Land Court Denies Bid to Halt Affordable Homes
By IAN FEIN
A Massachusetts Land Court judge last week solidly denied a motion for reconsideration from a group of neighbors who are trying to fight three affordable one-acre homesites on Chappaquiddick.
Edgartown town counsel Ronald H. Rappaport yesterday said the ruling - which directly rejected a series of claims made by the neighbors' attorney - speaks volumes about the nature of the case.
"It's clear from the judge's ruling that these plaintiffs are engaging in dilatory tactics designed to delay and frustrate these very deserving families from moving into their homes," Mr. Rappaport said. "They are trying to use economic leverage against people who don't have those means, and I think it's really a shame."
Since receiving special permits from the Edgartown zoning board of appeals last August, town residents Andrea DelloRusso and Luke Riordan, Joe Spagnuolo and Cheryl Herrick, and Clinton Fisher have been waiting to build homes on the three substandard lots on Sandy Road. The lawsuit, brought by neighbors last fall, has delayed the real estate closings on the three homesites for almost a year.
Mr. Rappaport pledged to keep pressure on the neighbors, who are now expected to take their case to the Massachusetts Appeals Court. Edgartown attorney Ellen Kaplan, who represents the neighbors in the lawsuit, did not return a call for comment yesterday.
"The town has and will continue to do everything we can to move these cases forward so that these families can get into their homes as quickly as possible," Mr. Rappaport said.
Finding no issues of genuine material fact, the Hon. Gordon H. Piper in late June issued summary judgment in favor of the zoning board and housing candidates, who he said were entitled to their special permits as a matter of law. The neighbors in a subsequent motion argued that Judge Piper improperly disposed of the lawsuit without first hearing all of the facts relevant to the case.
In a seven-page ruling released last Thursday, Judge Piper noted that he met with attorneys in an extensive case management conference last winter, when together they reviewed, framed and narrowed all of the relevant issues in the case.
During that conference, according to Judge Piper, the parties on both sides of the case agreed that the only outstanding factual matter was whether the zoning board properly considered the substandard lots as priority habitat for rare or protected species. Judge Piper in his original decision concluded that, because the Sandy Road lots were not located in any special zoning districts, the zoning board was not required to conduct such an ecological review.
Judge Piper last week said that the case was properly closed after the original ruling, and in judicial language, he characterized the plaintiffs' claim of additional factual issues as disingenuous.
"At no time during their colloquy with the court, nor in their submissions made in connection with the dispositive motions, nor at argument on those motions, did plaintiffs identify other specific factual issues that would remain as a basis for the court to annul or remand the board's decisions should plaintiffs not prevail on summary judgment," Judge Piper wrote. "Plaintiffs had ample opportunity to raise with the court any additional factual issues that would require trial, and they did not."
He also cast doubts on the merits of their complaint.
"Even in their motion for alteration of the judgments, plaintiffs have not pointed to the existence of any concrete, particularized facts in dispute on which they base their contention that the board's decisions granting the special permits were arbitrary, capricious or legally untenable," the judge wrote.
Minimum zoning on Chappaquiddick is three acres, but building on substandard lots is allowed by special permit for qualified applicants under a special town zoning bylaw. Edgartown voters adopted the bylaw at their 2001 annual town meeting as a way to help create more housing opportunities for town residents who cannot afford market rate lots.
The one-acre lots were carved out in a 1970s subdivision plan that predated three-acre zoning by two weeks. Some of the abutters who brought the case also live on substandard lots from the old subdivision. Plaintiffs in the case are listed as George Mellendick, James Williams, William O'Connell, Paul Wales, Robert and Cheryl Finkelstein, Frank and Karen Gazarian, Cornelia Dean and Lionel Spiro.
Mr. Spiro yesterday said the neighbors were eager to resolve the matter.
"The neighbors are very concerned and very eager to work out a way to provide for the three people who were designated to get the affordable housing lots. We're very anxious, and have been for some time, to resolve this to everyone's satisfaction," he said. "I think with everyone's good will, this situation will have a happy ending."