Friday, May 13, 2016

Waubeeka resort lodging proposal: A lawsuit waiting to happen, says Langston

David Langston, of Williamstown, a retired Massachusetts College of Liberal Arts professor and former member of the Mount Greylock Regional School District writes to

When explaining the Waubeeka hotel proposal, Mr. Deep and his attorney have repeatedly deflected questions about the precise character of their plans by saying that such details will only emerge after they sign up a developer to build and operate the hotel -- business deals they say can only take place once Williamstown has amended its zoning bylaw authorizing the project.

It is difficult to think that any real
estate developer with sufficiently deep pockets for such a project would sign a contract unless there were powerful financial incentives that the investment would pay off.   It seems reasonable to think that a developer will direct a skeptical eye toward the prospect of building a very large hotel in a remote location where the already existing hotels are in constant financial difficulty;  it could  lead to driving hard bargains to justify the investment, and the incentives for that sort of development often take the form of  tax concessions and the elimination of limits on the scope of the project. 

The limits for the project prescribed by the zoning overlay district would be the obvious target that a developer would want to set aside.  And the well-worn path in Massachusetts for eliminating the constrictions of zoning laws is a lawsuit against a town with the  charge that the restrictions in the zoning code are illegal.  

Massachusetts courts have a notable track record of overturning zoning codes that unfairly restrict growth for some projects while permitting growth for other similar enterprises.   Whatever reasons the town might have for authorizing a development does not constrain the court in settling a developer's lawsuit.  

When  towns establish zoning that limits the character of development, those codes need careful scrutiny and drafting to ensure that the law meets standards of equal treatment for everyone and that conform to the often convoluted laws and legal precedents that govern land development.

The proposal to change the zoning code as a special case just for Waubeeka carries several notable risks.  This particular warrant article was drafted by a self-interested petitioner, not by a neutral or disinterested agent, and if the town amends the zoning law for a specific project, it opens the door for lawsuits that could set aside the town's motives and wishes, whatever they turn out to be.   And the ramifications might not apply just to Waubeeka but to zoning everywhere in town.  

Once the zoning laws are changed by town meeting or by court judgment, the Zoning Board of Appeals is constrained by the new terms of the law;  it cannot set limits that are not authorized by the statute.

In the 90s, when Williamstown overhauled its zoning code, one principle that shaped the revision was "greater density of development in the center of town in exchange for more open space on the periphery."  The Waubeeka proposal abridges that principle

So ​
whatever the merits of the Waubeeka idea, the  amount of time in town meeting (the final article on a very long Warrant) will not likely produce sound legislation;  there has been too little research on the possible consequences and legal ramifications for development in the town as a whole and the potential impact on the pocket books of the taxpayers.  

With a new generation becoming our governors and with new people moving to town, perhaps the  time has arrived for changing those principles on which the zoning code is based, but making that move in response to the citizen's petition whose wording carries the potential for a chain of lawsuits seems ill advised.


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