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Paul Joffe
Paul Joffe's so-called 'flying church' on Main Sreet in Great Barrington. The project required multiple special permits which Joffe did not find too onerous.

It’s Not That Simple: The matter of special permits

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By Monday, Jul 8, 2019 Viewpoints 7

This column is a companion to the WSBS radio call-in show, “It’s Not That Simple.” Every other Friday at 9:05 we will discuss and dissect issues that the citizens of Great Barrington are talking about. Click here to listen to the most recent episode.

Have you ever read or heard about a problem facing the town and wondered why the elected boards don’t just fix it? The solution might seem obvious. Usually, It’s Not That Simple.

If the solutions were easy, there wouldn’t be problems.
We will explore the complexities, the competing interests, the less obvious costs or consequences, and the missing information that explains why It’s Not That Simple. We will do our best to steer clear of opinion and to just point out the issues that make the problems more complex than they might appear.

Although we both serve on elected town boards, we are not speaking for those boards or for the town in any capacity. We are only representing ourselves on the radio show and in this column. 

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On last week’s program we discussed an issue that is right at the top of the “It’s Not That Simple” list: Obstacles to development, specifically, Special Permits. Why does the town make it so hard on developers? Why isn’t GB’s permitting process more business friendly?

In our free time, there’s nothing we like more than to get into a deep discussion about zoning, permitting, and the rights of property owners verses abutters. We’ve nearly come to blows over the issue of special permits. (Some people watch baseball, some go to the opera, we read zoning bylaws.) Are they an unnecessary, business-unfriendly, time-consuming and expensive impediment to development, or are they very necessary and important protection for the character of our community and the rights of neighbors? In other words, who’s right, Pedro or Ed? Well, maybe It’s Not That Simple.

First a quick, and we hope not too dull explanation. Zoning bylaws allow and limit the size, location and density of buildings on a building lot. How tall, how close to the boundary, how many square feet must remain undeveloped vs built up, etc.

But zoning also regulates what can happen on the property, what uses are allowed in each zone. All of the allowed uses are listed on a table in the town zoning bylaws, cleverly named the “Table Of Use Regulations.” Each vertical column on the table is a different zone (industrial, residential, business, mixed use, etc) and each horizontal row is a different use (single-family housing, manufacturing, saw mill, gravel pit, dentist office). The table goes on, single-spaced, for six pages not counting footnotes. (You can find all zoning bylaws on the Planning Board page of the town website.)

Each use in each zone is either allowed (we say allowed “by right”), not allowed, or allowed if you get a special permit from one of the town boards. A special permit is the zoning bylaw’s way of saying, “maybe.” It means the use isn’t allowed automatically (by right), but if you can show that the benefits outweigh the negative impacts, then it’s allowed. Special permits are time consuming, usually involve lawyers and architects who like to be paid, and most frightening to the applicant, they can easily be challenged in court by any abutters which, win or lose, is expensive and can delay the project for years.

We know of one solid local business owner who needed to store equipment and wanted to construct an accessory building to do so. When he applied for a building permit, like any good citizen would, he was told that in order to build an accessory structure in his zoning district he would need a special permit. “That makes no sense!” he said. He was in an industrial zone and needed to put up what is basically a shed and was told he needed to go through the process of acquiring a Special Permit. Seriously!? Well, this was enough to send him and his business packing to the nearest town that did not have such oversight

So, it sounds like Pedro is right. Special permits take away property rights, and are bad for economic development. Well, It’s Not That Simple.

What our friend did not add to this story was that his property is on top of the town’s water source. In order to protect the water for everyone, a special zoning district was created. Any property on top of that water supply, no matter how it is zoned, no matter what uses are allowed, is subject to special scrutiny.

The special permit does make it harder for a business located in that zone. It can take away property rights of a property owner. It can drive investment and needed tax revenue away from our town. Obviously, none of that is good for our town. But protecting the water supply is also pretty important. Does the increased risk to the water supply outweigh the rights of the property owner? Maybe, maybe not. But it probably does justify the cost of an extra step in the permitting process which allows the public to weigh in and allows someone other than the property owner with a financial stake in the outcome, to make the decision. 

The purpose of special permits is not to encumber business owners or to drive investment away from our town. Rather, they provide some protection against environmental degradation, over-building, nuisances, etc. All of zoning is the balance between an individual property owners rights and the rights of the rest of the community. So, there is value in the burden of a special permit, right? Well, maybe It’s Not That Simple.  

We might all agree that protecting the water used by many outweighs the right of a single landowner to store dangerous chemicals. But special permits are also required for multi-family housing, offices, kennels, restaurants, adult day care, home occupations and many other uses, depending on the zone.  

Should my right to enjoy my property give me the right to object to those uses on my neighbor’s property? Or is that zoning overkill? That’s where opinion comes in. Everyone wants to be a libertarian, nobody wants to live next door to one. 

‘Flying Church’ developer Paul Joffe at the construction site. Photo: David Scribner

We would love to hear your perspectives on special permits, particularly certain business uses that require them such as restaurants or professional offices (dentists, therapists, etc…). Is requiring Special Permits of these businesses preventing them from setting up shop in GB? Is the cost and time required to get through the process prohibitive for businesses? Please write us at NotThatSimple528@gmail.com and let us know.

To help us understand how special permits affect development in GB we invited Paul Joffe to join us in the studio. As the developer of the Flying Church he has had to navigate the process through town boards, including obtaining several special permits. His impression was that it was not as complicated as we were making it sound, at least for his project. In fact, he was quite satisfied with the process and had no complaints about the town. 

His complaint was about building codes and regulations that are statewide and/or national that don’t make sense in our small town in the Northeast. Why does a building in Western Massachusetts have to withstand Florida-type hurricane force winds? What works in Boston may not make sense in Great Barrington. His conclusion: It’s obvious that building codes should be changed to reflect local conditions. Unless, It’s Not That Simple.

So, for you developers out there, GB can be friendly toward you. What might seem like unnecessary hurdles to the process which add costs and risks may also help create economically, environmentally, and culturally successful projects in GB. On the other hand, maybe we could tweak the special permit process to encourage development while still protecting neighborhood character.  

For more on the Flying Church please listen to the podcast on WSBS posted above.


We’ll be back in two weeks. In the meantime please email your program suggestions or questions about this or our previous programs to NotThatSimple528@gmail.com.

7 Comments   Add Comment

  1. Richard Allen says:

    This useful piece on zoning overlooks several important points:
    1. Having zoning is a choice, not a requirement. Most societies around the world don’t have zoning. Even in the U.S., cities as large as Houston don’t have zoning.
    2. The public interest in water supply (and similar public needs) can and should be satisfied through regulation specific to that need, not zoning. Using zoning to accomplish it creates a blunt weapon, ill suited to deal with the need, that simply weaponizes neighbors to complain and sometimes leads to less satisfactory resolutions of the real problem.
    3. In my opinion, the only natural “right” of the public that needs to be balanced against the rights of the property owner is the public’s right with respect to health and safety (which, as pointed out above, is best handled through specifically targeted regulation). Zoning creates an otherwise nonexistent right that always goes beyond health and safety into the realms of aesthetics and taste and similar soft issues that are often no more than “I don’t like it.” In those situations, the “right” created in the neighbors is always balanced by a detriment to the property owner. If the neighbors had to pay for the impact on the property owner, I think that could be justifiable policy. But without payment, isn’t it just theft?

    1. Ed Abrahams says:

      Interesting points, although I’m not sure everyone or even a majority would agree that it would be ok for their next door neighbor to build a 70 foot high metal building covering the entire lot. They might like it even less if the use was a 24 hour bagpipe school.

      And if my neighbors covered as much of their land as they wanted with impermeable surfaces, there could be flooding issues on my land.

      Zoning acknowledges that we live in a community.

      1. Richard Allen says:

        Societal norms should not be based on what people like or don’t like. If the 70 foot high building you refer to adversely affected my health or safety, then I’d have a right to oppose it. But if it was just ugly, then I wouldn’t. Same for the bagpipe school; excessive noise presents a health issue. As for the flooding example, if my land is flooded by the neighbor’s paving, I have a right to object.

        For centuries, and long before the first zoning laws were promulgated, these situations have been covered by a well developed body of American/English law regarding trespass, nuisance, etc. That body of law protects me against my neighbor’s actions if those actions actually harm me (as opposed to my just not liking what is being done). Zoning laws go much further, creating rights to object whether or not the objector is harmed. Seems to me that in those situations the objectors ought to bear the cost of the loss suffered by the land owner. Otherwise it’s legally sanctioned theft.

      2. Ed Abrahams says:

        Again, interesting argument, and I really mean that. However, as every zoning bylaw has passed with a 2/3 majority, I suspect you wouldn’t get much traction on this with your fellow community members.

  2. Craig Okerstrom-Lang says:

    Some good points Richard…especially weaponized zoning…I generally have liked having fairly strict zoning bylaws in place. But it can be abused.

    Zoning was just “weaponized” at the recent 2019 GB Annual Town Meeting by voting to change approved zoning for the proposed apartment building at the corner of Mahaiwe and South Main Street to a new zone that greatly limits its development. The GB Planning Board caved in to NIMBYISM-at-its-finest about protecting one (1) particular tree and a few newcomers not wanting anything built across from his house.

    1. Ellen Murtagh says:

      Thank you, Ed and Pancho, for a clear and not too complex’s description of zoning. One of your writings , I hope, will consider the concentration of use, population, description of our changing town. These are not simple issues; they reflect the present and future feel of living here. Will it become a city needing different ways of moving around every day, or what? I look forward to reading/ listening to what you can tell us.

      1. Ed Abrahams says:

        Thank you for bringing that up!

        We have been kicking around the idea of a show on “neighborhood character,” which is often talked about in zoning and permitting discussions. What is it, how much change is OK, how much should zoning restrict or allow change? As Mr. Allen’s comments suggest, there are a wide range of opinions about what that means and if it should even be a consideration.

        Stay tuned!

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