Did Great Barrington developers find a zoning loophole? Town officials say, 'Yes'

Manville Street in Great Barrington, facing east toward Route 7. Developers are planning to build a 47-unit rental apartment complex at the west end of the street, also a dead-end. One neighbor complains that the town left a zoning loophole in its bylaws.

GREAT BARRINGTON — Some are crying "loophole."

Others say objections to the construction of rental apartments here is simply a case of NIMBY, or "not in my backyard."

All was quiet on the zoning front until two developers came along with plans this year for a 47-unit complex at the bottom of dead-end Manville Street. Framework Properties last month received the green light from Town Hall and was issued a special permit for building over an aquifer on this tree-lined residential street off Route 7. Construction is likely to begin in the spring.

The street is topped off by two small-scale multifamily apartment buildings and is nestled between other streets that contain a mix of homes, legal and medical offices, emergency housing, Ward's Nursery and the 66-unit Beech Tree Commons, a rental community near the Fairgrounds Plaza with a Big Y. The Dunkin' Donuts is a five-minute walk away.

The area was rezoned several years ago from "General Business" to "MXD," or "Transitional Mixed Use," in which eight-unit structures are automatically allowed in an entirely residential building project.

But there is a way to exceed that eight-unit limit — a developer can add some commercial space, rendering the project a "mixed-use" development, which then allows for a vast increase in the number of units.

In the case of the Manville Place apartments, it took 978 square feet of commercial space to trigger an explosion of allowable apartments, and a bypass of the special permit process.

Hence, accusations of "loophole" by Manville resident Ivan Kruh, a psychologist.

"When we were in an initial meeting, [the developer's comment was], `We'd love to do this with no commercial at all — our goal is to build a residential complex, but the town won't allow it without building some commercial,'" Kruh said.

Framework developers Ian Rasch and Sam Nickerson said they are adding badly needed housing stock to the town, something even Kruh agrees is lacking. They also said they are building sensitively and hope to improve the neighborhood. And they say they plan never to sell the $15 million complex.

They also say they are adding a commercial site in an area where commercial use is pre-existing.

"More than 50 percent of parcels surrounding Manville are commercial in some way," Nickerson said. "The characterization that this is some sort of idyllic, bucolic, completely untouched woodland area is totally incorrect."

Kruh's position, which has been shared publicly on some occasions by some of his Manville neighbors, is that the three-building complex, with its parking lot and small retail space, will be a catastrophic blow to the character of the neighborhood, which the town's zoning bylaws say must be protected in the mixed-use zone.

"I guess we disagree on the 'current character,'" he said. "Is that any better than putting a strip mall at the end of our street?"

Stopping a Dollar General

But a strip mall, or a big-box store, might have easily made its way into the neighborhood had the town Planning Board not changed the strictly business zone to mixed use.

"The [business zone] is basically a highway commercial zone," said Jonathan Hankin, a longtime Planning Board member. "It's Big Y and Guido's and all the gas stations, so someone could have come in and built a 20,000-square-foot Dollar General store at the end of their street, by right. And so we created that zone after spending a lot of time looking at what was there — and that was reflective of what was there."

Nickerson pointed to this, too, and said he and Rasch cut back a more robust retail plan after listening to the objections of neighbors. Rasch previously has said that the retail likely will be something relatively quiet, like a combined yoga studio and small coffee shop.

"They wanted as little [retail] as possible," Nickerson said. "And we shrunk it down."

Nickerson also said that the "long public process" of Planning Board hearings in recent years was transparent.

"It isn't like that happened in the dead of night — no one showed up at any of those meetings," he said.

But Hankin conceded that perhaps the board did not see this particular "loophole" coming, especially in zoning bylaws created to reduce the effects of commercial activity on a neighborhood, while still allowing for smart development.

"It's unfortunate the way it played out, because it feels like we created a loophole for them, which was not our intent," he said.

Hankin said he and other board members can't always anticipate every possibility.

"You try really hard," he said. "It doesn't always mean you get it right. Writing zoning is not easy."

"It's not what we envisioned," said board member Malcolm Fick, adding that he does worry about creating loopholes, and that, in this case, the developers found one.

Fick said it happened when the board redefined what is considered "mixed use" to include "any commercial" space, no matter how small.

"We went too far — we said 'any commercial' would be good, and that's what [Framework is] doing," he said, noting that he hopes to revisit this issue with the board.

Fick and Hankin said the developers could have left out the commercial, but that would have required a special permit from the Select Board, which Fick said he thought would have been granted. Yet, that is a more rigorous affair than the narrower special permit that Framework was issued for construction in the Water Quality Protection Overlay District, which guards the aquifer.

Rasch countered the loophole argument by saying the company would have had to go through all the same steps to build in any area of town.

But Kruh thinks the special permit process might have been fatal to a project that, he worries, will not only vanquish residents' peace, but chip away at their investments. He said the town should, in the future, take a "middle way" in balancing the need for new housing and the wishes of established residents. Kruh said he can see how, in the "long game," the apartments could become a vibrant extension of downtown. But it's also a waiting game, and not a very pleasant one in the short run.

"It is such a really precious lifestyle on that street," he said. "It's not an issue of 'not in our backyard,' but 'if you're going to do this in our backyard, please be respectful neighbors.'"

Fick said he thinks this is the case. Yet 'respectful' might not be enough.

"I think the people on Manville Street are really fortunate to have a developer that cares what it looks like, but when [the developers] bypassed the special permit by putting [some] commercial on a dead-end street, it made me think that maybe we went overboard."

Heather Bellow can be reached at hbellow@berkshireeagle.com or on Twitter @BE_hbellow and 413-329-6871.