NORTH ADAMS, Mass. — An ordinance that will put teeth into the Planning Board's control over special permits was approved by the City Council on Tuesday — despite concerns over its legality.
The zoning change would allow the board to revoke a special permit if the business failed to abide by the conditions attached to its permits.
Some city officials found the opinion of the city solicitor "rather vague" on whether a Planning Board had the ability to revoke special permits. That vagueness, they felt, was an opening to pass the ordinance and see what happens.
"It was kind of vague and could be read both ways to be quite honest," said Councilor Wayne Wilkinson, a former member of the board who'd championed the change. "I think it's important to realize that this would only be used in a very last resort, there's a number of other steps in between, by just asking to clean up your act or whatever the situation is to please follow the rules. ... It's for the chronic people who just say, pardon my language, 'screw you city, I'm going to do it my own way.'"
The Planning Board has been bedeviled at times by consistent scofflaws who violate the agreed to conditions on their operations and come into compliance for short periods before having to be reminded again and again through letters and fines and finally court action.
"I see the value in it, as the enforcement person that has to go out and do the enforcement. If there's no finality to it, no end, we ended up with this, a repeating loop of enforcement," said Building Inspector William Meranti.
City Councilor Marie T. Harpin, however, thought there was little in terms of vagueness in the opinion.
"I have been trained and educated to respect the opinion of legal counsel," she said, reading off the communication, and adding, "At the end of his letter, he says, 'ultimately, and in my opinion, the most prudent mechanism to enforce the provisions of duly issued special permit is pursuant to general law Chapter 40A section seven.'
"So he's giving an alternative. So this is our solicitor, this is who we pay for this, this is who we respect for legal authority, and I'm going to respect his opinion."
The communication by attorney Joel Bard of KP Law, the city's solicitor, stated, based on review of case law and a reading of MGL 40A, "it has been my opinion that [special permit granting authorities] do not have the inherent authority to revoke a duly issued special permit" and that imposing conditions that call for revocation "could invite litigation."
"Ultimately, and in my opinion, the most prudent mechanism to enforce the provisions of a duly issued special permit is pursuant to G.L. Chapter 40A, Section 7," he wrote.
However, he noted that in related cases the courts did not specifically rule against such actions though they did not together "stand for a strong proposition that special permits can be revoked." They did point to very specific circumstances such as fraud, serious mistakes or gross negligence, he wrote.
But included was a letter to Williamstown from the Attorney General's Office on the "Waubeeka Overlay District" bylaw passed in 2016 that included a revocation clause — and seemed, to officials, to support the city's proposed ordinance.
"We agree with Town Counsel and the opponents that the phrases 'revoke,' 'revoked,' 'surrender,' and 'surrendered' do not appear in G.L. c. 40A's text regarding special permits. 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) [referring to revocation]. 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," Attorney General Maura Healey wrote in approving the bylaw. "Therefore, it appears that G.L. c. 40A does not limit the power of a special permit granting authority to revoke a special permit in certain prescribed circumstances."
Zachary Feury, project coordinator in the Office of Community Development, said from his reading "according to this decision, there needs to prescribed circumstances, prescribed process for the revocation of a special permit."
That's included in the zoning ordinance: the first step would be an application for revocation suspension or alteration to the Planning Board, then the board would hold a public hearing on the application and make determination within a specified number of days.
Harpin said in two cases — the so-called pillar art and the new pet ordinance — the city had waited for the solicitor's opinion and then voted to follow it. The council had based its votes according to the legal opinion in the past and she questioned why it wasn't doing so now.
"The city solicitor has given his ruling, and he has told us that we can do this," responded Wilkinson. "The only problem might be litigation but as was mentioned earlier, anything Mr. Meranti does could cause litigation."
Councilor Keith Bona asked how the city would enforce the revocation of a special permit if the permitholder simply refused to stop operating or pay fines. Meranti said that was a worst-case scenario and would likely end up in court — which would be the case now for consistent violators. The new ordinance would put the burden on the permitholder to go to court rather than the city.
Councilor Lisa Blackmer, acting as president, said if business owners agreed to conditions and then failed to abide by them, "to me that's fraud and, in this case, it says that special permits can be revoked for that so I guess I'm on board with the ordinance as written."
The ordinance was passed on a 6-1 vote with Harpin voting no. President Jason LaForest and Councilor Jessica Sweeney were absent.
The zoning change also includes a streamlined site plan review process to aid new businesses in getting in front of the Planning Board faster.
In other business, the council passed a revised Youth Commission ordinance; set the preliminary election for Sept. 21; and confirmed election workers and the appointment of Mary Beth Kennedy to the Board of Registrars for a term to expire April 1, 2023. Kennedy replaces longtime board member Elizabeth DiLego, who had asked to step down.
"I just want to extend the thanks of the city for her many years of service to the board," said Mayor Thomas Bernard.
A communication by Councilor Bryan Sapienza on one-way street signage on Summer Street and St. John's Way was filed after the mayor said the Department of Public Works would look into it. Sapienza said the signs were turned around or obscured and vehicles had been seen going the wrong way down the one-way streets.
If you would like to contribute information on this article, contact us at info@iberkshires.com.
Your Comments
iBerkshires.com welcomes critical, respectful dialogue. Name-calling, personal attacks, libel, slander or foul language is not allowed. All comments are reviewed before posting and will be deleted or edited as necessary.
No Comments
Drury Senior Writes Song About Overcoming Challenges
By Jack GuerinoiBerkshires Staff
NORTH ADAMS, Mass. — Drury High senior and Berkshires' Academy for Advanced Musical Studies student drummer Zach Hillard has composed a song, "Here I Am," as a personal anthem of overcoming challenges.
"If you want to do something, go do it. That's the whole point behind 'Here I Am,'" Hillard said. "Any obstacles and challenges you may face in your life, if you have something you want to do, go for it. There is not one person on earth who does not have a dream or something they want to overcome. Whether it is physical or mental, it does not matter, if you want to do it."
The song is personal and showcases Hillard's struggles with cerebral palsy and how those struggles have shaped who he has become.
The song opens with the lyrics:
Look — my name is Zach.
I was born early, eager to see the world
and drop some knowledge.
Doctors said that I would not talk, walk,
and be wheelchair bound.
But look at me:
Here I am.
I'm talking, walking, and can do anything
I wanna do; nothing can stop me.
Hillard said he never knew writing music would be so important to him and was surprised by how much he took to the BAAMS assignment that asked students to pen some lyrics and themes for an original song.
Hillard decided to write about his own life.
"I've got a pretty cool life story. So I went home, I thought about it, and in about one day, I had most of it written," he said. "...The end of verse one I wrote ‘look at me here I am.' I thought 'Here I am' that is sort of catchy."
Drury High senior and Berkshires' Academy for Advanced Musical Studies student drummer Zach Hillard has composed a song, "Here I Am," as a personal anthem of overcoming challenges. click for more
Massachusetts College of Liberal Arts recognized five alumni on Saturday who have demonstrated excellence in their professional and personal lives. click for more
A state air quality director says Brayton Elementary School was a victim of an underreported "natural disaster" that hit the state in late summer. click for more
Trick or treat! Halloween is approaching, and what better way to celebrate with your kids than by participating in these kid-friendly events that are as sweet as the candy your children wholeheartedly adore click for more