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.