Hotel foes file lawsuit

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August 11, 2012

Hotel foes file lawsuit

Claim cites 'spot zoning,' reputed 'gifts' to councilors

By Richard Gaines Staff Writer The Gloucester Daily Times Sat Aug 11, 2012, 12:00 AM EDT

A nonprofit corporation called Hold the Fort Inc., and two members of the tight-knit opposition to the redevelopment of the former Birdseye property on Commercial Street as a 101-room beachfront hotel have filed suit to block the project and the city-approved hotel overlay zoning district that opened the door to it.

Filed Monday in Massachusetts Land Court, the suit — which has been expected since the zoning overlay was approved 8-0 by the City Council in May — alleges that the council created an illegal “spot zoning” opportunity for the developer, Beauport Gloucester LLC, over the Marine Industrial zone that covers Commercial Street and the residential Fort Square.

Beauport project attorney John Cunningham said Friday, however, that the suit would not slow the pace of permitting for the estimated $20 million to $25-million project. The City Council Tuesday is expected to refer to the Planning Board and its own Planning and Development subcommittee the architectural plans that outline how Beauport Gloucester, headed by New Balance owner Jim Davis and Cruiseport Gloucester’s Sheree DeLorenzo, plan to replace the long-vacant cold storage facility across from a line of fish processing operations with a hotel complex on Pavilion Beach.

The City Council holds final approval authority over the project, just as it did for the overlay district .

The council’s overlay zoning encompasses a real estate anomaly of sorts; unlike the rest of the waterfront, the west side of the Commercial Street straightaway is beachfront with its guaranteed public access to the low-water mark, as well as tradition. Pavilion Beach is listed as a “public” beach in maps from the 19th century.

The opponents’ complaint, filed by attorney Daniel C. Hill, who also represented Fort residents and businesses at some of the overlay hearings, also alleges the council deliberations were a “sham,” fatally tainted by a “proponent” which made improper gifts, “directly or indirectly ... to at least two city councilors ... materially clouding their objectivity in voting on the merits of the petition” for the zoning overlay.

Co-plaintiffs along with Hold the Fort, Inc., the rallying cry and legal vehicle for defending the property against hotel development, are Laurel Elise Tarantino — the wife of James Tarantino, an outspoken leader of the Fort and Commercial Street resistance movement — and David Nathaniel Mulcahy, who lives on Middle Street, but has also been in the vanguard of the opposition.

Attorney Hill said Friday he did not have the names of the directors of Hold the Fort Inc., but said the organization is made up of “the hundreds of people who appeared at the hearings.”

The nonprofit Hold The Fort had not filed corporation papers as of Fri

day with either the state attorney general’s charitable division or the secretary of state’s corporations division, a check of those offices showed.

The suit names the city as defendant, but it is up to the developer to decide whether to press its request for special permits needed by the City Council and related approvals by municipal and and possibly state agencies. Cunningham and DeLorenzo have said they expect permitting to take to if not through the end of the year.

”We are definitely going ahead with the permitting process,” Cunningham wrote in a Friday email to the Times. “We are confident in the process and that the HOD will be upheld.”

“The position of the city is, we are undeterred,” Mayor Carolyn Kirk said Friday in an interview after being briefed on the suit by City Solicitor Suzanne Egan.

“The city will vigorously defend itself against this baseless lawsuit at the same time we will continue to encourage quality development such as Beauport (Gloucester’s hotel proposal) and the jobs and tax revenue they will bring to the city to ease the burden on the residential property taxpayers of the city.”

The suit makes a number of legal claims against the city.

One is the allegation that rezoning the property for a hotel violates the values of the city’s Harbor Plan and is accomplished by illegal “spot zoning,”

Another is that the council’s deliberative process was corrupted in multiple ways; one involves the allegation of gifts to “at least” two councilors in violation of the state Ethics Law, “materially clouding their objectivity in voting on the merits of the petition.”

The suit does not denote the alleged “gifts,” but claims the acti

ons represented a violation of the Equal Protection clauses of both the U.S. and Massachusetts constitutions.

The “spot zoning” allegation is at the legal center of the complaint, and frequently claimed in such litigation, but rarely upheld, due to the deference the courts afford municipalities in such cases.

”The court now favors a balancing test to assess a spot zoning challenge,” writes Mark Bobrowski, in his “Handbook of Massachusetts Land Use and Planning Law,” which is considered the authoritative text. “Changes to the neighborhood or area are certainly relevant and important facts, but they are not controlling,” and not necessary to justify a change in zoning classification, he writes.

”... Economic benefits accruing to a singled-out parcel do not require a finding of spot zoning where there are also benefits to the general public,” Bobrowski wrote. “As a legislative decision of local government, a zoning amendment is entitled to great deference by a reviewing court. Every presumption is to be made in favor of the bylaw.

“A city council,” he adds, “is empowered to amend a zoning ordinance when the character and use of a district or the or the surrounding territory have become so changed since the original ordinance was enacted that the public health, morals, safety and welfare would be promoted if a change were made in the boundaries.”

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