Great Barrington — At their meeting on Tuesday, October 7, members of the town’s Zoning Board of Appeals unanimously rejected plans for a farm-to-table restaurant on farmland property at 87 Alford Road.
The property is currently owned by Abigail Haut LLC of Great Barrington and is zoned in an “R4” Large Acreage Residential district.
The town’s zoning bylaws list that “restaurants and other places for serving food, other than fast-food eating establishments,” are not a permitted use in the R4 zoning district.
Back in July, attorney Kathleen McCormick, of law firm McCormick, Murtagh, and Marcus of Great Barrington, submitted an application to the town’s building inspector on behalf of clients Peter Ungar and Ginhee Ungar of Somerville.
According to McCormick, the Ungars are under contract to purchase the property contingent upon zoning approval.
In the application, McCormick cites that Massachusetts General Law Chapter 40A Section 3 “is applicable, protects the agricultural use [of the land] and exempts the use [of a restaurant and ADUs] from zoning regarding land use including restrictions related to use defined in the Town of Great Barrington Zoning Bylaw, Sections 3 Use Regulations and Section 8 Special Residential Regulations.”
“The purpose of [the Massachusetts General Law] is to promote agricultural use and production to benefit the municipality ‘within all zoning districts in a municipality,’” McCormick argues. “A town’s zoning bylaw may not unreasonably prohibit or regulate the use of land zoned and used for agricultural purposes. My clients intend to support the growth of their farm by operating a farm-to-table restaurant on the premises. Without this fully integrated approach to agriculture (i.e. accessory uses), their operational model would not be successful. My clients’ intent comports with applicable state guidelines pertaining to accessory uses to agriculture.”
The application lists that of the property’s approximately 198 acres of agricultural land, 168 acres are under a conservation restriction by the Berkshire Natural Resources Council, while the remaining 30 acres are outside that restriction.
As part of the purchase contract, the Ungars would also purchase an abutting 14.6-acre lot that contains a residential structure and barns.
The Zoning Board held a public hearing on plans for the restaurant and the property during its October 7 meeting.
While the board received letters both for and against the planned restaurant before the hearing, residents attending the meeting itself spoke overwhelmingly against the plans.
At the beginning of the meeting, Zoning Board Chair Peter Most [Disclaimer: Peter Most is a contributing writer for The Berkshire Edge] told the audience at Town Hall that he consulted with state counsel because he is part of a group interested in purchasing the former Bard College at Simon’s Rock property, which is also on Alford Road. Bard College at Simon’s Rock is listed as a property abutter in the project application. “It was determined [by the state] that I do not have a conflict of interest,” Most said. “I have submitted to the [town] clerk the disclosure of the appearance of conflict of interest. I have an interest in Simon’s Rock, but it is not currently financial.”
McCormick presented plans to the board at the meeting on behalf of the Ungars. “I’ve read a lot from the media, and I’ve read some of the letters that were sent to me from abutters, and I heard that there’s concerns regarding the chicken or the egg,” McCormick said at the beginning of her presentation. “I also heard from the board yesterday on how can we be talking about a restaurant if we don’t have agriculture? I’ve also heard a warning to this board not to give broad exemptions. I just want to remind [people] that we’re not here for a special permit [application], we are here to interpret the zoning. We requested a zoning interpretation from the building inspector, and that’s what we have here.”
Connor Stedman, a lead designer at AppleSeed Permaculture in High Falls, N.Y., presented a five-year plan for the property listing how many tons of food would be grown and produced on the property and how much would be purchased from in-state farms.
The plan lists that 25 percent of the food for the restaurant would be grown and cultivated on site, and 50 percent would be purchased from in-state farms.
The chart lists that in 2027 an estimated 84 tons of food would come from Massachusetts farms, while 42 tons would be cultivated on site.
“There are approximately 50 acres of arable land on this property, and the long-term business intention is to use all of them for agricultural production,” Stedman explained. “Every season farmers face potential market issues, supply chain issues, weather and climate issues. There is a degree of confidence here that is related to an average or median year with a quality farm manager on the team from the beginning upon closing on the property. We can develop the intensive production methods that can achieve this, and that’s the assumption being made here.”
Most questioned whether or not the soil on the farm was fertile, but Stedman responded that there is a diversity of soil quality on the property’s various fields. “There are at least four or five different soil types present in these agricultural areas, and the annual production [of agriculture would be] concentrated in the highest quality vegetable soils,” Stedman said. “The lower quality vegetable soils will be for grain, pulse production, and tree fruits, which are tolerant of shallower soil.”
Stedman added that a “large proportion” of the crop output on the farm would be used for the restaurant.
“I know that the percentage [of food cultivated on the property] that was called out wasn’t vastly over 25 percent,” McCormick said. “I want the board to realize that we understand that if we don’t meet this, that if we don’t hit that 25 percent level, that we do not have an agricultural exemption. We could have it in some years, and not have it in other years.”
“If this was a special permit application, we could have a condition that, in years that you don’t meet the threshold requirements [of cultivation], the restaurant would not be permitted to proceed,” Most said. “But because you are not seeking a special permit, we can’t condition what you’ve asked for unless you want to turn this into a special permit [application] where we set conditions.”
“The state statute is very clear, if they would not give us an agricultural exemption, then we would be operating outside of allowable zoning [regulations],” McCormick said. “Then zoning enforcement [from the town] would happen. Enforcement is on the town, but you have that mechanism.”
“Sounds like there is a lot of trust in this,” ZBA member Madonna Meagher said. “We’d be trusting you to provide that [cultivation level], but we also need people [from the town] to enforce it. We’ve been on the zoning board for a while, and that’s difficult. There are a limited number of people to go around and enforce [zoning regulations].”
“From a recent experience, in March 2024, this board granted the Masonic Temple [on 232 Main Street] a permit and included in the order that no additional structures would be erected,” Most said. “If you go to see the temple at the moment, you’re going to see that they have erected a fence where there’s a prescriptive easement, and the town’s building enforcement officer has not been able to get the fence to come down. There are difficulties in the town of our size to enforce orders, and I am skeptical that once the restaurant is operating, that it won’t continue to operate [if it did not meet onsite agricultural growth thresholds].”
Later in the meeting, Most said that because the Ungars do not currently own the property and are only “prospective purchasers,” they do not have a legal standing to come before the ZBA for a zoning determination under state General Laws Chapter 40a Section 8 and Section 10.
McCormick disagreed with Most, stating, “I feel that with the permission from the current owner, we have a right to get a request for a zoning interpretation.”
Residents strongly oppose plans
During the public comment portion of the hearing, residents and property abutters spoke strongly in opposition to the proposed plans, including Great Barrington attorney Charles Ferris who told the board that he is representing several property abutters.
Ferris cited a letter to the ZBA from Mary Berle, owner of Lila’s Mountain Farm. “Her letter said, ‘Hey, there is a really big problem with irrigation and getting these wells [to operate],’ so it could be years before the water is there to start growing the crops,” Ferris said. “What I would be concerned with is if the building inspector is told, ‘OK, this sounds like an agricultural use. You can start building your restaurant before you meet the [growing] goals.’ You are presented with hopes and dreams. It’s a great model. Maybe it’ll work. Maybe it’ll take years to get the irrigation in. Maybe it will take years for fruit trees, and I think it will take three to five years before trees start producing fruit.”
Resident Rufus Jones told the board that he spoke to a “local, long-standing owner of a working farm in Great Barrington,” whom he left unnamed. “He states that the seasonality risk in Great Barrington is significant, and therefore the estimated yield and annual production projections that were presented are problematic,” Jones said. “The risky yield and production projections also means that the restaurant’s profit projections are at risk. A commercial restaurant in our residential location puts us at an increased risk to our residential quality of life. The quiet, natural harmony is what makes our neighborhood sacred and worth protecting. A commercial restaurant here would change that forever because light and noise pollution would replace the serenity, [and] traffic and delivery vehicles would [threaten] the wildlife and peace.”
ZBA determination: Ungars have no legal standing
After over an hour of public comments, the board spoke against the proposed plans.
“Mister Ungar, I said it once, and I’ll say it again, you are a brave man,” Meagher said. “You have a vision. I’ve read the letters of support [for the project] that were pouring in and about the content of your character in what you do as a chef. That piece of land is beautiful, and you want to make it more beautiful. [With the plan] we really needed to have the farming [part] lead everything, which I think was your intent, then the dining would follow. Instead, in your presentation and concept, it’s in reverse.”
“I see this as a matter of law about the interpretation of Section 3,” board member Michael Wise said. “One position would be that the issue is not whether or not this is an accessory use. The issue is whether this is embraced by the exemption of Section 3, whether it is ‘agriculture.’ I can’t bring myself to think that a restaurant is agriculture.”
Most once again questioned the Ungars legal standing because they do not own the property. “[State regulations] state that the ZBA may only hear from an aggrieved party; somebody that has a legally cognizable interest in the property, which is ownership, a leasehold interest, and an enforceable, equitable right,” Most said. “You have none of those things. You haven’t signed. You have not purchased the property. Intentions to acquire do not suffice. Even if you had standing or standing was assumed, this appeal does not present an actual zoning dispute. It seeks an advisory opinion, a determination whether the appellant purchased the property and constructed a restaurant.”
Most added that “Zoning boards are not authorized to issue advisory or hypothetical opinions.”
A motion was made to deny the application based on the lack of legal standing, which was approved unanimously by the board.
