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05/26/2023 07:08 AMA public hearing over a request to modify conditions for a recently approved cannabis store has been postponed. The Zoning Commission, citing lack of notice, made the decision to table the hearing at its May 22 meeting. The next meeting will be June 26.
In January, the Zoning Commission approved an application from BUDR Holding 3 LLC to open a retail cannabis store at 755 Boston Post Road with several conditions. However, on April 20, Ian Butler, an attorney representing the applicant, sent a letter to Westbrook Zoning Enforcement Officer Steve Hnatuk seeking to modify some of the conditions.
A public hearing was supposed to be opened on May 22, but at the start of the Zoning Commission meeting, Chairman Harry Ruppenicker Jr. stated that notices hadn’t been delivered to abutting property owners as is required, so the hearing would be tabled a month. The application was not further remarked on that evening.
Requested Changes
The most serious of the conditions given with the original approval prohibited deliveries between the hours of 6:30 to 8:15 a.m., as well as between the hours of 2:30 and 3:45 p.m., Aug. 23 through June 20, Monday through Friday, and limits the business to operate by appointment only for at least the first three months. Other conditions related to redefining parking spaces, preventing people from using the parking lot for the neighboring food truck, and fixing the property’s landscaping.
The largest change the applicant is asking for is a modification to the condition that limits delivery times. In his letter, Butler argued the condition interferes with the state’s regulations that concern deliveries and is illegal.
“By prohibiting certain delivery times, the transporter is unable to truly randomize their delivery times. This makes it impossible for the transporter to comply with the state regulations. And would therefore make it impossible for the retailer to receive any deliveries,” Butler wrote.
The impetus for the condition was so that school-aged children wouldn’t see the pot deliveries, but Butler noted the deliveries would be made in unmarked vans, not large tractor-trailers. The state prohibits the vans from having any marking that advertises what is inside, Butler said.
“This is a strictly enforced security regulation. These vehicles undergo inspection by the state DCP (Department of Consumer Protection) prior to being authorized to conduct cannabis delivery. The concern that school-age children would somehow be influenced or harmed by seeing a nondescript, unmarked delivery van is unwarranted. There are any number of businesses in town that receive deliveries from vans that are not beholden to restrictions on delivery times,” Butler wrote.
Another change Butler asked for was to modify the requirement to pave rear parking spots on the property. The letter stated that an engineer found that paving the spaces would interfere with stormwater runoff and complicate access to the septic tank as well as interfere with a leeching field on the property.
“Additionally, all but two of the rear parking spaces are located partially/entirely on separate neighboring parcels over which the 755 Boston Post Rd parcel has an easement allowing parking. The current condition would require the applicant to make improvements by paving on a separate parcel of land,” Butler wrote in part.
Instead of paving, Butler offered that the applicant uses wheel stops, signage, and curbs to show where parking spaces are without paving.
The final modification request by the applicant is to not remove a generator and utility box on the property.
“Modification or removal of the transformer is not possible without cooperation of Eversource, which presents a substantial difficulty, delay, and expense,” Butler said.
Butler initially asked that the Zoning Commission grant the modification requests without a public hearing, something Butler wrote the commission has the authority to do for minor changes.
However, at April’s meeting, Zoning Commission members ruled that the requested changes warranted a public hearing.
As a result of holding a public hearing, the town’s engineering can review the application and provide feedback that could support or refute the applicant’s claims about the parking, something Commission member Dwayne Xenelis said he had doubts about at the April meeting.
According to documents available online, Thomas Fenton of Nathan L. Jacobson and Associates, inc – the town’s engineering consultant - reviewed the application for the commission. In a letter, Fenton wrote that while he agreed that paving the lot could increase runoff and make it more difficult to reach the leeching field, it wasn’t something that is impossible to do if the commission required it.
“In summary, both points present reasonable reasons for maintaining a pervious surface but would not bar paving the area if, in the [c]ommission’s evaluation, there are benefits to paving that outweigh these considerations. Those benefits could include: a more stable and uniform surface, the ability to clearly delineate parking stalls to maintain orderly parking, and minimizing the need for ongoing surface maintenance (periodic regrading or refreshing of the stone surface material),” Fenton wrote.
A Controversial Application
The commission received the application for a 1,500-square-foot retail marijuana store in November 2022, and since then, the application has been no stranger to controversy.
In 2021, Connecticut legislators passed a bill legalizing recreational marijuana use by adults in the state. The bill left it up to local municipalities to control its sale in each town.
In July 2022, Westbrook’s Zoning Commission approved regulations that allowed retail marijuana stores by special permit in the neighborhood commercial, turnpike interchange, industrial, and light industrial districts.
Despite several attempts to solicit public opinion, including public hearings and a community survey, the zoning commission received little feedback on the topic.
Once the BUDR application was filed, however, the public interest increased.
Across the two public hearings concerning the application, the vast majority of speakers were against the application. Residents voiced concerns about increased traffic, fear of increased crime, and a negative reputation for the town.
Even at the meeting on April 24, which was not a public hearing, one member of the public spoke out from the audience, asking the commission to consider children in the area when they debate the requests.
While most actual speakers at the public hearings have been against the application, social media comments from residents have been more favorable to the applicant.
Many comments pointed out that the property used to house a liquor store, and despite the dangers of alcohol use, there was never a public outcry as there has been with marijuana. Others said they felt that with marijuana sale now legal in Connecticut, there wasn’t a reason to oppose the application.
Following the approval of the application in January, a group of residents filed an appeal of the decision in Middletown Superior Court, according to the state’s judicial website.
The suit was filed by a group of property owners, including Jack Zamary, David Russell, Jay Mulligan, Vincent Catelotti, Lynne Catelotti, and Peter Jaquay. According to the complaint, the plaintiffs allege that the Commission “acted illegally, arbitrarily, unreasonably” in approving the application.
The lawsuit is ongoing, per the state judicial website.