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HomeMy WebLinkAboutPublic Comment from Herschler in Support of BC6/9/2026 Dear Chair Dewey and Members of the Zoning Board of Appeals, I submit this written comment in support of the building permit for 460 West Main Street and in opposition to the appeal. The appeal asks the Board to revoke an already issued building permit for the relocation of St. Joseph’s House from Winter Street to 460 West Main Street. That request should be treated with the seriousness it deserves. The appellants are not asking for further conversation, better communication, or stronger operational planning. They are asking the Board to undo a permit. That requires a legal defect in the Building Commissioner’s decision, the permit record, the proposed use, or the applicable zoning law. The public campaign around this appeal has not been disciplined in that way. It has focused on schools, police-call categories, nearby businesses, property values, HAC compensation, County ARPA funding, social-media accusations, and generalized fear of unhoused people. Those subjects may generate opposition. They do not, without more, establish that the permit was wrongly issued. The legal question starts with the Building Commissioner’s determination. The Commissioner reviewed submissions from Housing Assistance Corporation, Asclepius Corporation, and Catholic Charities of the Diocese of Fall River, together with correspondence involving Town Counsel and the Massachusetts Attorney General’s Office. The Commissioner concluded that the proposed emergency overnight shelter at 460 West Main Street, as described in the submitted materials, would be operated by a nonprofit religious organization as part of its religious ministry, and that providing shelter to persons in need constitutes a religiously significant activity within that organization’s faith and mission. On that basis, the Commissioner found the use sufficient, for zoning purposes, to qualify as a religious use under G.L. c. 40A, § 3 and as an exempt use under § 240-8(A)(3) of the Barnstable Zoning Ordinance. That determination was not unlimited. The Commissioner expressly preserved the Town’s authority to enforce applicable health, safety, building, environmental, and other reasonable regulations, and limited the determination to the use as described in the submitted materials. That limitation gives the appellants a proper path if they have one: identify a specific legal defect, a material departure from the described use, or a specific reasonable regulation that was improperly ignored. It does not allow the appeal to become a referendum on whether some neighbors dislike the shelter population. The strongest possible argument against the permit would be a Dover Amendment argument. A homeless shelter is not automatically a religious use in every case, and the Commissioner recognized that. The question is whether this proposed use, by this operator, on this record, qualifies for protection. The record before the Commissioner supports the determination. Catholic Charities submitted evidence that its mission is rooted in Catholic teaching, that sheltering the homeless is a Corporal Work of Mercy, that the shelter and day program are ministries through which Catholic Charities and the Diocese give lived expression to sincerely held religious beliefs, and that parishioners, clergy, and Catholic Appeal funding support the shelter and day-program work. The Attorney General’s Office also addressed the key case opponents would likely rely on, Needham Pastoral Counseling Center. The Attorney General distinguished that case on the ground that the proposed shelter is not a secular counseling or social-service facility with an incidental religious component. The Attorney General’s position was that, for Catholic Charities, sheltering the homeless is the direct institutional expression of a core religious ministry and the dominant religious purpose of the proposed use. The appellants may disagree with that conclusion. Disagreement is not enough. They need to show the Commissioner’s determination was legally wrong on the record before him. They need to overcome sworn statements, organizational documents, the Catholic Charities mission materials, the Commissioner’s findings, and the Attorney General’s legal analysis. I have not seen the public opposition do that. A second potentially serious argument would be that the proposed use has materially changed from what the Commissioner approved. The Commissioner’s determination is limited to the submitted use, and it states that a material change in the nature, scale, or character of the use may require further review. If the appellants had evidence that the permit now authorizes something materially different from the 50-person shelter and day- program use described in the Dover materials, that would be a real argument. But the public campaign has largely relied on fear and insinuation rather than a clean showing that the permitted use is materially different from the use reviewed. A third potentially serious argument would be that a specific reasonable regulation concerning health, safety, site layout, building code, environmental regulation, parking, or dimensional issues was unlawfully bypassed. The Dover Amendment does not place religious uses beyond all municipal regulation. The statute allows reasonable regulations concerning matters such as bulk, height, yard sizes, lot area, setbacks, open space, parking, and building coverage, provided those regulations are not used to prohibit, regulate, or restrict the protected religious use beyond what the law permits. The Commissioner’s determination acknowledged the Town’s continuing authority in these areas. Again, that gives the appellants a path if they have one. They must identify the regulation, explain how it applies to this Dover-protected use, and show that the permit was issued in legal error. Broad references to safety, schools, businesses, and neighborhood discomfort do not substitute for that analysis. The school argument does not identify a legal defect in the permit. Opponents have emphasized the proximity of 460 West Main Street to Hyannis West Elementary. Proximity alone does not establish that the Commissioner misapplied the Dover Amendment, misread the zoning ordinance, or issued an unlawful permit. The current Winter Street shelter already operates near schools and youth-serving locations. HAC has publicly stated that the existing shelter has operated for years without known incidents involving students or school operations. The Board should not treat fear about a map as a legal basis to revoke a permit. The police-call argument has the same problem. Opponents have circulated broad “homeless-related” police-call categories and monthly incident totals. Those materials do not show where each call occurred, whether each call involved St. Joseph’s House, whether a shelter guest was involved, whether the shelter caused the incident, whether any finding resulted, or whether relocation to 460 West Main Street would make the condition worse. A generalized public-safety narrative does not prove a zoning defect. If anything, the operational facts point toward upholding the permit. St. Joseph’s House already serves people in Hyannis. The relocation keeps the shelter in Hyannis, keeps the capacity at 50 individuals, and moves the same essential service into a more accessible and functional building. The proposed use allows better daily structure, more room for services, day programming, case management, and support for guests moving toward stability. Blocking the permit would keep the shelter in a worse building while opponents continue to complain that the current system is strained. The traffic argument should also be tied to actual use. The building was previously used as office space, which generally produces employee trips, visitor trips, deliveries, and routine daytime traffic. The proposed shelter use does not increase capacity beyond 50 individuals. Unless the appellants can show a specific traffic-related legal defect in the permit, traffic should not become a pretext for revoking a protected use. Nearby business concerns deserve communication, clear contact points, and operational responsiveness. They do not give private businesses a veto over a lawful permit. Property- value anxiety is even farther from the legal standard. The Board’s role is not to decide whether some neighbors believe a shelter population is bad for business or property values. The Board’s role is to decide whether the permit was properly issued. The “somewhere else” argument also fails as a permit appeal. Difficult uses are always easier to support when they remain theoretical. St. Joseph’s House already serves Hyannis. This relocation keeps it in Hyannis and moves it into a better building. The Board has this permit and this record in front of it. It should not revoke an issued permit based on an undefined alternative site that is not before the Board and may never materialize. The attacks on HAC compensation, ARPA funding, and nonprofit governance are not zoning arguments. People may raise those issues in other forums. They do not show that the Commissioner misapplied G.L. c. 40A, § 3. They do not show that § 240-8(A)(3) was misapplied. They do not show that the permit was legally defective. I also ask the Board to understand the public atmosphere around this appeal. The record shows that opposition to the relocation was being shaped long before the current hearing push. In January 2025, Eric Schwaab was already asking about the shelter relocation, was told the location was 460 West Main Street, was told to speak with Councilor Betty Ludtke because it was in her precinct, responded that he had already spoken with her, and wrote that the story should have been leaked and that he would “try to make a fuss.” Within days, he circulated a draft public narrative calling the relocation a “mystery move,” emphasizing the proximity to Hyannis West Elementary, Par-Tee Freeze, and Barnstable Brewing, attacking HAC’s funding as “extravagance,” and including the “$450 heels” line about HAC’s CEO. I do not offer that history as a separate legal basis for the Board’s decision. The Board should decide the appeal on the permit, the zoning record, and the law. I include it because the Board should be careful not to confuse organized pressure with legal error. A campaign can be loud, emotional, and politically connected without being correct about the permit. The opposition also includes Councilor Ludtke’s acknowledged support for NANN-related advocacy. Materials in the record state that she confirmed NANN was “the very group” she was helping, that many participants were constituents or business owners in her precinct, and that she was “happy to help them advocate.” Residents and elected officials have rights to advocate. Advocacy does not change the legal standard. The appellants still need to show a defect in the permit. The people served by St. Joseph’s House are unlikely to have the same ability to fill the room, coordinate comments, run websites, post daily attacks, or make their absence look like consent. Many will not be present at all. Their absence should not make their interests invisible. The public interest includes their safety, dignity, stability, access to services, and path toward housing. The Board should deny the appeal. The Commissioner applied the Dover Amendment to a detailed record, recognized the Town’s continuing authority over reasonable health, safety, building, environmental, and site-related regulations, and limited the determination to the use as submitted. The appellants have the burden, practically and legally, to identify a real error in that decision. Generalized fear of unhoused people does not meet it. Police-call categories do not meet it. School proximity without an operating-history problem does not meet it. Business discomfort, property-value anxiety, HAC resentment, and “somewhere else” do not meet it. Barnstable can uphold this permit and still require strong operations, communication, safety planning, neighborhood coordination, and oversight. Those are compatible. What Barnstable should not do is use a permit appeal to keep an existing shelter in a worse building because a well-organized opposition campaign made vulnerable people sound like a land-use problem. Please deny the appeal and uphold the building permit for 460 West Main Street. Respectfully submitted, Nathan Herschler