As Land Court did, Appeals Court upholds Chappy affordable lots

By Nelson Sigelman - August 30, 2007

The Massachusetts Appeals Court Friday ruled against a group of 10 Chappaquiddick residents who have spent the past two years in court fighting to block the development of affordable housing on three one-acre lots.

In a five-page decision, the appeals court upheld a land court decision in favor of the Edgartown zoning board of appeals' (ZBA) issuance of three special permits to qualified applicants. (A copy of the decision is available here).

The plaintiffs' only remaining legal recourse is to seek review by the state Supreme Judicial Court. There is no guarantee that the state's highest court would even hear the case.

The 10 plaintiffs filed their original lawsuit in September 2005, to block the construction of three houses on three affordable one-acre housing lots on Sandy Road, off of Litchfield Road.

Edgartown zoning bylaws prohibit building on lots less than three acres in size on Chappaquiddick. However, a special bylaw designed to promote affordable housing allows the ZBA to issue special permits to potential homeowners who meet certain income, residency, and age requirements, allowing homebuilding on substandard lots.

Along with the issue of density, the plaintiffs argued 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.

The appeals court said there was nothing in the zoning bylaw that required the ZBA to take any of those issues into consideration. The appeals court further noted that in some cases the voters had created special zoning districts (districts of critical planning concern) where environmental factors could be considered but that these lots are not in a special zoning area.

Edgartown town counsel Ron Rappaport said that this was the first legal test of the town's resident homesite bylaw that was passed by the voters in 2001. He said he is pleased that the appeals court upheld the ZBA decision.

Mr. Rappaport said the court victory is tempered by the costs to those most affected by the legal struggle. "I feel most sorry for these families who have been forced to deal with makeshift housing," he said. "In my view, there was no basis for a legal challenge. The town was fully prepared to defend this all the way and has, but the burden has been borne by these families."

Reached Tuesday, lawyer Ellen Kaplan, who represents the 10 plaintiffs, repeated the arguments outlined in the lawsuit. The primary concerns were the appropriate density for the location given the environmental sensitivity of the area, she said.

Ms. Kaplan said the plaintiffs hired a professional zoologist to survey the site and confirmed the existence of a significant number of species of special concern. That information was provided to the state Natural Heritage and Endangered Species Program.

Asked why individuals and groups that have often worked tirelessly against projects they think would harm threatened or endangered species had taken no interest in this fight, Ms. Kaplan said the plaintiffs did not contact them.

Throughout the legal battle, town officials have been highly critical of the plaintiffs. "The personal attacks on their character and motives throughout was inappropriate and to some extent unprofessional," Ms. Kaplan said.

She said no decision has been made regarding the next step.

The protracted battle began when the ZBA approved three special permits, and the Edgartown resident homesite committee qualified Andrea DelloRusso and Luke Riordan, Joe Spagnuolo and Cheryl Herrick, and Clinton Fisher to purchase the lots.

In September 2005, George Mellendick, James Williams, William O'Connell, Paul Wales, Robert and Cheryl Finkelstein, Frank and Karen Gazarian, Cornelia Dean, and Lionel Spiro asked the Land Court to overturn the ZBA decision.

In a summary judgment, dated June 22, 2006, Land Court judge Gordon H. Piper rejected the plaintiffs' arguments.

In September the plaintiffs appealed.

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.

Last September, time ran out for Mr. Spagnuolo and Ms. Herrick, when the purchase and sales agreement for $40,000 they signed with Juanita B. Vickers of Melbourne, Fla., owner of all the Sandy Road lots in question, expired.

Soon after that Robert S. Finkelstein and Cheryl Finkelstein of Marblehead, two of the plaintiffs and abutters, purchased the lot for $287,900.

As part of that arrangement, Ms. Vickers sold Mr. Spagnuolo and Ms. Herrick another lot on 24 Jason Drive for $40,000. The couple received a special permit and are proceeding with plans to build a house, according to town records.

Mr. Fisher bought his lot from Ms. Vickers in May 2005. According to town records, he has a well in and has received a septic system permit.

Andrea DelloRusso and Luke Riordan, the couple selected for the lot owned by the Island Housing Trust, have been living in a rented house on Chappaquiddick while awaiting a decision in the appeal.

The plaintiffs' environmental argument was eroded a bit last month, when it was revealed that William S. O'Connell, one of the 10 plaintiffs, clear-cut a portion of a one-acre lot he owns on Sandy Road adjacent to his house for use as a helicopter landing site. His house and would-be landing pad sit in the same eight-lot subdivision as the three lots at the center of the lawsuit.

Leonard Jason Jr., town zoning officer, issued a cease and desist letter asserting that creation of a helicopter landing site was prohibited by town bylaws. "I am constrained," wrote Mr. Jason in a footnote to his letter, "to note that you are one of the plaintiffs in an action brought in the Land Court appealing a decision of the ZBA granting special permits for three affordable housing lots in the same 8-lot subdivision in which your house and your helicopter landing area is located... While the issues raised in that action are not relevant to the cease and desist order, the clearing of the landing area is contradictory with the position which you and the other plaintiffs have taken in the pending litigation."

Phillipe Jordi, executive director of the Island Housing Trust (IHT), said the facts of the case, the decisions of both the Land Court and Court of Appeals, and the actions of Mr. O'Connell to clear-cut the environmentally sensitive habitat that the plaintiffs claimed to be trying to protect, speak for themselves.

"The IHT looks forward to proceeding with the building of a modest single-family house, located on its one-acre lot on Sandy Road for a deserving working Island family," said Mr. Jordi.

Bob Clay, a Chappaquiddick resident and member of the resident homesite committee, said there was nothing unreasonable about the town's original decision to issue special permits that would allow for affordable housing on these three one-acre lots. He said Edgartown was right not to back down in the face of a lawsuit and subsequent appeal. "I'm proud of the town," said Mr. Clay.