Edgartown ZBA puts the squeeze on Cozy Hearth

By Janet Hefler - June 1, 2006

The Edgartown Zoning Board of Appeals (ZBA) voted against the 11-house subdivision proposed by the Cozy Hearth affordable housing project last week.

Instead, the board approved only nine houses, a move that Cozy Hearth president Bill Bennett had warned could kill the project by making it unaffordable for the very people it was designed to help.

After the meeting, Mr. Bennett appeared stunned. "That's it - we're done. We can't afford any more," he said. This week he was more optimistic. "At this point, it's been four years. And I'm not going to quit," he vowed. "Now the only place to get justice is the Massachusetts Housing Appeals Committee, and that's where we're going to go."

The Cozy Hearth project already had undergone an exhaustive seven-month review by the Martha's Vineyard Commission (MVC). The commission approved the project last December with a lengthy list of conditions addressing habitat protection, water quality in the surrounding Oyster Pond watershed, and the impact on the neighborhood in terms of traffic, density, and lighting.

The Cozy Hearth project then went back to the ZBA for final approval. This past March, Mr. Bennett, who owns an electrical contracting company, started from square one, making his case all over again before the Edgartown board.

At last week's meeting, Richard Knight pinned his fellow ZBA members down, pressing them to hash out the issues that night and make a decision once and for all. "I find this is a creative solution to provide affordable housing," Mr. Knight told the board. "There are a lot of issues in the neighborhood that need to be addressed. Either we're going to figure out how to make it work or not. I would like to see it work, and address as many of the neighbors' concerns along the way as possible."

The Cozy Hearth project is unusual in that it is a self-funded initiative by Mr. Bennett and some of his employees, friends, and family to build their own affordable housing. In 2002, the group purchased 11 acres off Watcha Path Road in Edgartown in an area zoned for three-acre lots. The plan hinged on subdividing the acreage into 11 one-acre lots for 11 houses under the terms of Chapter 40B, a state statute which helps bypass local zoning restrictions to encourage affordable housing.

Under 40B, 25 percent of the lots must be given to Edgartown for affordable housing, and Cozy Hearth would contribute three homes to be sold by the town through an affordable housing lottery. The remaining 8 lots for homes built by Cozy Hearth members would include five deed-restricted and three unrestricted for resale.

Mr. Bennett had explained to the ZBA that the cost of the affordable houses given to the town will be divided among the Cozy Hearth members. Decreasing the project to nine houses means six Cozy Hearth members would share the economic burden rather than eight.

Rejecting that notion, board member Richard Colter said, "I'm not convinced it's uneconomical if you were to chop two houses off. It's not our determination whether it is economically feasible or not. We're to determine what's best for the neighborhood and what's best for the town."

According to Cozy Hearth attorney Marcia Cini, Massachusetts General Law regarding a comprehensive zoning permit for affordable housing states that the ZBA "must approve the project or approve it with conditions which do not render it 'uneconomic' unless the health and safety of town residents is imperiled, the natural environment is endangered, the proposed housing is seriously deficient, or open space is critically needed."

The only topic raised by board members under any of those criteria was fire safety. Carol Grant thought fire trucks would be unable to turn around in the development, but Mr. Knight, a volunteer firefighter on Chappa- quiddick, assured her otherwise. The board did agree to require the installation of a 10,000-gallon cistern and a turn-around area at the end of the road to address fire safety.

The board also struggled with the fact that Cozy Hearth did not fit the mold of most affordable housing projects. Mr. Knight told them that in order to meet the need for affordable housing there have to be some creative solutions.

Regarding Cozy Hearth, he said, "Let's either make it work or kill it, and not drag it out and waste everyone's time. Let's work down the list of issues from the abutters."

With each issue discussed, the board came up with additional conditions, including a new access road with turnouts graded during construction and after, road association membership for each household, use of organic fertilizers only, and lighting restrictions. The board also decided to ban rentals of the affordable houses and to prohibit home businesses unless approved by the ZBA.

Mr. Colter wanted to tweak the conditions further by requiring that any garages be attached to the houses and that the deed-restricted homes be limited to 2,000 square feet rather than 2,500. Throughout the evening, he expressed his opposition to 11 houses. In discussing what would be considered an acceptable number, Mr. Knight said, "It scares me. We're doing social engineering."

Martin Tomassian responded, "What do you think 40B is? It is social engineering."

As the end of the deliberations neared, Mr. Colter emphasized again that he thought 11 houses were too many. He suggested that approving nine houses would shift the burden of proof as to whether it was uneconomic to the Cozy Hearth group, and then the housing appeals committee would make the decision.

"I think you're trying to shift the blame to the housing authority," Mr. Knight told him. "How long has this project gone on? In a period of four years and the battering they're undergone at the [Martha's Vineyard] Commission, when they say 11 is the minimum, I believe them. I think if we condition it down to eight, we kill the project. I think the decision lies within this board."

Mr. Tomassian agreed. "If you vote for fewer houses, you've essentially denied the application."

Putting the 11-house proposal to a vote, Mr. Knight and Mr. Tomassian voted yes. Although Ms. Grant and Mr. Colter voted no, both commented afterwards they did not want to kill the project.

"I think we just did," Mr. Tomassian told them. He suggested they come up with another number.

Mr. Colter made a motion to approve nine houses.

He, Mr. Tomassian, and Ms. Grant voted yes and Mr. Knight no. "That's it - we can't beat ourselves up any more," Mr. Tomassian concluded.

If a 40B application is rejected at the town level, a developer may turn to the housing appeals committee for relief. The state appeals board rarely upholds 40B denials by local boards.

"I'm disappointed," Mr. Bennett said this week. "All these boards will talk about how much we need affordable housing, and when it comes right down to it, they say no. Because they're looking for the perfect place to have it, and there is no perfect place."

What is affordable?

Mr. Bennett said he is confident Cozy Hearth will win an appeal. Ms. Cini estimates that, in a best-case scenario, the process would take at least six months.

In the meantime, the members will meet to look at the numbers and vote on whether to continue as they face another delay and rising expenses.

"If I get an overwhelming sense that they don't want to keep going, then we'll sell the land," Mr. Bennett said. "I'd rather not sell the land, but if the members want to get out and go to Maine or whatever, then they should get their money back. We won't lose money at this point, but a year from now, that may not be the case." For four years, the group paid $5,000 a month on the land. Mr. Bennett estimates the appeal will cost about $60,000, which will add another $8,000 to the price of each lot. When the Cozy Hearth purchased the land, they expected to pay about $90,000 per lot. "Since we started, the cost of the lots has doubled," Mr. Bennett said. "By the time we're done, we will probably have spent about $400,000 just in permitting, which has added about $40,000 per lot."

Some of the MVC conditions, such as denitrification systems and composting toilets, add $27,000 to the cost of each house, he added.

Under the MVC's housing affordability calculations, a family with an income of $100,650 could afford a purchase price of $404,800 after making a 10 percent down payment.

With the price of the Cozy Hearth lots now up to about $170,000, families will have to build small homes, Mr. Bennett said. He estimates a modest, 1,200 square-feet Cape will cost a minimum of $130,000, bringing the price of the so-called affordable houses and lots up to $300,000 and a $400,000 mortgage.

"It's still a good deal, because a $400,000 house on the Vineyard would probably be a one-room shack," Mr. Bennett joked.

At last week's ZBA meeting, Mr. Colter suggested if the Cozy Hearth project fell through, the members could find comparable housing in the $404,000 range elsewhere on the Island. Cozy Hearth member Kelly Buckley commented later, "I feel like running an ad in the paper: 'Wanted. Home for $400,000, three bedrooms, two baths, brand-new preferred. Mr. Colter said it exists - I want it.'"

Ms. Buckley, a Tisbury police officer, and her partner, J.T. Kershaw, one of Mr. Bennett's employees, have a four-year-old son, Joseph, who has grown up attending Cozy Hearth hearings and looking forward to a new home.

"Now what are we going to tell him? I'm literally dumbfounded we spent four years on this and these people took a 10-second vote that blew it out of the water," Ms. Buckley said, adding that she and Mr. Kershaw most likely will move off-Island. "We just can't afford it. They're never going to keep the service people on this Island if they can't buy a home."

Several of the original Cozy Hearth members have left and more will be leaving after this latest decision, Mr. Bennett said. "The thing that makes me feel the worst about this is that I have dragged those poor people for four years through this process, which I assumed would take a year."

He does have a list of people who want a spot, so replacements are not a problem. "Regardless of who is in it, Cozy Hearth will still be for people that need it," he said.

Support from affordable housing advocates

Other affordable housing projects have encountered similar red tape and delays. Tom Richardson, developer of the Fairwinds Project, sympathized with Mr. Bennett's experience.

Recently, an administrative judge ordered the plans for Mr. Richardson's 12-unit, Chapter 40B housing development on a 4.9-acre parcel off the Greenwood Avenue Extension back to the Tisbury's zoning board of appeals. "It's unfortunate that every affordable housing project on the Island has to go through so much pain and suffering in order to get approval," Mr. Richardson said.

Last September, the Tisbury ZBA began a fresh review of the Fairwinds plan, which was first filed with the board in December 2001. The application was referred to the MVC in January 2002 for review as a DRI.

Developers eked out approval from the MVC by scaling back their original 24-unit proposal over the course of six public hearings and numerous land use committee meetings. The density limit was ultimately settled during the final hearing. But when the application returned to the Tisbury ZBA from the commission early this year, the board refused to review it.

In light of such obstacles, the Island's affordable housing advocates kept a close watch on Cozy Hearth's progress, especially since it is unique as a project developed by a private individual rather than a developer.

David Vignault, director of the Dukes County Regional Housing Authority, who attended a ZBA hearing, commended Mr. Bennett's efforts. "In general, the housing authority is very pleased that a respected Island businessperson and a group of his supporters stood up and are trying to get something done within what the law allows and creative zoning allows. It is only through a wide range of efforts, including private development, that we will make any gains in affordable housing," Mr. Vignault said.

Despite last week's ZBA decision, Alan Gowell, a member of the Edgartown resident home site committee, said, "Bill Bennett's suggestion is an idea that could repeat itself, and I still think it's a good idea."

Whether Mr. Bennett's experience will discourage other efforts from the private sector remains to be seen, housing officials agreed. "For people who want to do something and work with local boards to create these types of projects, there needs to be some way to find a middle ground, some way to locate properties that are acceptable and work financially for a private developer," suggested Philippe Jordi, Island Housing Trust executive director.

While Mr. Jordi said did he not view the ZBA's decision last week as a huge hurdle for Cozy Hearth, he said he is concerned about what happens next, in terms of the length of the appeals process.