By Richard Gaines
Brierneck Crossing would be the first private development brought to Gloucester under the auspices of the state's anti-snob zoning and affordable housing law, Chapter 40B.
To settle a long legal battle against housing on the site at the corner of Thatcher Road and Witham Street, the Zoning Board of Appeals last month voted in closed session to allow a smaller version of the project. Under an agreement proposed by the developer, the condos would be split among three buildings rather than built in a single row.
The appeals board in February 2005 rejected the proposal for 12 condos that North Andover developer James Grifoni submitted. It has agreed to allow eight condos, including two classified as affordable.
The settlement of the struggle must be affirmed by a public vote of the appeals board, which has scheduled a hearing for Aug. 10.
Grifoni's lawyer, Howard Speicher, said, "we have proposed a solution" that both sides can live with.
The appeals board's refusal to allow the larger project was appealed by Grifoni to the state agency that pushes affordable housing into communities resistant to them. The agreement was reached just as hearings were to begin on Grifoni's request to overturn the appeals board.
Because of Brierneck Crossing's relatively small size, the appeals board in its debate and 3-2 vote against Grifoni's project also pondered the city's chances in extended litigation.
In the debate, attorney Robert Stewart, who cast the deciding vote against Brierneck Crossing, condemned Chapter 40B for having become a "bludgeon that developers with questionable projects use."
The state and courts have interpreted Chapter 40B as requiring communities to show that public health and safety problems created by such projects outweigh the regional benefit of adding affordable housing.
Only communities like Gloucester with less than 10 percent of their housing stock considered "affordable" are subject to the requirement of Chapter 40B.
Attorney Terry Segal voted for the project only after conceding "it isn't a good site, and probably couldn't be filled legally today." But he added, "Nobody's convinced me this isn't a buildable lot."
Yesterday, Stewart said it would be inappropriate to comment on the tentative settlement before the public hearing.
Witham Street resident Barbara Schlichte said she was "disappointed" in the settlement.
As head of the Brier Neck Beach Alliance, Schlichte led a grassroots legal battle against development at the site, starting in the 1970s with challenges to the filling of the marsh west of Thatcher Road by now retired restaurateur Majeed "Jimmy" Sallah.
Sallah fought off Schlichte's group, but was thwarted in multiple efforts to put up a restaurant across from where Amelia's now stands.
Then City Council President John Bell joined the opposition and as mayor pledged Brierneck Crossing would not be built "on my watch." He urged the appeals board to reject Grifoni's application.
"This was not a 'not in my backyard' issue," he said after the vote. "This is a 'not in our marshes, not in our estuaries' issue."
Steven Magoon, the mayor's administrative assistant, described the vacationing Bell as resigned to the settlement as the city's best option. "Chapter 40B significantly limits our ability to negotiate," Magoon said.
In the late 1990s, Sallah sold Grifoni an option on six acres - the one buildable acre and five acres of protected marshland.
A builder active in inland Essex and Middlesex counties as well as in Maine and New Hampshire, Grifoni initially filed for 15 market-rate condos. But needing a special permit from City Council and aware of the passionate opposition across the city, he filed a new plan for 12 units, including the three affordable units that earned him the state's advocacy and the legal fast track granted to 40Bs.
A project willing to add enough affordable units can bypass all permitting, except that of the Zoning Board of Appeals.
To claim the support of Chapter 40B, a developer must commit to holding 25 percent of the units at affordable prices.
According to his filing with the state for the 12 units, Grifoni would pay Sallah $522,000 when the site is cleared for construction. Yesterday, Sallah said the arrangement had changed but declined to say how.
Efforts to reach Grifoni were unsuccessful. Speicher, his lawyer, declined to discuss the project before the appeals board hearing and binding vote. "I don't want to put the cart before the horse."
Should the appeals board reject the settlement agreement or should abutters appeal a decision by the board to affirm it, Grifoni would be allowed to resume the appeal he promised.
Following the board's 3-2 rejection of his 12-unit project on Feb. 1, 2005, Grifoni said Brierneck Crossing "will be built."
The city went through a similar process fighting off Captain's Row, an earlier and much larger Chapter 40B project of more than 200 units on 30 acres behind Fuller School. The city went to Superior Court to appeal the state's decision to force-feed Gloucester the affordable and market rate apartments.
Before the case could begin, would-be developer John Cahill sold an option on the property to Boston-based Sam Park, whose alternative concept - a shopping center and assisted living - was favored by the mayor and much of the neighboring community.
Park's project is working its way through city and state permitting.