Praying for a permit: After costly Dalton church renovation, owners denied occupancy
DALTON — The beds are made, but they can't be slept in.
Two years after securing a building permit to convert the former Grace Episcopal Church in Dalton into their new home, and investing more than half a million dollars, a local family lives a nomadic life. Dalton's building official won't grant them an occupancy permit.
Daytimes, Cris and Caroline Irsfeld can be found in what they hoped by now would be their new home, the 7,000-square-foot former wood-shingled, Gothic revival church and Guild Hall at 785 Main St.
This town landmark, tucked behind a black metal fence and armored with stained glass, still looks to passersby like a place of belief.
But the Irsfelds can't yet call it home — and say they've lost faith in local government. They are overnighting in their old house in Stockbridge, now empty and on the market, and hoping their prayers for relief to a state appeals board are granted at a Thursday hearing.
"The last 90 days have been an absolute nightmare for me," Cris Irsfeld said Tuesday, sitting inside the renovated hall that began life in 1869 as the Center School. "It's affecting my health."
Today, Irsfeld, 73, will make a case to the Board of Building Regulations and Standards that he and his wife should be granted the occupancy permit that Building Commissioner Brian Duval denied after coming this spring for what the couple expected to be a routine walk-through.
If the state appeals board decision goes against them, they could be subject to immediate fines and orders that their contractor open finished walls to improve insulation. The board, part of the state's Division of Professional Licensure in the Office of Public Safety and Inspections, could make its decision on the spot.
Duval said the renovated property fails to meet state rules on energy conservation, despite the fact that his predecessor, Don R. Torrico, granted a building permit. For that document, Torrico upheld the Irsfelds' claim that the project qualified for an exemption from the energy rules because of the historic nature of the property.
But to secure that exemption, a property either must be listed on a state or national historic register, be designed as historic by a state or locality or — and this is the opening for the Irsfelds — be deemed eligible "with an opinion of certification."
While the vice chairwoman of the town's Historical Commission has praised the project, that body has not yet taken the official step of declaring the project eligible for the waiver — but is expected to do so soon.
Duval conceded this week that he believes the property is eligible to be considered historic, if proper steps are taken to confirm that.
In a July 3 email to the Select Board, Louisa Horth wrote that the Historical Commission had met with the Irsfelds and that it applauds steps taken to save the property's character.
"He has endeavored to preserve original components of the buildings and should be fully encouraged to continue preserving original architecture where possible," she wrote of Irsfeld. "In our opinion all efforts by Dalton officials should be made to assist him in his restoration and preservation efforts."
In terms of history, the old Guild Hall, the former two-room school that makes up the west side of the building, holds the longest history at 785 Main St.
Records with the Massachusetts Historical Commission note the building's "Italianate style," with features like "an oculus window, paired brackets and segmental hooded window openings." An oculus window is a round opening in a wall.
But activity inside the church itself goes back 126 years. The church held its first service in the new building in 1893, according to Horth. The pastor who helped lay the cornerstone, Phillips Brooks, wrote the lyrics of the famous Christmas carol "Oh Little Town of Bethlehem."
In May, the couple's contractor, Dale Dedrick, sought an opinion from Berkshire Engineering. Nicholas Andersen of that firm said in an email to Dedrick that, under state law, once properties are identified as historic, alterations do not have to comply with energy conservation requirements in what's known as the "stretch code."
This week, after earlier meetings with town officials, the couple told their story to the Select Board. Members of that panel sided with the Irsfelds, pressed Duval for an explanation and voted to prepare a letter of support to the appeals board.
But that was all its members could do, after being instructed by the town's lawyer that, while a Select Board appoints the building commissioner, the panel cannot micromanage his decisions.
Cris Irsfeld told the board that before buying the former church, he checked with Torrico to determine whether the renovation would have to comply with the stretch code.
The church has 40 stained-glass windows that pivot on a center point to open, rather than sliding up and down. They cannot be readily equipped with storm windows. Irsfeld had done another project that required adherence to the stretch code, he says, and felt that without an exemption for Grace Episcopal, he would not tackle it.
"I asked if I had to do this and was told no," Irsfeld told the board Monday, referring to the stretch code. "You couldn't put a storm window on either side of that for any money in the world. I can't make that house compliant."
What's more, Irsfeld said he had promised the Zoning Board of Appeals and the Historical Commission that he would retain the look of the church.
"I don't know what to do. I don't know where to go," he told officials. "I trusted Dalton. Anybody with any common sense knows this is wrong."
In a letter to Town Manager Kenneth Walto, Irsfeld also had questioned Duval's decision to change the building permit application after the fact by unchecking the box related to the stretch code that says "not applicable."
"I have done what my permit required. I have always dealt in good faith with the town of Dalton, and my wish is that they return the favor," he told Walto.
Members of the board expressed sympathy Monday for the couple's plight, but noted that, on the advice of counsel, their role is limited.
"Our hands are kind of tied on that," said Robert W. Bishop Jr., the board's chairman.
But he and others said that once the town makes a commitment — in this case by granting the building permit on the basis of the project being exempt from the stretch code — it should stand by its word.
"When a building inspector gives a permit, we should honor that," Bishop said. "I don't know why they shouldn't get in their house. I'm totally frustrated about it."
Member Joe Diver praised the quality of the renovation, calling it "beautiful."
"Projects like this should be encouraged," Diver said. "I'm supportive of building permits that are decided, and you move forward."
"It does seem unjust," said Edward Holub, a board member.
When pressed to defend his actions, Duval said that just because a "not applicable" box was ticked on the building permit application, as it relates to the stretch code, that doesn't grant the project an exemption.
"Energy compliance is an important thing for the state," he told the board. "The code is the code."
But Diver countered that the Irsfelds were granted a building permit based on an application that said the energy provisions would not apply. He proposed that the board write to the appeals board urging it to grant the Irsfelds' request to overturn Duval's denial of an occupancy permit. The board voted unanimously to draft that letter, and Walto and Bishop did so Tuesday.
Joel B. Bard of KP Law, the town's law firm, said that while a current building official can correct a mistake done by a predecessor, he's not convinced that an error was made by Torrico in granting the 2017 building permit that included the exemption on energy measures.
"It is not evident here that there was a clear error in the prior [building inspector's] ruling," Bard wrote in a Sunday email to Walto. "Rather, it is a question of judgment and exercise of discretion by the two officials."
Torrico is standing by his decision to grant the permit. In a May 20 letter to the appeals board, Torrico writes that he and Don Fitzgerald, the town's alternate building commissioner at the time, both reviewed the application and felt that, given the historic nature of the property, the project should be exempt — and for that reason not subject to a review by Home Energy Rating System surveyor on its compliance with the stretch code.
"The order of Commissioner [Duval] appears excessive," Torrico wrote. Duval counters that local building officials lack the authority to exempt compliance with energy surveyors, known as "HERS raters."
Bard acknowledges that the town's turnabout might not play well in future litigation, which is all but assured if the couple loses its appeal and can't get help through a special designation as a historic property.
If the case comes before a court, Bard wrote, "a judge might take a broader view of this history and could be more sympathetic to the homeowners' situation."
So far, Duval is holding firm with his denial. But he told officials this week that he awaits the outcome of Thursday's appeal. "If they come back and say it, fine," he said of the board.
Meantime, the Irsfelds are coming up on a quarterly tax payment. Cris Irsfeld said that if they lose their appeal and can't work out a solution, he will sell the property he bought for $120,000 and improved with work he said went "north of $500,000."
"I have to keep paying taxes on a building I can't use," he said.
Larry Parnass can be reached at email@example.com, at @larryparnass on Twitter and 413-496-6214.
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