Joel Russell addresses the planning board and about 135 attendees at the July 19, 2007 planning board public hearing on the Hilton Garden Inn.
To the Northampton Planning Board:
Thank you for your patience in listening to so much public comment last night. As you observed, the public is justifiably upset that a badly designed project appears to be being forced upon the City. I think that there are two issues that require further clarification, and one that needs to be raised for the first time. I saw a lot of confusion about the first two issues, and no one has yet raised the third issue.
- The Planning Board’s right to deny a site plan application. My previous communications to the Board have tried to explain the limited circumstances under which the Board may legally deny a site plan application. The Hilton Garden Inn appears to be such a circumstance, given the impact of this oversized building on its neighbors. If the applicant does not make further modifications that satisfy the standards for site plan review, the Planning Board should deny site plan approval on the basis that the application does not meet the zoning standards relating to the protection of light, air and views, and the creation of a harmonious relationship of structures and open spaces with existing buildings and other community assets. There appear to be no conditions that can legally be imposed by the Board that would enable these standards to be met. In the case of Castle Hill Apartments Limited Partnership v. Planning Board of Holyoke, 65 Mass. App. Ct. 840 (2006), a case extensively relied upon in Attorney Mark Bobrowski’s letter, the court said: “Site plan review, however, is not without some teeth?In some cases, the site plan, although proper in form, may be so intrusive on the interests of the public in one regulated aspect or another that rejection by the board would be tenable. This would typically be a case in which, despite best efforts, no form of reasonable conditions could be devised to satisfy the problem with the plan?" This application presents a situation in which “no form of reasonable conditions could be devised to satisfy the problem with the plan,” and rejection would be appropriate and defensible. In addition, denying this site plan does not constitute a denial of the use, as suggested by the City Planner; rather, it is a denial of this particular building layout for the use. A hotel may still be built on the site, pursuant to the approved special permit, but it must comply with the site plan requirements of the zoning.
- Appropriate setbacks. The Planning Board finds itself in a legal strait-jacket as a result of the improper granting of the special permit and its legal inability to require larger setbacks. Technically, the Board should simply reject the site plan application or, if the applicant resubmits, review the new plan and make a new determination under the standards of the zoning ordinance. However, the question keeps coming up as to what are adequate setbacks, although the Planning Board has been advised that it is without power to impose these. I noticed the applicant did not seem as interested in this question as the Board, because he stated that the only way he can build the building is on the proposed footprint, for which he wants the Board to provide reassurance. I do not blame him for wanting this reassurance, and I think that the Board, in fairness to the applicant, should tell him where he stands once you have completed a careful analysis.
As an urban planner, I can tell you that the setback issue is not simple, and the Board should have an expert in urban design advising it. There is an important difference between the related fields of urban planning, architecture, and urban design, which lies at the intersection of the planning and architecture. The City has urban planners and an architecture committee; it lacks the urban design expertise it needs to understand the issue of appropriate setbacks for infill. Some of the variables that affect the determination of appropriate setbacks include the height of the proposed building, the distance between the building and neighboring buildings, the orientation of the buildings toward the sun, and the use and design of both the proposed building and existing buildings. There are maximum and minimum acceptable ratios between the height of structures and the horizontal distances between them that are necessary for shaping space so that spaces between structures are properly enclosed without feeling closed-in. These ratios are also affected by the design of the building. For example, two walls with windows facing each other do not require as much separation as a wall with windows facing a blank wall, which is a condition generally to be avoided at all costs. On the other hand, two blank side walls adjoining one another (as is typical on Main Street), are a situation where a zero setback is perfectly acceptable. The hotel plan shows essentially blank walls on both sides, which is simply unacceptable given its proximity to neighboring buildings with windows. The fact that the proposed hotel has blank walls on both sides appears to be the result of its off-the-shelf design intended to meet the specifications of an international hotel chain. And the fact that this chain has certain corporate-driven design requirements does not mean that our City has to accept poor design practices, which are typical of suburban strip conditions rather than of quality urban infill. The design of the west fa ade of the garage, which has a pattern of openings that simulate windows, should be replicated in the east and south facades to give this building a more dignified appearance to its neighbors and the public. I realize that this is a matter for the Central Business Architecture Committee, but as I suggested above, the issues of setback and design are closely related.
With windows in the side facades of the hotel, assuming a 2:1 height to horizontal separation distance ratio, a building that rises 75 feet from the parking lot level would need to have a minimum of nearly 40 feet horizontal separation from its neighboring buildings. This can be tested by looking at the distance between the front facades of buildings that face each other across what we all consider to be “good” side streets in the downtown, such as Centre Street, Strong Avenue (which got much better when the infill condos were built), or Crafts Avenue. It is not the street width that is the determinant of horizontal distance here, but the distance between the fronts of the buildings, which means that the entire street cross-section, including sidewalks, needs to be taken into account in measuring horizontal distances. Using “good streets” is a better standard of comparison than “bad alleys,” especially where the buildings on either side include an important historic site and a high density residential building in which some units derive light and air from only one side. However, the problem with looking for examples of comparable situations in downtown is that there are no buildings in the downtown that are as tall from ground level as the proposed hotel is from the parking lot level of this site. Given the height of the building above the parking lot grade, whatever horizontal distances we observe on existing streets should be considered a bare minimum.
Some members of the Planning Board seem to really want a setback number here, so I would have to say, as a preliminary estimate, that there should be a minimum of 40 feet of separation between the hotel and both the New South Street apartments and the historic Roundhouse Building, but only if the hotel puts windows in its side elevations. Without windows, these dimensions should be at least doubled, and the harsh effect of the blank walls should be softened with a combination of landscaping and exterior ornamentation to mitigate the drabness of these blank walls facing public spaces. Again, I would reiterate that the Board should have a highly regarded urban design consultant advising it, and I can recommend names if the Board so desires. With such advice, I think that the Board’s decision, whichever way it goes, will be far more defensible. Without such advice, I think the Board would be more vulnerable to a legal challenge.
3. Provision of legal advice by a non-lawyer. Finally, there is a third issue that needs to be mentioned, and that is the practice of having the City Planner provide legal advice to the Planning Board. As an attorney, I will tell you that this is not appropriate. Wayne Feiden is knowledgeable about planning and certain aspects of the law, but he is not an attorney, and his advice shows this. At several points in the meeting, I saw that Planning Board members felt understandably confused because they were not clear about the law. They turned to Mr. Feiden for advice, and he frequently gave it. In particular, he has been advising the Board about what it can and cannot do under its site plan review authority. He has essentially told you that you are not free to turn down a site plan application, which is just not true as a matter of law. The two attorneys in the front row, Fred Fierst and I, both said that. As I have said above, there is a tough standard a Planning Board must meet, but it is not without power to reject a site plan application if that application does not and cannot satisfy the zoning criteria for site plan approval.
I work with Towns a fraction of the size of Northampton who routinely have legal counsel present at Planning Board meetings to offer advice as needed. Northampton’s Planning Board should have a competent land use attorney in attendance at its meetings to provide legal advice and help the Board to avoid mistakes. The crucial mistake of granting a special permit without adequate site plan review, which is part of what got us into this mess, could have been avoided if a competent attorney had been reading and interpreting the code for the Board. I was apparently the first person to point out that the special permit was granted in violation of Northampton’s Zoning Ordinance, because no one in City government was aware of the provisions in Section 11 that required this. Requesting an opinion from outside legal counsel seems to be a measure taken as a last resort, only when the City Planner’s opinion has been seriously questioned. That is no substitute for having the attorney routinely on hand and available to deal with the subtleties of issues that arise in the course of a meeting. The Planning Board can avoid painful mistakes if it adopts the common practice of having its counsel present at meetings, particularly when issues known to be complex and/or controversial are on the agenda.
Thank you for your consideration of these three points. I hope that they shed light on this situation, help point to a solution to this difficult controversy, and enable you to avoid similar mistakes in the future.
Sincerely yours,
Joel Russell, Concerned Citizen
Land Use Attorney and Urban Planning Consultant
