BERLIN – The town’s zoning review board has dismissed the latest challenge to the new La Hacienda restaurant complex in Berlin.
Berlin resident Sandy Coyman, director of Worcester County’s Comprehensive Planning Department and a former member of the Berlin Planning Commission, challenged the zoning certificate for the project because there was no finding of facts in the record.
Coyman originally filed the appeal in November 2006 because he could not get clear information from the town’s planning and zoning office on whether the certificate had actually been issued. Coyman reiterated his appeal this summer, after Planning and Zoning Director Stacey Weisner issued the zoning certificate in early June. He contends that the certificate was issued in “an arbitrary and capricious manner.”
The zoning code and the town’s Comprehensive Plan are intended to bring higher quality development to the town, Coyman said.
The Berlin Board of Zoning Appeals (BZA), led by Chair Joe Moore, found that Coyman’s argument was superceded by the zoning code, which holds that the zoning administrator should issue the zoning certificate 45 days after the site plans are submitted, unless the Planning Commission makes a negative recommendation in that time.
“I’m very disappointed,” Coyman said. “I think they set the bar very, very low in terms of the standards for review of site plans and the requirements for substantial evidence in reasoned decisions by the Planning Commission.”
Project developer Bill Herbst criticized Coyman for taking 45 minutes to lay out his case, including addressing procedural issues in detail.
“All he needed to do was to get down to the substantive issues,” said Herbst.
Coyman addressed the substantive issues behind his appeal, rear parking and no record of a required discussion of highway issues as laid out in the town zoning code, after refuting challenges by Herbst’s legal representatives to his standing to make the appeal.
“There was really nothing in the record that substantiated what the Planning Commission did,” Coyman said after the BZA meeting.
The planning commission, under the Berlin code, only makes recommendations to the zoning administrator, who issues the certificate. According to Coyman, Weisner did not have the basis to do so.
“The problem before us, Joe, is there’s no report. There’s no recommendation. There was a lot of talk, but no formal recommendation,” Coyman said.
“Mrs. Weisner is at the Planning Commission hearings. She participates in those hearings,” Moore said.
“This case was heard over a year and a half or longer. There was all kinds of discussion. Without a formal report, who knows what’s in her memory,” Coyman said.
Weisner, questioned by planning commission attorney Ed Baker, who represented her and the town at the appeal, explained she has been taking the minutes for the planning commission meetings since September 2005. She said she issued the zoning certificate based on the commission’s approval.
“They were the conditions of the motion,” said Weisner.
“The zoning certificate clearly refers to the exact same conditions the planning commission recommended,” Baker said.
The commission also did not follow the zoning code in reviewing the project site plan, Coyman contended. Parking, under the code, should be placed behind buildings, if possible.
The end result, after hours of discussion, was a building with one row of parking in the front of the building and the rest to the rear. The developer should have to show that rear parking is a hardship, Coyman said. There should also be a record of the findings, which should include a justification of the decision to locate some parking in front.
“The code says ‘whenever possible’. You have to demonstrate it’s not possible,” Coyman said.
Moore disagreed, saying the commission could exercise its discretion.
Between Coyman and planning commission member Joe Hill, five alternatives were presented that would have kept parking in the rear, Coyman said.
In the code, Coyman said the planning commission is also required to consider the major corridors guidelines for the town, but there was no such discussion.
“I’m not expecting you to overturn it,” Coyman said. “This should be remanded to the planning commission. They should do their full job.”
Moore responded, “You’re asking us to preempt the determination of the Planning Commission and I don’t feel that’s appropriate,” said Moore.
While the appeal to the BZA failed, Coyman does have the option of appealing to the Circuit Court.
“I’m thinking about it. I don’t know what I’m going to do at this point. I’m going to wait for the dust to settle,” Coyman said.
Meanwhile, Herbst is looking forward to getting his project off the ground.
“We’re going to presume that there’ll be no other appeal,” he said. “I’d like to think we’d be done by the fall of next year and ready to operate.”