site of the two marijuana facilities at the old Sugarloaf Shoppes. The red building is ToroVerde while the gray building is DMCTC. STAFF PHOTO/CHRIS LARABEE

Staff Writer
Published: 9/6/2021 9:14:26 AM

WHATELY — Debilitating Medical Condition Treatment Centers’ (DMCTC) special permit for a retail marijuana store at 424 State Road, Unit B was tabled for the second consecutive Zoning Board of Appeals meeting following discussions about parking.

Concerns about parking at the former Sugarloaf Shoppes were raised by ToroVerde, another dispensary already permitted to operate in Unit A. Both DMCTC and ToroVerde are planning to lease out additional office or retail space, which could further strain the limited parking capacity of 87 parking spaces.

Isaac Fleisher, a Bacon Wilson P.C. attorney representing DMCTC, said the entire property was built without the required number of parking spots. He added Berkshire Design Group, which was contracted by DMCTC, conducted the parking analysis with two dispensaries and office space estimates because any other retail uses would require more special permits in the future.

“If the entire site were filled with retail it would come to more than 87 parking spaces,” Fleisher said. “Berkshire Design’s analysis takes into account two marijuana uses and assumes the rest of the site is office space because that is allowed by right … most likely scenarios ranged from 59 to 62 parking spaces needed.”

Fleisher said the traffic analysis is “most likely overestimating” the parking needs for dispensaries and there shouldn’t be a “substantial impact on traffic” in the area. He noted the scenes of huge lines at New England Treatment Access (NETA) in Northampton were unique because it was the first store in western Massachusetts.

“There’s 169 retail establishments in the state and about a quarter are right here in Hampshire and Franklin county,” Fleisher said. “It’s extremely unlikely they have a NETA situation.”

Much of the discussion focused on ToroVerde’s concerns about leasing additional retail or restaurant space in the future. The argument is ToroVerde’s leasing ability would be limited if DMCTC is present next door.

The ZBA, however, decided any hypothetical uses in the future are irrelevant to DMCTC’s present application.

“We deal with what we have,” ZBA Chair Roger Lipton said. “I am not inclined to think about future uses.”

Fellow ZBA member Bob Smith agreed and said the only thing that matters is the current applicant in front of them.

“I don’t want to hear any more about a restaurant,” Smith said.

Richard Evans, an attorney representing ToroVerde, said the argument never mentioned hypothetical or future uses and is focused on the plain language of Whately’s bylaws.

Town bylaws state “the applicant for a special permit for such use shall demonstrate that the entire property shall comply” with parking requirements.

He said DMCTC’s parking analysis did not take all the units into account.

“I’d just like to add the code is very clear that when calculating the space,” Evans said. “The entire property is not 3,100 square feet, it’s 8,000 square feet, I don’t think that’s vague.”

Evans said no permit should be approved until the ZBA discovers why the Sugarloaf Shoppes were allowed to operate despite lacking the required number of parking spaces.

“Why does this plaza only have 87 spaces when zoning requires a lot more than that,” Evans said. “I don’t think the board should make a decision until they know.”

Fleisher disagreed with Evans’ interpretation and said the definition of “entire property” would be more relevant if the lot was already filled with retail stores.

“The special permit is being considered for 3,100 square feet,” Fleisher said. “I think entire property would be a much more important distinction if this is a fully occupied condominium.”

Lipton agreed with Evans and said they seek town counsel’s advice on interpreting whether the bylaw phrase “entire property” means the entire parcel or just the permitted property on its own.

“This all hinges on this particular paragraph,” Lipton said after reading the bylaw again. “We’ve got three attorneys here (Lipton is an attorney) … let’s come up with an agreement of facts and give that to town counsel.”

Fleisher and Evans both agreed to those terms. Lipton said it’s unfortunate to cause another delay on the decision, but it’s necessary to seek counsel’s thoughts.

“It will cause another delay,” Lipton said, “but I don’t think its an unnecessarily long delay.”

DMCTC will appear before the ZBA for the third time Oct. 7 at 7 p.m.




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