GloucesterTimes.com, Gloucester, MA

May 18, 2013

Lawsuit challenges hotel approvals

By Richard Gaines
Staff Writer

---- — Vincent and Gino Mortillaro, who own and operate a lobster company across Commercial Street from the site of the planned Beauport Gloucester hotel, have filed suit against the city in Lawrence Superior Court in an effort to halt the project, alleging that the Conservation Commission, in approving the project, failed to protect their interests and the physical integrity of the area.

The developer, Beauport Gloucester LLC, was also named in the suit, which essentially appeals the commission’s ruling.

Filed Tuesday by the Mortillaro’s attorney, Michael Faherty, the suit has the potential to complicate, if not derail a 101-room hotel designed to replace the derelict and abandoned former Birdseye plant and cold storage concrete block building at the upper edge of Pavilion Beach.

The immediate potential trap for what — outside the Commercial Street businesses and the elevated residential enclave known as the Fort — is a project that’s been granted all of its needed local permits by the City Council, involves a potential delay in the start of a $7 infrastructure improvement of the Commercial Street/Fort neighborhood, Mayor Carolyn Kirk indicated Friday. That project is set to be carried out with a $3 million state grant, but the grant carries a time frame requiring construction to start “this spring,” or by June 21.

“The city Legal Department is evaluating our response,” said Kirk. “The infrastructure project is postponed indefinitely until we can understand the implications (of the suit) on the financing package. We are supposed to have a shovel in the ground this spring in order to benefit from the $3 million MassWorks grant.”

Faherty, however, said later Friday that “our appeal has nothing to do with the infrastructure project.” He said that the city was already facing delays on the infrastructure work because it still faces a Conservation Commission clearance that’s now scheduled for August.

“Any delay in the infrastructure has nothing to do with us,” Faherty said. “This is just a case of looking for someone else to blame because they haven’t been able to do what they had to do in the first place.”

Because the utilities on Commercial Street and Fort Square are among the oldest still in service, without the upgrade of the drainage, electrical and water systems, a major hotel on Commercial Street is of dubious viability. Developer Beauport LLC, a partnership of Cruiseport Gloucester co-owner and manager Sheree Delorenzo Zizik and New Balance Shoe Co. owner Jim Davis, have agreed to contribute up to $2 million for the infrastructure upgrade. The estimated total cost of the infrastructure is $7 million. The source of the additional $2 million has not been identified.

“I’m very disappointed,” said DeLorenzo Zizik. “We want to get this off the ground. It’s a stall and a disappointing act.”

The Mortillaros are also expected to file suit against the City Council for its special project permit for the hotel.

The City Council approved a zoning overlay district last June for the marine industrial zone that covers the entire enclave, then unanimously approved the special council permits for the hotel in March.

The reduction of the special permit to a legal document triggered the Mortillaro’s appeal. At least one other appeal, by the Port Community Alliance — a group of residents and other businesses in the Fort neighborhood, is possible.

Kirk said the city would defend the suit and determine its implications on the MassWorks grant, which, in addition to requiring the start of work this spring, is also tied to showing a given project will help bring in jobs.

The theme of the suit is that the Conservation Commission gave the hotel developer an order of conditions that ignored statutory requirements to protect the environment from harmful alterations.

Sub-themes include:

A “failure to properly condition work proposed on coastal beach/dune resource area;”

A failure to acknowledge inadequate public infrastructure;

Premature approval of the order of considerations for the project.

Much of the narrative in the suit describes how the construction of the hotel will alter in a way harmful to the environment and the Mortillaros’ business, which abuts the Birdseye site, the existing environmental conditions. A big section alleges that the creation of a seawall at the back of Pavilion Beach and a paved parking lot will alter the flow of seawater and flooding directing the flows past the hotel and exacerbate problems the Mortillaros now experience.

Regarding the seawall, the suit alleges that “the final seawall plan proposes the removal of sand and vegetation from the coastal beach and/or coastal dune resource areas,. the construction of a vertical wall in the coastal beach and coastal dune resource areas

The suit also alleges the developer has been allowed to introduce “more than 500 yards cubic yards of fill in the proposed parking lot. This fill will result in a significant change to portions if not all of the existing parking area. A result of this fill and change in elevation will be the redirection and acceleration of existing drainage patterns toward Commercial Street.

“A result of this fill and change in elevation will be an increase in the risk of storm damage to surrounding properties, including properties belonging to the Mortillaros, at lower elevation,” the suit continued. “The seawall, as currently planned, will cause flood and storm damage to abutters to the west, north and east ... Barrier over-wash flow will be funneled onto Fort Square with increased flow and velocity (and) erosion of Pavilion Beach will diminish the effectiveness of the beach in preventing storm damage to all abutters.”

The suit alleges that the Conservation Commission acted to approve an order of conditions “without having received final design pans for the seawall and drainage.” and, moreover, that the commission “acted without having a full understanding of precisely what was being proposed by Beauport.”

Richard Gaines can be reached at 978-283-7000, x3464, or at rgaines@gloucestertimes.com.