Attorney General Upholds Williamstown's Waubeeka ByLaw
WILLIAMSTOWN, Mass. — The owner of Waubeeka Golf Links has been chomping at the bit to move forward with a proposal to diversify the property in an effort to preserve the 50-year-old enterprise.
"We have talked about hiring a consulting firm, CBRE," Mike Deep said Friday morning in his office at the Cold Spring Road club. "They were actually here about a month ago, one of their managing directors came. And we showed them all of Williamstown. We showed them MCLA, Mass MoCA, the Clark. We gave them a nice tour of the area. We talked about Jiminy Peak. All the positive things in the area.
"We left it at: We were going to hire CBRE to do the feasibility study, to determine what the return on investment would be [for a country inn]. … I was all ready to write the check the next day, but [attorney Stan Parese] said, 'Don't write the check until we get the official ruling from the attorney general.' "
Late Thursday afternoon, the word came down from Boston.
After a six-month review of the Waubeeka Overlay District bylaw passed at May's annual town meeting, the Attorney General's Office on Thursday notified the town that the bylaw allowing development of a 120-room inn s approved.
"Based on the Attorney General's standard of review, we cannot conclude that the new Section 70-2.3 (F) is inconsistent with state law and we therefore approve it," reads the final paragraph of a seven-page letter signed by Assistant Attorney General Kelli E. Gunagan and Attorney General Maura Healey.
According to the letter, the AGO received "letters of disapproval" of two parts of the bylaw: the revocation clause that allows Waubeeka to surrender the overlay district status in the future and the "conservation restriction" clause that specifies what activities can take place on conserved land.
The AGO letter does not identify the writers of the disapproval letters, but Pittsfield attorney and Williamstown resident Sherwood Guernsey, whose home abuts the Waubeeka property, was a frequent critic of proposals that ultimately made it into the bylaw in the runup to town meeting, and specifically assailed the revocation from the floor of the May meeting, where the bylaw narrowly achieved the two-thirds majority needed for passage.
A call to Guernsey's office on Friday morning was not immediately returned.
The AGO's letter says the office considered whether the revocation clause is "unconstitutionally vague."
The commonwealth's top lawyer agreed that the phrases "revoke," "revoked," "surrender" and "surrendered" do not appear in the controlling chapter of Massachusetts law but found that their absence does not mean that portion of the by-law must be stricken.
"However, the fact that G.L.c. 40A does not refer to the revocation or surrendering of special permits does not alone serve as grounds for this Office to disapprove Section 70-2.3 (F) (2). [of the by-law]," the AGO wrote. "The Attorney General must cite a conflict with the statute in order to disapprove this by-law text. Moreover, various court decisions discuss instances in which a special permit was ‘revoked,' and note the power of a special permit granting to revoke a special permit."
The AGO further agreed with Town Counsel Joel Bard that the revocation clause in the bylaw is similar to "a lapse in its use, which is contemplated by G.L.c. 40A, § 9."
As for the conservation restriction clause of the by-law, the AGO letter indicates that issue is one the town will need to address down the road — if and when a CR is issued.
"Whether a CR written pursuant to the bylaw is approved under G.L. c. 184, § 32, is an 'as applied' issue outside the scope of review by the Attorney General," the AGO wrote. "However, the Town may wish to discuss the provisions of any proposed CR with Town Counsel to ensure that it will be approved under G.L.c. 184, § 32, and subject to all the constitutional and statutory protections accorded to conservation land."
The Waubeeka Overlay District bylaw was the end product of a 10-month process that started in the Planning Board and ended up on the floor of town meeting after the board tabled the question and Parese, a Williamstown resident and Deep's attorney, introduced the by-law by citizen's petition.
All bylaws in commonwealth are subject to review by the AGO after passage at town meeting. The Boston office twice notified the town that it needed an extension past the time when it customarily would have ruled on the overlay district.
Deep and Parese argued for months that without a by-law in place and a "regulatory path" for development, Deep could not seriously engage potential partners who might want to build an inn at the financially-challenged 18-hole golf course.
Deep repeatedly argued that his main interest was in keeping Waubeeka afloat and available to the town as a solvent employer and an amenity to residents — sentiments he reiterated on Friday morning.
Parese at times pointedly noted that the property, which lies in one of the town's rural residence districts, could be developed for residential use "by right," if the golf course failed.
Deep said Friday that he has had preliminary conversations with potential hotel developers, but those talks ended when the developers asked to see a feasibility study.
CBRE has said it can produce such a study in as little as eight weeks. Now that he has the AGO's blessing for the overlay district, Deep said he plans to hire the Los Angeles-based firm as quickly as possible.
Deep said he did not know whether opponents of the by-law would pursue a remedy in the courthouse, but he is optimistic it will not come to that.
"I would hope we could all get along," Deep said. "I'm sure they will be at the Zoning Board to express their concerns [during a potential permitting process], but I would like to work with them and do what's best for the Town of Williamstown."
Waubeeka Overlay District by iBerkshires.com on Scribd
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