Judge will not reconsider Chappy housing decision

By Nelson Sigelman - August 3, 2006

Land court judge Gordon H. Piper needed less than three and a half weeks to rule on a request from a group of Chappaquiddick property owners that he reconsider his ruling in favor of the Edgartown zoning board of appeals (ZBA) decision to allow three affordable housing units to be built on three one-acre lots.

Plainly and clearly, the judge said no.

On July 3, the plaintiffs asked judge Piper to reconsider his earlier decision in favor of the defendants, who included the three recipients of the one-acre lots, on the grounds that the judge did not consider what adverse effects the decision to grant permits would have on the neighborhood and that outstanding factual issues remained in the case that could only be brought out at trial.

In a summary judgment issued June 22, viewable here, Judge 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 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.

In his rejection of the plaintiffs' request issued on July 27, Judge Piper wrote, "Plaintiffs cannot contend that they are surprised by the court's decision and the judgments disposing of these cases. Plaintiffs had to have recognized that if they did not prevail on any of the legal issues raised on summary judgment, the court would enter judgments in these cases, adjudicating them in their entirety."

More legal battles are expected. The plaintiffs have a 30-day window allowed by the court within which to file an appeal following the July 27 decision.

In unusually blunt language, this week Ron Rappaport, Edgartown town counsel, criticized the plaintiffs' and promised that he would do everything he could to counter their legal volleys and speed the legal process to a conclusion that would allow the recipients of the three lots to begin building.

"I think the judge clearly found their arguments frivolous and disingenuous," said Mr. Rappaport. "And I think he saw it for what it is, an attempt to delay."

Mr. Rappaport said he was troubled by the effects of the plaintiffs' strategy, which have been most keenly felt by the three recipients who he said are desperately in need of affordable housing and do not have the means to hire their own lawyer. "These nine plaintiffs are using economic leverage to delay what I think will be an inevitable outcome, which will be a decision upholding the zoning board of appeals issuance of the special permit, and I think it is too bad."

Mr. Rappaport said the town is not going to give up the fight. "From the town end, which we said right from the beginning, is that we would do all that we can to move these cases along. We've done that and we are going to continue to do it," he said. "We are going to do anything that we can to try and get these people into their homes as quickly as possible."

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 Finkelstein, Frank and Karen Gazarian, Cornelia Dean, and Lionel Spiro.

In recent weeks with one exception those plaintiffs contacted by The Times have declined to comment. The plaintiffs' attorney, Ellen Kaplan of Edgartown, did not return a telephone call made Tuesday.

On Tuesday, Mr. Spiro e-mailed a statement to The Times. Mr. Spiro wrote, "The present situation on Sandy Road is unfortunate because of many circumstances that have not been discussed in the press. There are two sides to most stories. All are people who have worked hard to be able to afford their homes and maintain them. Like those in other neighborhoods, they naturally have concerns about protecting their investments.

"All, except for me, are contiguous to the three lots that have been assigned to wonderful youngsters who were selected for these lots. They are eager to see these people settled and to move on. All are decent and caring people who are hopeful that discussions with other well-intentioned people who have title to the land will soon resolve this nightmare in a way that will be beneficial to the three groups of candidates whose dreams have sadly been delayed for about a year. Each of the plaintiffs has lost sleep over this and all are hopeful that with their support, their attorney will be able to work with the people of goodwill who represent the Town, the landowners and most of all the young people whose dream homes have been delayed."

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.