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."