Battles over 40B housing plans persist
Amesbury has filed appeals in two recent rulings against the city in an ongoing battle with developers over projects proposed under Chapter 40B, the state's affordable housing law.
One of the rulings concerns a proposal by Meadowbrook Estates Ventures LLC, whose principal is Wayne Vynorius, to construct 269 town house condominium units on a 155-acre site off Kimball Road. The other involves a proposal by Roger LeBlanc to build Eagle Point, a 56-unit rental development on a 10-acre site off Clark's Road.
A state Land Court judge last month affirmed the 2006 decision by the state Housing Appeals Committee overturning the Amesbury Zoning Board of Appeals' 2003 denial of a comprehensive permit for the Meadowbrook project. Amesbury had appealed the ruling of the Housing Appeals Committee, which can overturn local decisions on Chapter 40B projects.
Also last month, the state committee affirmed the zoning board's 2006 issuance of a comprehensive permit for Eagle Point, but rejected some of the permit conditions, including that the size of the project be reduced to 44 units. LeBlanc had appealed the local limits to the state.
Mayor Thatcher W. Kezer decided to take both rulings "to the next step," said his chief of staff, Kendra Amaral. The Meadowbrook case appeal was filed with the state Appeals Court, and the Eagle Point decision was appealed to Superior Court.
The recent rulings followed a decision by the Housing Appeals Committee against the city last October on another Chapter 40B project, a proposal by Attitash Views LLC to build 40 condominium units on Haverhill Road. The state panel affirmed the zoning board's 2006 granting of a permit for the project but rejected some conditions of the permit. The city's appeal of that ruling is pending in Superior Court.
Over the last three years, the city has spent approximately $98,000 for outside counsel, expert witnesses, and other ancillary costs related to the Chapter 40B cases, according to Amaral. The money comes out of the city's regular legal budget.
Jonathan D. Witten, Amesbury's special counsel in the three cases, said the adverse rulings are not indicative of a lack of commitment by the city to affordable housing.
"You can count on one hand the number of times the Housing Appeals Committee has upheld a community," Witten said, adding that Amesbury "has proven itself to be a leader in the field of development of affordable housing." He noted that Amesbury has surpassed the state requirement of having 10 percent of its housing stock affordable. The city reached the mark last year, and currently 11.1 percent of its housing meets state affordability standards.
Communities that have met the 10 percent affordable housing threshold are effectively exempt from Chapter 40B. But Amesbury's exemption does not apply to the Meadowbrook, Eagle Point, and Attitash projects because the zoning board decisions on the three developments preceded the city reaching the 10 percent mark.
Regarding the Meadowbrook Estates case, Witten said, "The city believes that the Housing Appeals Committee decision was well beyond their power and will now ask the Appeals Court to conclude as such."
Attorney Ted Regnante, who represents Meadowbrook, said, "We are very pleased with the decisions of both the Housing Appeals Committee and now the Land Court. The Land Court reaffirmed each and every one of the findings of the Housing Appeals Committee.
"In my opinion, an appeal of the Land Court decision will be frivolous and summarily dealt with by the appeals court."
An issue of contention for the past seven years, the Meadowbrook proposal would be built on undeveloped land between Lake Attitash and Meadow Brook.
In its decision, the local zoning board expressed concern with the size of the project and the viability of the developer's plans for a waste-water treatment plant. It also contended the proposal does not adequately provide for emergency access, would pose potential traffic safety hazards, and was contrary to the city's "smart growth" goal of locating development near its center.
But the state found the zoning board failed to prove there is a "valid health, safety, environmental, or other concern that supports the denial," or that "such concern outweighs the regional need for housing." In his ruling, Land Court Judge Charles W. Trombly Jr. concurred.
Amesbury did not meet "its burden of introducing credible evidence of valid local concerns outweighing the regional need for affordable housing," Trombly wrote.
In the Eagle Point case, the state determined that certain conditions imposed by the zoning board "render the project uneconomic and are not consistent with local needs."
Witten said the proposal calls for more units than the zoning board "believes is appropriate for that site given its constraints. . . . It's going to take the trial court to determine if the [state's] Housing Appeals Committee exceeded its authority."
Peter Freeman, LeBlanc's attorney, said that his client appealed the zoning board decision "because of the reduction in size and conditions, which we thought were extremely extensive and overburdensome."
Regarding the city's appeal of the state ruling, he said, "The statute allows an appeal, and they certainly have the right to take an appeal. That said, we believe the Housing Appeals Committee decision was correct and that it should be affirmed."
