Berlin Planning Commission needs to tread lightly

The Berlin Planning Commission might think it is looking out for the community by blocking the development of a Microtel Inn on Route 113, but its continued exercise of authority it doesn’t have risks placing the town in legal jeopardy.

Obviously, the commission doesn’t want Microtel or probably any other motel or hotel on this patch of ground near the intersection of Route 113 and Franklin Avenue. That, however, is not the planning commission’s call to make.

Consequently, the commission is trying to delay or avoid having to make a site plan decision on this project by insisting that Microtel first meet a non-existent standard.

It’s reasoning is apparent: should commission members review and reject an applicant’s site plan simply because it doesn’t coincide with their personal tastes, the mayor and Town Council could and should reverse that finding — if the project complies with the zoning code.

That’s the essence of the problem and where the legal issue becomes apparent. Berlin’s zoning code contains no language that specifies how a building might express an intangible such as charm, image or spirit.

Consequently, by insisting that Microtel guess what its members are thinking, the commission has sent this applicant on a chase without end. That can get expensive … until this or some other applicant has had enough and sues the town for a fair hearing.

Maybe Microtel, having had enough of this frustration, will pack its bags and go away, allowing the commission to argue that the end justifies the means. But one of these days some well-financed entity is going to call the commission’s bluff and the town will be on the hook for the legal expenses.

To avoid that possibility, the commission needs to cool its jets until the mayor and council can give it real architectural guidelines that applicants can follow and the commission can enforce.

Until that happens, the commission is asking for legal trouble by demanding that applicants draw up some “I’ll-know-it-when-see-it” manifestation of the imperceivable.