Chappaquiddick Homes Allowed

Appeals Court Backs Edgartown in Affordable Homesite Case; Attorney for Town Blasts Ten Suing Neighbors

By JULIA WELLS

Without reservation, the Massachusetts Court of Appeals upheld the town of Edgartown last week in the Chappaquiddick affordable homesite case that has attracted attention throughout the Cape and Islands region.

Absent a petition for further review by the state Supreme Judicial Court, the ruling marks a final defeat to the group of Chappy neighbors who have been trying for two years to block the development of three single family homes on three one-acre homesites on Sandy Road.

There are ten plaintiffs in the case.

The neighbors claim that the town zoning board of appeals failed to consider the fact that the homesites are located in a priority habitat area for endangered species when it issued a special permit for the homesites in 2005. The argument was rejected by the Massachusetts Land Court in a decision upholding the town June of 2006. Last week the appeals court agreed with the land court.

Both courts found that the zoning board was not required to look at environmental issues but was simply required to carry out the terms of a town bylaw adopted by voters in 2001 that hands special-permit granting authority to the zoning board to allow substandard lots to be converted to affordable home sites.

The special permits are granted in the judgment of the zoning board on a case-by-case basis and are accompanied by detailed regulations including requirements that the lot must be at least 10,000 square feet in size, must meet board of health setbacks for well and septic and must carry covenants which keep the lot affordable in perpetuity.

Priority habitat is a broad term that applies to most of the Vineyard, both courts found, and is regulated by the state. "The issue is not whether endangered or protected species or their habitats will be left unregulated. The division of fisheries and wildlife [is responsible for such regulation]," the appeals court wrote. Both courts also took note of the fact the Natural Heritage Program did review the home site applications and ruled that they did not constitute what is termed a take under the laws that protect endangered species. This amounted to an environmental green light for five year-round blue-collar young Island residents, including two couples, who wanted to build homes on the three lots.

The appeals court additionally noted that Sandy Road is not affected by any of a number of districts of critical planning concern that cover other environmentally sensitive areas on Chappaquiddick and in Edgartown.

"[T]he traditional zoning board review . . . did not require the specialized endangered species and habitat review requested by the plaintiffs," the appeals court concluded.

Sandy Road is fronted by a subdivision of eight one-acre lots, carved out in a 1970s subdivision plan that predated zoning by two weeks. At least two of the lots are built on.

As it has made its way through the courts, the Chappaquiddick case has taken a number of side roads. At one point, two of the suing neighbors in the case bought one of the three lots that had been granted a special permit by the zoning board, after a purchase-and-sale agreement expired between buyer Joe Spagnuolo and the lot owner. In the end, the neighbors paid $287,000 for a one-acre lot that had been under agreement for sale to Mr. Spagnuolo at a price of $40,000.

Two affordable lots now remain. Andrea DelloRusso and her husband Luke Riordan won their lot through the Edgartown housing committee and have an agreement to buy and move a house from a conservation property bought by the Martha's Vineyard Land Bank on Chappy two years ago. The other prospective lot owner is Clinton Fisher. The lawsuits have blocked the real estate closings for nearly two years.

One of the plaintiffs in the case also bought another one-acre lot on Sandy Road, not designated for affordable home building, and recently clear-cut the land for use as a helicopter landing area. The town has issued a cease-and-desist order to property owner William O'Connell.

Ellen Kaplan, an Edgartown attorney who represents the plaintiffs, said yesterday that her clients have been unfairly maligned in the press and are genuinely concerned about the environment and the carrying capacity of the neighborhood.

"The plaintiffs - notwithstanding what might be considered some personal attacks on their character and their motives throughout this process - raised a genuine issue about the density of the development for the area . . . . and in the course of their research they hired a biologist who did indeed confirm the existence of threatened species that were designated of special concern that are in that area. That was always their focus and what they were trying to bring attention to. The question was always on the issue of the sensitivity of the area," she said.

Ms. Kaplan had no comment on whether her clients will petition the state's highest court for further appellate review.

Edgartown town counsel Ronald H. Rappaport yesterday praised the appeals court ruling and blasted the neighbors for their contradictory positions.

"First, I am pleased that the appeals court has affirmed the town's decision to allow affordable housing on these sites - this is the first test of the town's affordable housing bylaw and it's significant that it has been upheld," Mr. Rappaport said, adding:

"As to these plaintiffs, they wrapped themselves in an environmental flag but they stood silent while one of the plaintiffs clear-cut an area for a helicopter landing strip. Their actions - or silence - speak louder than any words I can come up with and the appeals court had no difficulty in seeing through the shallowness of their arguments." He concluded:

"It's been a long road and it's time for these families to move into their homes."