State Land Court finds for the ZBA on Chappy houselots

By Nelson Sigelman - June 29, 2006

The Massachusetts land court last week ruled against a group of property owners who went to court in September to overturn an Edgartown zoning board of appeals (ZBA) decision to allow three affordable housing units to be built on three one-acre lots on Chappaquiddick.

Along with the issue of density, the 10 plaintiffs in the Chappaquiddick case raised environmental concerns.

Edgartown zoning bylaws prohibit building on lots less than three acres in size on Chappaquiddick. However, at the annual town meeting in April 2001, Edgartown voters approved a special bylaw designed to promote affordable housing that allows potential homeowners who meet certain income, residency, and age requirements to build on substandard lots.

In a summary judgment dated June 22, land court judge Gordon H. Piper found that the Edgartown ZBA acted properly and within the scope of the town's zoning bylaws when it issued three special permits.

The judge also rejected the plaintiffs' argument that the ZBA should have considered whether the proposed residential construction would have a negative impact on protected or endangered species, including certain varieties of moths, before issuing permits.

(A copy of the full decision is available here).

A summary judgment is a decision made by the court without trial, when there is no dispute as to the facts of the case. Both sides in the case, the plaintiffs -10 seasonal and year-round Chappaquiddick property owners - and the defendants - named as the six members of the ZBA, the lot recipients and the Island Housing Trust Corporation, which owned one of the lots - filed motions for summary judgment.

The Land Court decision was welcome news for town officials and the two couples and one individual who have had their building plans put on hold for more than 10 months. For the would-be homeowners, the waiting is not over. The plaintiffs still have 30 days to appeal.

On Tuesday, Ellen Kaplan of the Edgartown law firm of Kaplan and Nichols, lawyer for the plaintiffs in the case, said she had only just received the decision and had not had an opportunity to discuss the court decision with her clients or their next course of action.

Ron Rappaport, Edgartown town counsel, said he was very happy for the three families. "They have waited a long time, and hopefully there will be no appeal and they will be ale to get started, build a house and move in," said Mr. Rappaport. "On a larger note, the court said that Edgartown has appropriately zoned for both environmental protection and affordable housing. And frankly, I view the neighbors objections as simply, not in my backyard."

The 10 plaintiffs, which include a mix of seasonal and year-round residents are: George Mellendick, James Williams, William O'Connell, Paul Wales, Robert and Cheryl Finklestein, Frank and Karen Gazarian, Cornelia Dean, and Lionel Spiro.

Yesterday, those plaintiffs The Times was able to reach declined to comment on the record.

ZBA was right

Characterizing the decision as a win for the zoning bylaw, ZBA chairman Martin "Skip" Tomassian said the judge ruled that the ZBA correctly applied the bylaw when it issued the special permits. "It is also a win for the folks who are in line for the resident lots," said Mr. Tomassian.

Last August the ZBA voted unanimously to approve the one-acre lots on Sandy Road, off of Litchfield Road, for affordable housing. That summer the Edgartown resident homesite committee qualified Andrea DelloRusso and Luke Riordan; Joe Spagnuolo and Cheryl Herrick; and Clinton Fisher to purchase the lots.

In three separate appeals filed Sept. 6, Ms. Kaplan said that the project site was inappropriate for development for residential use, was in an environmentally sensitive area, and that the construction of three houses would adversely affect the neighborhood.

Following the filing of the complaint Mr. Rappaport said he would ask the court to consolidate the complaints and move as expeditiously as possible in the interests of the recipients. This week Mr. Rappaport said he was very pleased that the court responded to the request for a prompt decision.

Phillipe Jordi, executive director of the Island Housing Trust (IHT), said the court's decision reflected the judge's understanding of the arguments presented by town counsel and the situation faced by the families who are in dire need of affordable housing. "He really did an incredible job of turning this case and issuing a favorable decision in a very short period of time," he said, noting that the case was heard approximately six months ago.

"I think it speaks well, not just for affordable housing," Mr. Jordi said, "but particularly this town bylaw that has created these small substandard lots that can be used for affordable housing. We are very happy and hoping that we can proceed at this point."

Mr. Jordi said the IHT had discussed its plans with the abutters and had attempted to speak with them before and during the court case to find ways to mitigate the impacts of the housing and avoid further litigation. He said he has no idea if an appeal is in the future.

Tears of joy

One of those most directly involved is Cheryl Herrick. Her first reaction when she learned the news about the decision from Pam Dolby, Edgartown executive secretary, early Tuesday morning was to jump for joy, then cry. "I jumped up and down and then I started crying," she said. "I was just so excited."

Ms. Herrick received the news on the same day that she and her husband, Joe Spagnuolo, were engaged in what has become an annual ritual for the past five years; packing all their possessions and moving from their winter rental into a house with nearby family members who are willing to take them in. "This was the day we had to move out and I was just telling my husband, I really hope this is the last time we have to do this," she said.

She added, "Apparently we have to wait 30 days to see if they want to put in an appeal. We can't get the building permit until the 30 days are up."

Ms. Herrick knows exactly what she will do if the 30 days pass without an appeal filed. "I plan on grabbing the building permit and putting my husband, who is a contractor, right to work," she said. "We have already received calls from people who have been helping us from the start like Bob Clay and Janet Hathaway. Everybody is saying, whatever we can do to help let us know, so it is the Chappy community coming through again."

Janet Hathaway, chairman of the Edgartown resident homesite committee, said she was relieved by the decision. "Hopefully by this time next year all of the recipients will be in houses," she said. "I'd love to see that happen."