Cozy Hearth in legal limbo
After nearly three years of legal struggle with Edgartown's zoning board of appeals (ZBA), the Cozy Hearth Community Corporation (CHCC) recently won the second round, this time in court. The good news led Cozy Hearth's developer to hope that, having won both the first and second of two ZBA appeals, perhaps the battle would end over the subdivision plan for land south of the Edgartown-West Tisbury Road.
The April 13 decision by the Dukes County Superior Court upheld an April 2008 ruling by the Massachusetts Housing Appeals Committee (HAC). The HAC decision had overturned the Edgartown ZBA's 2006 decision to require Cozy Hearth to scale back its proposed affordable housing project from 11 to nine units, something the developer said could not be economically done.
But, the victory for the group of Cozy Hearth neighbors and friends who are part of the affordable housing effort was short-lived, however, as the Edgartown ZBA, with the support of the town's selectmen, filed notice on May 14 of a further appeal.
CHCC chairman William (Bill) Bennett of Chilmark said last week he is exhausted by the delay and drained by the expense of carrying the project for the past seven years. "They get three appeals, and this is the third one. It could take two years," Mr. Bennett said this week. "We can't afford to do this anymore. I've already decided that I'm not going to spend any more money on legal fees."
Appeal of an appeal
The round of appeals began after the Edgartown ZBA's last Cozy Hearth hearing in May 2006. The project had received Martha's Vineyard Commission approval in 2005, before beginning its journey through the ZBA process. During the ZBA's deliberations, board member Richard Colter suggested that approving nine houses would shift the burden of proof to the Cozy Hearth group to prove whether the reduced number made the project uneconomic, and then the housing appeals committee would make the decision. The ZBA voted to approve nine houses.
In Cozy Hearth's appeal to the HAC, Mr. Bennett argued that reducing the number of houses would increase the cost of each unit and make each unit unaffordable for the people he was trying to help in this unusual collaboration among friends.
The HAC's 2008 decision set aside the Edgartown ZBA's decision and approved the original 11-unit plan, with several conditions, such as building a cistern and a road turnout to address fire safety concerns.
The Edgartown ZBA subsequently filed a fresh appeal, seeking judicial review of the HAC decision, to determine if, for example, the agency's decision was based on an error of law or on unlawful procedure, or unwarranted by facts found by the agency and supported by substantial evidence.
In his decision, signed April 13, Dukes County Superior Court Justice John C. Cratsley rejected the ZBA argument and affirmed the HAC's findings.
Asked about Edgartown's decision to pursue that second appeal on behalf of the ZBA, Art Smadbeck, chairman of the Edgartown selectmen, said that although he could not recall the details, "When the ZBA fights a case, they do come to the selectmen, and it would be a highly unusual circumstance for the selectmen to say no."
Despite several requests from The Times over the past three weeks, the Edgartown town administrator's office has been unable as yet to get a figure from the law offices of Reynolds, Rappaport, and Kaplan, which provides the town's legal services, for the cost of legal representation in the Cozy Hearth appeals.
Moving on
Throughout Cozy Hearth's history, the project attracted opposition from some of the abutters off Watcha Path and Oyster-Watcha Road. In public hearings, several mentioned concerns about increased traffic and the change in the area's zoning from one home per three acres. In the Cozy Hearth plan, 11 dwellings are clustered. Last September, Edgartown town counsel Ron Rappaport told a Boston Globe reporter the fight against Cozy Hearth is "about density, density, density."
Unlike other affordable housing developments built in Island towns using thousands of taxpayer dollars, Cozy Hearth is unique in that it was to be a self-funded initiative, proposed by Mr. Bennett as an individual, not a developer. He and his family would be among the residents of the development.
In 2002, Mr. Bennett and some of his employees, friends, and family members pooled resources to purchase three parcels totaling almost 11 acres off Watcha Path to build their own affordable housing. The mortgage payments on the land cost CHCC $6,000 a month, Mr. Bennett said. "As far as an affordable housing project goes, it's not anywhere near affordable now," he added.
After the project's review and approval by the Martha's Vineyard Commission in 2005, Mr. Bennett said some of the MVC conditions, such as denitrification systems and composting toilets, added $27,000 to the cost of each house. In 2006, he estimated that the cost of appealing the ZBA decision could add another $8,000 to each unit, and permitting costs another $40,000.
"The people that have been in the group have either moved on or want their money back - it's been very hard for them, because their money has been tied up all this time," Mr. Bennett said. As a result, two of the original Cozy Hearth members, who are now trying to get homes built elsewhere, are strapped for cash, he added.
The land is on the market now as three parcels. The larger four and a half acre parcel is priced at about $600,000, and the other two parcels at around $500,000 each.
Mr. Bennett said he hopes the Cozy Hearth members will get their money back, although he estimates the land's market value loss at about 20 percent.
"And the thing is, I did it for my employees, and they're all gone," Mr. Bennett said. "It ended up being that most of the people on my list now are from off-Island, because nobody else could afford it. That's the irony of it: the people who needed it are long gone."
Mr. Bennett said he has talked to a few interested parties. "Money's always the issue," he said. "Edgartown okayed nine lots. Another group could agree to do less than eleven lots and wouldn't have to fight anybody."
In a phone call June 12, Marcia Cini, Cozy Hearth's attorney, insisted that Mr. Bennett continues to explore options. "Because affordable housing is such an important issue, he's going to see if something can be salvaged, even if it means a reduction in the number of units," she said.
The Island's affordable housing advocates kept a close watch on Cozy Hearth's progress over the past several years, and many spoke in its favor at public hearings. Island Affordable Housing executive director Philippe Jordi said last week that in light of towns having to slash their budgets and funding because of the recession, affordable housing projects face even more of a challenge.
Although Cozy Hearth was not a for-profit venture, Mr. Jordi said other nonprofit affordable housing organizations have the advantage of using valuable resources such as pro bono legal services.
Last week, summing up his experience with Cozy Hearth, Mr. Bennett said, "All around, it was probably a naïve attempt, but we gave it our best shot, no doubt about it. We didn't hold back on any fronts."
