Builder sues councilors over condo denial

Staff file photo/Bevilacqua Company Inc. is asking the state Land Court to clear the way for it to construct two buildings with four units each on the property at 116 East Main St. where Espresso's restaurant operated.

The developer behind plans to build condominiums on the site of the former Espresso Italian Grille in East Gloucester is asking the Massachusetts Land Court to overturn a City Council denial of a special permit and let the project go forward.

Calling the council's denial "unreasonable," "capricious," "arbitrary" and even "whimsical" in its challenge, the Wellesley-based Bevilacqua Company Inc. maintains it met all the requirements that should have cleared the way for approval of its special permit requests aimed at constructing two buildings with four units each on the property at 116 East Main St.

The building on the site also once housed the Harbor House restaurant, but has essentially been vacant since Espresso filed for bankruptcy and closed its doors in 2015. The 0.68-acre property, currently held by Son LLC of Beverly, is assessed at $557,900, city records show. Bevilacqua has a purchase-and-sale agreement to acquire the property. 

In its filing, developer Paul Bevilacqua and his colleagues ask that the court "annul" the council's 5-3  denial of a special permit the company needs to allow an eight-family use -- not just a three-family allowance granted by right and utilized for three apartments in the past. The challenge also seeks to annul the council's rejection of a change in the required lot area per unit, the spacing required between the two proposed buildings and the need to reduce the open space required for each building.

The action, filed by attorney Arnold E. Cohen of Sharon, targets each of Gloucester's nine city councilors as defendants. The proposal had gained approval from the Zoning Board of Appeals and unanimous backing from the council's three-member Planning and Development subcommittee. But it was rejected on a 5-3 vote by the full council, with Melissa Cox, Steve LeBlanc and Jennifer Holmgren voting for approval while Scott Memhard, Sean Nolan, Jamie O'Hara, Paul Lundberg and Val Gilman stood opposed, with Ken Hecht absent.

Gilman and Council President Lundberg had joined Holmgren in voting for the proposal at the Planning and Development meeting, but changed their tune when the final vote came following a council public hearing, where a majority of speakers opposed the development plans. 

Gilman said Tuesday she didn't want to comment on the case or the court filing, giving that it is now in litigation.

"I certainly read it closely," she said of the legal challenge, "but I really don't want to comment and create any problems."

Gloucester attorney Sal Frontiero, who has represented the Bevilacqua Company throughout its push for the project, said Tuesday he stands "100 percent" behind the filing aimed at overturning the council vote and letting the project move ahead. Frontiero has noted previously that the developers have made accommodations to neighbors who intensely opposed the project, reducing its density from 10 to eight units and scaling back its height to comply with city guidelines.

"I'm optimistic," he said, noting that the Land Court has placed the case on its docket for a management conference on Dec. 5. "They put it on the fastest track they have. That's good."

In the court filing, Bevilacqua and Cohen claim that the council's decision was based on "legally untenable grounds" and that the council "fails to address why it rejected the recommendation of the Planning and Development Committee."

"The decision provides no rationale for the denial," the filing says, adding that "the council considered that more persons at the public hearing opposed the application than favored it."

One of those opponents and neighbors, the Rev. Richard Emmanuel, said Tuesday he and some colleagues — including Henry Ferrini of the nearby Gloucester Writer's Center — have met to consider their options and concerns. One concern is that development of a condo project on the Espresso site will open the door to more development up the hill behind the property toward East Gloucester School, and perhaps the school site if the city abandons it and builds a new East Gloucester school as proposed on the site of Veterans Memorial School and Mattos Field.

"This shows the big picture and the scale of the project," Emmanuel said. "That whole hill can be up for sale. This is exactly what we feared would happen, and it's a matter of gentrification where the community loses control of development.

"Gloucester is still an eclectic working community, and we believe that there's still the possibility of finding a mutual solution that would accommodate a quality East Gloucester," Emmanuel added. He would prefer the project focus on three single-family residences as already permitted. "That would be in keeping with the East Gloucester we know today, but I fear we will be losing that (if the condo project goes through)."

The Land Court filing indicates that the lot area per housing unit may not be an issue if the council determines such a project "is in keeping with neighborhood character and structural density." It also indicates that Bevilacqua's plan provides for 11,836 square feet of open space — "an improvement over the 9.996 square feet of open space presently existing on the parcel." 

In its conclusion, the challenge asks the Land Court to issue an order calling for the council to go back and "approve Bevilacqua's application for the four special permits, without conditions," and that the court grant "other further relief deemed just." 

The filing represents the second major legal challenge the council is facing over one of its recent land development votes.

In October, an Essex Superior Court judge threw out a special permit that the council had granted to a New Hampshire man two years ago to build a new house on 9 1/2-foot pilings along Wingaersheek Road.

In that case, Judge Salim Rodriguez Tabit granted a motion for summary judgment sought by Ann Marie Lindquist, a neighbor to a house proposed by Lawrence Costa that — as planned — would required a height variance to accommodate the stilts to meet FEMA coastal flood building regulations.

Ray Lamont can be reached at 978-675-2705, or rlamont@gloucestertimes.com.

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