With barely a week remaining until Town Meeting, the question of what to do about the renovation of Town Hall is now in the hands of voters.
Last week, the three-member Zoning Board of Appeals (ZBA) denied the town’s application for the two variances and special permit it needs to begin construction. Their vote was unanimous. But on April 6, voters will be given yet another chance to push the project forward by overturning the bylaw that led to the ZBA hearing in the first place.
A setback
Thursday’s decision is clearly a setback for the town and its Town Hall Building Committee, whose four active members were appointed by the Board of Selectmen last July and who hoped to issue bid documents and begin construction this spring. The Selectmen, the Finance Committee and Town Meeting approved the project a year ago. And the Community Preservation Committee has earmarked $1,000,000 of its trust fund money to help pay interest on the nearly $4 million that will be borrowed to do the work.
The story of the project thus far reads like the popular nursery rhyme “This is the house that Jack built.” As with any building project, the Town Hall renovation requires a building permit, one that is certain to be denied if it violates one of Harvard’s protective bylaws. When a zoning bylaw is violated, the property owner must seek a variance—permission to ignore the bylaw—from the zoning board. And if the project involves changes to an “existing non-conforming” structure, like Town Hall, a so-called special permit is also necessary. The catch is that special permits for municipal buildings can only be granted if the owner has obtained the needed variances.
To obtain a variance, an extremely rare outcome, the applicant must satisfy five criteria, two of which are proof that denial would be a “substantial hardship” or that the “unique conditions” of the site make any other design impossible.
In January, the building committee asked the ZBA to grant two variances, having determined six months earlier that a planned addition would be closer to Ayer Road and higher than permitted. The committee also asked for a special permit.
A self-inflicted conundrum
In their deliberations last Thursday, Chairman Christopher Tracey and members Stephen Moeser and Robert Capobianco were unanimous in concluding that the building committee, represented by Town Counsel Mark Lanza, had failed to show that a denial of the variances would be a special hardship to the town and was deserving of an exception. But Tracey, in his remarks, also took notice that the conundrum was one the town had made for itself.
Virtually every structure on or near Harvard’s Town Common—municipal buildings, churches and homes—is “non-conforming,” having been constructed well before the town began passing bylaws in the ’60s. Like some homes, Town Hall is jammed into the corner of a triangular lot bisected by Ayer Road, and between a church, former fire station, and a driveway used by the fire department. Although the existing structure exceeds current bylaw restrictions to a greater degree that its proposed addition, new construction, according to the bylaw, must meet its standards. The irony, the building committee and others have noted, is that while municipal buildings are required to obtain variances, nonconforming one- and two-family homes in the district are not, and they are routinely granted special permits.
The standards for granting a variance in the state of Massachusetts are “very, very high,” ZBA’s counsel Barbara St. Clair advised the board at Thursday’s deliberation. And Harvard’s bylaw, echoing state laws, spells out in detail the criteria that must be met. Failure to meet any one of them, in the eyes of any one member of the ZBA, is sufficient grounds for a denial.
No “substantial hardship”
In their deliberations last week, the three ZBA members focused on whether the town had demonstrated “substantial hardship,” either because any alternative would be more expensive or because the peculiar conditions of the site made conforming design impossible.
At prior hearings, the building committee had presented estimates for two alternative structures that would cost an estimated 16 to 17 percent more, but board members concurred with Tracey’s assessment that for a municipal building to exceed its estimated cost by 15 to 20 percent was not an unusual circumstance.
“Would I be shocked?” asked ZBA member Moeser. “It happens all the time.”
Having dispensed with the case for financial hardship, the board discussed whether soil or other conditions at the Town Hall site made other designs impossible. But having shown that two other conforming designs were, in fact, possible, although not perhaps desirable, the committee gave the ZBA grounds to dismiss that argument as well.
Tracey used the example of his own nonconforming house to make the case that the conditions faced by Town Hall were no different from those faced by homeowners. Moeser and Capobianco agreed.
Once the board had voted to deny the two variances, there was no choice but to deny the special permit as well.
“The right word for me is ‘unfortunate,'” Tracey told his fellow board members. “Common sense says that the people of Harvard have spoken” through the votes of their boards and Town Meeting. “But,” he continued, “this is a request that is looking for forgiveness, rather than permission,” and he urged the town to consider changing the bylaw to exempt Town Hall from its provisions.
It’s a case of “politics trumps facts,” building committee chair Pete Jackson told the Press, after the vote, citing as evidence the thoroughness with which his committee had answered every question posed by the ZBA and the several citizens and officials who submitted written objections.
Why was variance pursued?
Others faulted the decision to take the matter to the ZBA in the first place, an expensive process that required the hiring of two lawyers and an engineering consultant, as well as additional services from the town’s architect, LLB. Selectman Ron Ricci pointed the Press to internal emails that suggest town officials had little confidence the town could obtain the variances it required. “Why then, was this not dropped and the process to amend the bylaw begun in an orderly fashion?” he asked.
But Stu Sklar, an organizer and proponent of the citizen petition to exempt town-center municipal buildings from the bylaw, said he was glad the ZBA had made its decision. “The need to pass the citizen petition is now more compelling than ever,” he said.
The petition appears as Article 42 in the Town Meeting warrant and appears to have broad support, though not in its current form. It will undoubtedly be amended from the floor. The Planning Board in a 2-1 vote has already proposed that the exemption be limited to town-owned buildings only, and at the Selectmen’s meeting this week two members of the board said only Town Hall should be exempted.
“I believe I heard the ZBA endorse a bylaw change for municipal buildings,” said Selectwoman Marie Sobalvarro.
Those of Harvard’s 4,000 active voters who attend Town Meeting next Saturday on April 6 will decide the matter.
