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.