SHEFFIELD -- The public hearing to determine whether a building permit to Dollar General should be rescinded on Thursday evening was stopped short after lawyers stated a town committee didn't have the authority to make such a decision.
The Zoning Bylaw Review Committee hosted a well-attended public hearing to act on a Planning Board appeal to rescind the building permit for a Dollar General retail store after it allegedly was allowed to bypass the normal routine review by the building inspector.
Lawyers representing the town and building developer Primex Corp. both stated the Zoning Bylaw Review Committee could only rule on issues impacting zoning.
Representing Primex, attorney Kathleen McCormick, of McCormick Murtagh and Marcus in Great Barrington, said there was no complaint related to zoning in the Planning Board appeal.
McCormick appeared to threaten the town with possible litigation.
"I am asking you to close the hearing ... because you have no jurisdiction," McCormick said. "If there is no legal basis for the appeal and this appeal continues to draw out, then my client may have to pursue other action."
An appeal of the building permit would have to be submitted to the state Board of Building Regulations and Standards within 45 days of the permit being issued. The building permit was issued on March 6, so no appeal can be made.
The Planning Board's appeal focuses exclusively on its claim that Building Commissioner Thomas Carmody, who grants building permits, approved the permit in less than 24 hours so the project wouldn't encounter the prospect of new zoning bylaw proposals.
Sheffield's town counsel, Joel Bard of Kopelman & Paige P.C. in Boston, stated Carmody works for the Board of Selectmen. Bard did not explicitly state that Carmody did not act inappropriately, but also stated the building inspector is provided the right to make judgment outside the purview of boards.
"That is an issue of the Board of Selectmen who employs the building inspector," Bard said.
"Our clear opinion is the Zoning Board has no jurisdiction to look at these issues of process," he said. "I am sorry to disappoint you who are taxpayers, but this is not the role of the Zoning Board."
Following the results of the recent annual town meeting, there were questions what Thursday's hearing would even accomplish. Two articles proposed by the Planning Board would have affected commercial development. One of the articles that failed would have provided the Planning Board more special permit approval of various commercial uses in town.
At the start of the meeting, Committee Chairman Bart Elsbach addressed the crowd and said the meeting was strictly about whether the building permit should be rescinded.
Following the advice from the attorneys, Planning Board member Peter Cherneff said a possible zoning bylaw violation could occur if the "retail establishment" sells milk on the premise. McCormick, representing Primex, said a sale would have to take place for a violation to occur.
Elsbach questioned Carmody whether the building was compliant with parking requirements. He said there are only 24 parking spots available.
Carmody the plans submitted to town are complaint with the building code.