City seeks dismissal of overlay lawsuit

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August 29, 2012

City seeks dismissal of overlay lawsuit

By Steven Fletcher Staff Writer The Gloucester Daily Times Wed Aug 29, 2012, 12:00 AM EDT

The city has asked the state’s Land Court to dismiss a spot zoning lawsuit filed against it by a local nonprofit group challenging the City Council’s approval of a hotel overlay district on Commercial Street — and raising questions regarding the fairness of the approval process.

In an answer to the suit filed by Attorney Daniel Hill on behalf of the now-reorganized Port Community Alliance, City Solicitor Suzanne Egan asked the court to dismiss the complaint. Egan’s answer, filed Tuesday, denies all of the allegations Hill laid out in his lawsuit.

“This court lacks subject matter jurisdiction as the plaintiffs lack standing to bring the complaint,” Egan’s answer states, “Therefore, defendant City of Gloucester respectfully requests that this complaint be dismissed.”

Egan did not return calls seeking additional comment for this story.

Hill’s lawsuit alleges the City Council’s approval of a hotel overlay district for the Birdseye site at 47 Commercial Street was spot zoning.

Beauport Gloucester LLC sought the zoning change in preparation for building a 101 room, $20 million to $25 million hotel on that site. The company has applied for a special permit for the project. That application is under review by the City Council.

In addition to citing spot zoning claims, the lawsuit also alleges that two city councilors received gifts, directly or indirectly, from the proponent of the zoning amendment, “clouding their objectivity” and allegedly in violation of state ethics laws, the lawsuit states.

Egan’s answer tersely denies those allegations.

Hill did not provide evidence to support those, and other allegations made against the council yesterday. He said that he couldn’t divulge it at the moment because it was part of the legal process. He added that the evidence would be forthcoming.

“We are not at liberty to share that right now,” he said.

Hill initially filed the lawsuit on behalf of a group called Hold the Fort Inc., and residents Laurel Tarantino and Nathaniel Mulcahy. But there was no sign that Hold the Fort ever registered as a nonprofit corporation as claimed by the time he filed the suit in Land Court.

“Hold the Fort Inc. was improperly created,” Hill said Tuesday.

He added that he filed an amended complaint last week, after the Port Community Alliance registered as a recognized nonprofit. The amended complaint lists the alliance as the lead plaintiff, along with Laurel Tarantino and Audrey Malloy. Hill said Nathaniel Mulcahy was no longer a plaintiff in the lawsuit.

The organization announced that it dissolved two weeks ago and reformed as the Port Community Alliance. Hill declined comment on what was improper regarding Hold the Fort and referred comment to members of the Port Community Alliance.

James Tarantino, who is listed as the Alliance president, could not be reached Tuesday for comment on this story.

The alliance, a 501(c) 4 nonprofit, filed its corporation papers with Secretary of State William Galvin’s office on August 20. Those papers state that the corporation organized to promote and advocate for the preservation and growth of marine industry in Gloucester.

According to the filing, six residents are listed as sitting on the agency’s board of directors. They are, Jennifer Johnson, a Fort Square resident, Justin Demetri, a Clearview Avenue resident, Rev. Rona Tyndall, a Fort Square resident, James Lynch, a Fort Square resident, Nathaniel Mulcahy, a Middle Street resident, and Denise Foley, a Western Avenue resident.

The nonprofit also lists Starknaught Road resident and former City Councilor Jay Gustaferro as its marine industry liaison.

“Port Community Alliance’s mission includes the creation and support of educational opportunities within the marine industrial sphere, the nonprofit’s corporation’s filing reads. “The corporation’s members will encourage the continued development of the Fort to support its residents, expand existing innovation-focused marine industries and encourage new marine related businesses to come.”

Steven Fletcher can be reached at 978-283-7000, x3455, or at sfletcher@gloucestertimes.com. Follow him on Twitter @StevenGDT