BERLIN — Within the next few weeks, Berlin’s Historic District Commission (HDC) will have to decide if a months’ old case is worth pursuing, especially since pursuit will likely mean the town will end up in court with one of its biggest businesses.
At Monday’s Mayor and Council meeting, Town Attorney Dave Gaskill weighed in on a controversial decision Mayor Gee Williams made regarding the HDC last November.
At the time, Williams chose to instruct the town’s code enforcement officer not to enforce a ruling made by the HDC against the Atlantic Hotel. His interference caused then HDC Chairman Bob McIntosh to resign in protest and led some to question if Williams had overstepped his authority as mayor.
While focus on the decision settled down over the winter, a recent letter issued by the State Attorney General’s Office rekindled the debate when it offered the opinion that Williams did, in fact, go “beyond his powers” when he interceded in the HDC case.
“No one disagrees with that [the letter],” said Gaskill.
However, he did highlight a few clauses in Berlin’s Town Code that might take some pressure off Williams.
Gaskill pointed that, in his interpretation of the code, the HDC itself had the authority to enforce its own ruling independent of whatever the mayor did. His argument hinged on the fact that the code places responsibility of enforcement on the mayor, code enforcement officer, “or” HDC.
“They have the authority to do that [enforce their ruling],” said Gaskill.
McIntosh, an attorney himself, maintained that the HDC did not have that power at the time of his resignation.
Gaskill added that he was surprised the hotel withdrew its appeal from the Board of Zoning Appeals after learning that Williams did not plan on enforcing the commission ruling, since he believes the HDC could have still pushed the issue. However, he admitted that Williams’ assurance that the hotel had nothing more to worry about from the town would go a long way in their defense if the case ever reached court.
Another debatable piece of code that Gaskill mentioned was the need for a minimum number of votes from the HDC to make a ruling valid. Because of absences and conflicts of interest, only three members of the commission actively voted on the hotel case. While that was enough to establish a quorum, the vote was not unanimous, going 2-1 against the hotel.
Gaskill noted that HDC code requires three votes in favor of an action to take it. In his opinion, “denying an application is an action.”
After giving his interpretation of the code, Gaskill recommended that the council write a letter to the HDC requesting if it still wished to see the original ruling, one that would require the hotel to uninstall any vinyl-framed windows in favor of the more historically accurate wood, enforced. If so, Gaskill told the council that it could then demand the hotel comply.
However, he did warn that if the hotel did not bow to the council’s wishes and decided to take the case to court it would have a strong defense. Specifically, the hotel would be able to claim that Williams guaranteed the issue was settled. Additionally, the hotel would be able to bring up the same codes Gaskill had found, such as the question of whether the HDC could have enforced the ruling itself and the validity of a 2-1 vote.
“That’s an issue to be decided in court, if we get there,” Gaskill said.
Councilwoman Paula Lynch asked Gaskill if there was any kind of timetable on when the HDC needed to decide if the case was worth pursuing.
“If they don’t act shortly, they’re probably going to be wasting their time,” said Gaskill.
Williams agreed with Gaskill’s recommendation and asked the attorney to draft a letter from the council to the commission.
“What we’re trying to do here is get a final resolution,” said Williams.
“The ball is in the court right now of the Historic District Commission,” said Lynch.