I have been asked informally for some advice by a group of citizens concerned about certain aspects of the Pioneer Valley Hotel Group’s proposed hotel at Pulaski Park. I share their support of the basic concept of the hotel and parking garage, as well as their concerns about some important site planning issues and, in particular, the effect that this building will have on the New South Street affordable housing apartments. I am also concerned about improving Pulaski Park as a vibrant urban public space and maintaining and strengthening pedestrian connections between the lower parking area and garage and Pulaski Park and Main Street.
As an urban planner and attorney with a practice focused on land use law and the revitalization of cities, I wanted to provide some assistance to the community and my fellow citizens. The information and suggestions below are not intended as legal advice to be relied upon by any party in making decisions relative to the hotel project. I have not been retained as an attorney by any party and I do not intend to represent anyone in that capacity. My hope is to frame a meaningful and cooperative public dialogue in which all parties will work together to find a solution that works for the developer, the City, and the residents of the adjoining building. This is a very important project for the City, and if it is done right, with adequate attention to design details and consideration of the public interest and the needs of the neighboring apartment building, it will be a huge success for our City.
I therefore offer the following observations:I have discussed the hotel proposal with Wayne Feiden and have reviewed the special permit decision by the Planning Board from October 2006. Wayne confirmed his position that the special permit issuance essentially forecloses discussion of a number of issues, including setbacks. His view is that this is an urban infill project and that people living downtown should expect to have buildings close to them. I agree that as a general proposition this is true, but the reason for having site plan review is to make sure that a particular building functions effectively on a particular site. This is not a typical Main Street building with buildings on either side of it lining the street. This is a unique site, with a unique public space at its front door and unique neighbors on each side, whose needs should be properly considered. This proposal also provides a unique opportunity to add vitality to an urban green space (Pulaski Park) that has not lived up to its potential as a public square. Enclosing this space with a substantial building opposite Main Street makes great sense from an urban design perspective. Even better would be to have a publicly accessible caf , restaurant, or similar public space that opens onto the Park from the hotel and provides a semi-public transition between the hotel and the Park. Ideally, the building would complement and add quality to the architectural fabric of the City. At a minimum, it should not detract from this fabric. However, its main function from an urban design perspective is to enclose an urban space, which it effectively does.
- The Northampton zoning ordinance provides, in the site plan review section (11.3) that no special permit may be issued prior to site plan approval of the project. That is, a special permit cannot be issued until site plan approval has been granted. Technically, therefore, the special permit that was issued in November 2006 should not have been granted, since it did not comply with this section of the ordinance. When asked about this, Wayne stated that since the special permit had been granted and no one had appealed it to court within the statutory time limit of 60 days, it was too late to raise the issue of non-compliance with the site plan requirement. While he is probably correct about this, I disagree that this precludes discussion of setbacks and other measures needed to mitigate impacts on neighboring properties and to improve the public realm. (We also discussed the wisdom of requiring site plan approval prior to special permit approval, which is unusual, but it is another matter that should be reconsidered at the appropriate time.)
- The special permit that was granted in October 2006 specifically reserved certain site planning issues for consideration later under site plan review. The special permit contains the following statement: “The Planning Board granted the special permit only based on the proposed use and reserved the right to address site plan issues of layout, circulation, building elevations and other technical details as required in Section 11 of the Northampton Zoning Ordinance at such time as the formal site plan is submitted as a separate application to the Office of Planning and Development.”(emphasis added) There is nothing in the special permit that states what the setbacks are supposed to be. Accompanying the special permit application is a plan labeled “Preliminary Site Layout,” drawn at a scale of 1”=20’ which shows approximate locations and sizes of the hotel and the parking garage, as well as a few specific distances, including the setback from the roundhouse parcel (only 11’- 2”) and a rather unclear specification of a side setback on the side facing the apartments. In my view, this plan, which apparently was not discussed by the Planning Board (see the Planning Board minutes), is not in a form that is sufficiently clear or specific to be considered a binding part of the special permit approval, especially in light of the specific reservation of all of the site planning details for later consideration under site plan review. It seems to me that this preliminary site layout leaves many unanswered questions and therefore is properly subject to elaboration, detailing, and modification by the Planning Board in the course of site plan review.
- In arguing that the setbacks could not be modified at this stage, Wayne referred to a recent Land Court decision from Marblehead, in Essex County (Muldoon v. Stern), which stated, among other things, that a planning board could not modify a setback as part of a “special permit with site plan review” proceeding. This case was odd in a number of respects, not the least of which that it said that the Planning Board could specify building materials, which is clearly prohibited by state law. This was a lower court case and has little or no effect as legal precedent. Also, it was a case regarding a single-family dwelling on a small lot where the single family use was technically allowed by right. The facts of this case are entirely different from the Northampton hotel situation (a major commercial use requiring a special permit to go forward), and the Northampton zoning ordinance specifically gives the Planning Board the authority to modify setbacks when there is a special permit involved. The Marblehead zoning ordinance did not have a provision allowing modification of setbacks. Wayne stated that because the Northampton Planning Board did not modify the setbacks when they granted the special permit, they were prevented from doing so in the course of site plan review. While this may have been true if the Planning Board had actually ruled on the setback issue, I think that because the Planning Board explicitly deferred all issues of site layout to the site plan review proceeding, it retained its authority to consider dimensional standards in the site plan review. While this is one of many areas where the city’s zoning ordinance is a bit murky, I think that any other interpretation would essentially deprive the Planning Board of the opportunity to consider these very important issues, since the Board did not have adequate information to consider it at the time of considering the special permit. For example, without having detailed side elevations of the hotel and garage and plans for its ventilation systems, it would be impossible to determine how much of setback should be required. The design of the building and its mechanical systems has a significant bearing on how much it impacts neighboring properties. There are many ways to mitigate these impacts, of which a larger setback is just one.
- The site plan review criteria require the Planning Board to find that the site plan provides “sound and sight buffers and preservation of views, light, and air” from “adjoining premises.” If the developer can achieve these objectives without increasing the setback, then he may have a right to be allowed to do this. For example, he could reconfigure the building on its proposed footprint and maintain the ground level setback, but place a pedestrian promenade around the side of the building (within that footprint) with plantings that buffer the building’s impact, step back the upper floors of the hotel, and design the ventilation systems so that they vent away from neighboring buildings. This would open up views from the neighboring apartments and provide light and clean air. On the other hand, he might prefer to increase the setback and not significantly modify the design of the building. As long as he can fulfill the criteria in ordinance, the Planning Board must approve the project. But if the developer does not fulfill these criteria, the Planning Board has a right to impose conditions necessary for their fulfillment, which may or may not require changes to setbacks depending on the other design details.
- The bottom line is that the special permit granted by the Planning Board in 2006 did not specify any of the site layout details, including setbacks, and left these aspects for consideration as part of site plan review. As a result, all site planning issues are legitimately on the table now for consideration by the Planning Board, including but not limited to pedestrian circulation, buffering of residences, setbacks, and any other reasonable measures necessary to mitigate impacts on light, air, and views from neighboring properties. The Planning Board cannot deny the “use,” i.e. a hotel, but it does retain the right to ensure that design details are not detrimental to the City and its neighbors. The Board is obligated to see to it that the site plan criteria in the ordinance are satisfied.
I hope these observations are helpful. I have been asked about circulating this email to others and I am comfortable if anyone chooses to do so.
Joel Russell
25 Kensington Ave.
