Chappy affordable housing opponents appeal

By Nelson Sigelman - September 7, 2006

A group of Chappaquiddick property owners who lost a land court bid to block the development of three affordable housing units on three one-acre lots have filed an appeal.

The prospect of a protracted legal battle is a disappointment for affordable housing leaders and the three lot recipients who had hoped to begin building their new homes. The appeal process could consume more than one year.

"Unfortunately the plaintiffs have decided to pursue an appeal which will mean further delay, and it is very unfortunate," said Ron Rappaport, Edgartown town attorney.

Mr. Rappaport said the town has no intention of walking away from the fight and would ultimately prevail. "The town will do everything it can, and has, to uphold the validity of these special permits," he said. "We think that the case was without merit and the appeal is without merit."

The ten plaintiffs are appealing the June 22 decision by Land Court Judge Gordon H. Piper in favor of the Edgartown zoning board of appeals (ZBA) decision to permit the three housing units.

In a summary judgment, 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.

For the most part the plaintiffs are seasonal residents who abut or live close to the lots in question and object to the notion of increased density. One of the abutters, Marblehead dentist Robert Finkelstein and his wife Cheryl, live on a one-acre lot that abuts one of the lots in question on Sandy Road.

Behind the scenes, the plaintiffs have been working to find two alternative lots that could be used to entice two of the housing recipients to move to another location. The strategy appears aimed at reducing the number of affordable housing lots on one road.

Mr. Rappaport said the ZBA issued three permits for the lots in question. He said that if the plaintiffs want the applicants to relocate someplace else that has nothing to do with the town except that they would have to get new special permits for another location. "But we will defend these special permits," said Mr. Rappaport.

The defendants in the case are the six members of the ZBA, the lot recipients and the Island Housing Trust Corporation, which owned one of the lots.

The 10 plaintiffs are: George Mellendick, James Williams, William O'Connell, Paul Wales, Robert and Cheryl Finkelstein, Frank and Karen Gazarian, Cornelia Dean, and Lionel Spiro.

In an earlier e-mail to The Times, Mr. Spiro made an oblique reference to a deal. He said his fellow plaintiffs 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."

With the exception of Mr. Spiro, those plaintiffs contacted by The Times have declined to comment on the record. The plaintiffs' attorney, Ellen Kaplan of Edgartown, has also declined to comment and did not return a telephone call made Wednesday.

On Tuesday, Phillipe Jordi, executive director of the Island Housing Trust, said the trust has offered to increase the set-backs and no-cut zones to mitigate the effects of the developments. He described the appeal as "frivolous" and nothing more than a delaying tactic.

Mr. Jordi said there is no question the town will prevail but unfortunately a victory will take time. He said that those most affected are those most in need.

Cheryl Herrick and her husband Joe Spagnuolo had hoped to be building on their affordable housing lot by now. Ms. Herrick said that after already waiting one year the couple could now be facing another year's delay.

"It's really getting frustrating at this point," Ms. Herrick said. "Everybody is telling me to do different things."

She said the couple hoped to be done renting and in the process of closing in their new house before the bad weather arrived. "That's not going to happen now," she said.