Hampden Planning Board again denies permit after judge annuls prior vote

Dec. 15, 2022 | Sarah Heinonen
sheinonen@thereminder.com


Hampden Planning Board member Jason Barroso gestures while arguing his position prior to a revote of the special permit for 2 Somers Rd.

Photo credit: Town of Hampden

HAMPDEN – For the second time, the Hampden Planning Board denied a special permit for a self-storage business at 2 Somers Rd.

The first vote on the matter was taken on Dec. 1, 2021. At that time, the permit failed to get the legally-required four votes necessary to pass, with three members in favor and two opposed. Board members Heather Beattie and Christine Brodeur, who voted against the permit, had recently been seated to replace two individuals who had resigned due to allegations of bias toward the project.

Attorney Michael Pill of the law firm of Green Miles Lipton LLP, who is working with the petitioner, Attorney Daniel Garvey, told Reminder Publishing, “This is the dirtiest mess I’ve ever seen.” He said the special permit petition was mired in controversy and “disgraceful smear tactics” that resulted in board member resignations and noted that “one of the most vigorous opponents” is not on the Planning Board.

Garvey brought the issue to Land Court. In his lawsuit, Garvey claimed that the board was biased against the project. In November, a judge issued a summary judgement annulling the Planning Board’s prior decision.

The judge also wrote, “It is hard not to conclude, as suggested by the plaintiffs, that the ‘fix was in,’” and said, “the absence of a rational basis in the record that supports the denial of the special permit requires my finding that the board’s decision was legally untenable, arbitrary, capricious, unreasonable and otherwise beyond the proper exercise of the board’s authority.”

The Planning Board was given the instruction to “review the record and identify any issues that are unresolved based on the recommendations of Tighe & Bond.” The board was given the option to issue the permit with the conditions that had previously been named, add or amend conditions “reasonably related to and supported by facts concerning any unresolved issues from the Tighe & Bond” or deny the permit “supported by factual findings from the record.”

Further, the judge wrote, “The board may not deny the application because the plaintiffs cannot ‘guarantee’ that there will never be any future leakage of chemicals, hazardous materials, or other noxious substances prohibited or controlled by the conditions of the special permit.”

The board conducted a meeting and revoted the issue on Dec. 7. Planning Board member Patrick Coyne, who had not been on the board during the first vote, was not present.

Beattie made a statement at the beginning of the meeting in which she said that she had been “completely impartial” and was “quite offended” by the judge’s comments. Further, Beattie said it is not counterintuitive to have approved the 21 conditions that were placed of the potential project and then deny the special permit.

Beattie explained that she voted against the project for two reasons: a concern for potential contamination of the water supply under the property and the facility not keeping “rural” aesthetic of the town.

When discussing the water supply, Beattie cited 6.117(d) of the Hampden zoning bylaws, “Requirements for Special Permit in the Water Supply Protection District,” which states, “A complete list of chemicals, pesticides, fuels and other potentially toxic or hazardous materials to be used or stored on the premises in quantities greater than those associated with normal household use.” Beattie said Tighe & Bond had specifically pointed to this bylaw in its report on the project.

Beattie said Garvey was unable to furnish such a list because, while he did not plan to use or store chemicals, he could not be sure his customers would not store them in the units. Furthermore, she said the insurance policy of over $1 million that Garvey was willing to obtain was evidence that he believed there may be a spill.

Fellow Planning Board member Jason Barroso disagreed. He said the insurance policy was an attempt to appease residents with water concerns and that the “list” had zero items on it, because the business would not have allowed chemicals on site.

Beattie scoffed at the idea that customers would adhere to the rules in their contract with the storage company that prohibited chemicals. Beattie’s asserted that “self-storage’s inherent nature” means it “cannot comply with that bylaw.”

Addressing the risk to the water supply, Barroso, who has a professional background in hazardous materials contamination, said the risk to the water is minimal. “This is what I do for a living,” he said.
“You voted to allow this, so I don’t think you’re the person to convince me,” Beattie said.

When Barroso asked how Beattie thought chemicals would enter the groundwater, she said asphalt “cracks.” Barroso said for contamination to happen, someone would have to bring prohibited chemicals into a storage unit, the chemicals would have to leak out of a box, reach the concrete pad beneath the unit, run out of the unit and into a crack in the asphalt and soak deep enough to reach the water level.

Barroso also said that the bylaw was vague because it did not define “household quantities.”
Beattie said that to satisfy her concerns, the storage business would need to conduct random, unannounced, frequent checks of the inside of all units. Barroso said the board could add that condition, but Beattie and Brodeur said it would be financially untenable for the company to comply. Brodeur specifically said she was concerned that “conditioning” the project “out of existence,” would force the judge’s hand into annulling this decision as well.

Planning Board Chair Madison Pixley reminded the board that the judge prohibited denial based on the petitioner’s inability to guarantee there would be leakage of chemicals. Beattie insisted that she had never used the word “guarantee.” Beattie summed up her position, “I think the risk is too great. Next to air, water is the most important thing we have.”

Rural character

Regarding the “rural character” issue, Beattie pointed to section 10.72.6 of the Hampden zoning bylaws, “Special Permit with Site Plan Approval and Site Plan Review Criteria,” stipulates that “the architectural design, layout and landscaping of the proposed development is in harmony with the historic, rural character of the neighborhood,” and section 7.137 states “the use of appropriate building materials, form and siting shall be used to provide visual interest and avoid monotony.”
Beattie said the area was “clustered” with shops that had a craftsman appearance and that a self-storage facility would not “look like rural, rustic Hampden.”

Pixley noted that “rural” is subjective.

Barroso said the outward appearance of the property – solid fencing, arborvitae and a craftsman-style office building – fulfilled the rural requirement. Beattie, however, said that from higher elevations in the town and the second floor of homes in the area, the units would be visible. She objected to the nearly 6-acre size of the property.

Beattie also said the business would lower property values. While admitting there was no expert testimony on this in the record, she said, “This is common sense to me.”

Barroso asked if Beattie would be satisfied it the units had craftsman-style gabled roofs to break up the visual “monotony.” Brodeur noted the judge’s ruling stated conditions can only be added to address issues cited by Tighe & Bond, not for aesthetic reasons.

“It’s still a self storage,” Beattie said.

Barroso said, “So it’s the use, but the use is allowed” by the bylaw. He added, “We’re going to get sued again and I am sick of spending my tax dollars on this.”

Beattie countered, “It would be easy to allow this. You think I like sitting here late at night?”
Brodeur agreed with Beattie that the board had a responsibility to the town.

“I’d rather over-restrict than under-restrict,” she said.

The special permit failed, with a vote of 2-2. After writing an official denial of the petition based on the meeting and the vote, the board will meet again on Dec. 19 to proofread the document and send it to the judge.

Pill told Reminder Publishing that he expected a denial of the permit to result in the judge overriding the decision and approving the permit without any of the conditions the town would have imposed on the business.

When asked about this possibility, Brodeur said, “I don’t think a judge would remove reasonable conditions.”

While a judge could overrule the board’s decision, Beattie said “it would be unusual.”

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