GloucesterTimes.com, Gloucester, MA

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City makes legal pitch to KO Brierneck development

By Richard Gaines
Staff Writer
Published: November 21, 2009

A Superior Court judge has under advisement the city of Gloucester's arguments that a condominium development organized under Chapter 40B, the state's affordable housing law, should not be allowed to go up on a filled one-acre corner of the salt marsh across Thatcher Road from Good Harbor Beach.

The fight over Brierneck Crossing, a proposed 12-unit project, has been going on since 1990s, while the underlying dispute over the filling of a corner acre of the salt marsh, making the land arguably developable, traces to the 1970s.

The project has gained state support for the promise to sell four of the units at "affordable" prices.

By coincidence, an executive order of then-Gov. Michael Dukakis, who served in the '70s and '80s, directing subordinates to "evaluate potential flood hazards" in deciding on land usage, has emerged as a central element in the city's efforts to prevent the development.

Judge Thomas Murtaugh heard arguments Wednesday in the city's appeal of a state board's support for Brierneck Crossing — a project that has drawn near universal opposition because of its location.

Attorney Jonathan D. Witten, retained by the city to defeat the project, argued in a memorandum that developer James Grifoni has no right to build a state-subsidized project in a flood zone, and chastised the Housing Appeals Committee for failing to require Grifoni to prove his rights to build.

The Housing Appeals Committee's "refusal to hold the developer to its burden of proof regarding compliance with all applicable federal standards was an abdication of statutory duty and an error of law," Witten wrote.

Witten argued that Grifoni had failed to demonstrate that his proposal complies with state and federal mandates, including the Coastal Barrier Resource Act which prohibits federal funding or subsidy of any project within a flood hazard area.

He further argued that an executive order issued by Dukakis precluded state subsidies for the project. Efforts to reach Grifoni's lawyer, Peter Freeman, were unsuccessful yesterday.

Chapter 40B affords projects with either federal or state subsidies or financing with special protections, allows the developer to bypass local zoning and instead apply for a single, "comprehensive permit" and sets a low threshold for the city's finding. Chapter 40B essentially requires the city to approve the project unless it poses a public health or safety risk to the community.

The law applies to communities whose stock of "affordable housing," a term that requires calculation based on market conditions, is less than 10 percent of the total, and that is the case with Gloucester's.

The Housing Appeals Committee of the state Department Housing and Community Development is the body that hears appeals by developers of municipal rejections. The committee in August 2008 rejected the city's decision to deny Grifoni a comprehensive permit.

The appeals committee acknowledged that the city raised important issues about the siting of housing.

"It also tangentially exposed environmental issues which the city may face in upcoming decades resulting from potential environmental change," the appeals committee wrote in its decision.

But the committee, made up of five state officials in the housing secretariat, concluded that the city Zoning Board of Appeals "did not meet its burden in demonstrating a valid local concern that outweighs the need for affordable housing."

Witten argued that the Housing Appeals Committee failed to credit the city's refusal to approve the project for the corner of Thatcher Road and Witham Street.

"The project site and adjacent areas are subject to flooding, posing a threat to public health and safety, including the safety of emergency personnel," Witten said in his memorandum in support of his motion for judgment.

Former Mayor John Bell, who fulfilled a promise that the 12 units would not be built "on my watch," was in the courtroom for arguments.

The property was unfit for development into the 1970s until the then owner, James Sallah, filled one acre of his salt marsh holdings. Neighborhood opposition challenged the filling in court but ran out of money.

Sallah won a tenuous victory, then optioned the property to Grifoni, who began planning a condo development in the 1990s.

When it became clear that the City Council would not approve a housing development on the land, Grifoni retreated and returned with a 40B project that was rejected by the Zoning Board of Appeals in the 2004.

Grifoni, who is based in North Andover, attempted to reach an accommodation with the city, agreeing to reduce the size of the 40B project in exchange for the Zoning Board of Appeals' approval.

An apparent deal fell apart when Zoning Board of Appeals members who had agreed to the settlement voted against it, leading Grifoni to file his appeal with the Housing Appeals Committee.

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

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