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Judge upholds housing lawsuit, says site plan is needed
By Kevin Mullaney
Banner Correspondent
TRURO — Hopes for a 14-unit affordable housing project off Standish Way in North Truro hit an unexpected snag with a decision last week by Judge Gary Nickerson of the Barnstable County Superior Court in a lawsuit aimed at halting the project. Nickerson upheld the lawsuit of the Boespflug Realty Trust, vacating the September 2005 decision by the Truro Zoning Board of Appeals that granted a special permit to build the project, and remanded the matter back to local boards for a site plan review.
“It was a peculiar situation,” said Ted Malone, director of Community Housing Resource Inc., the firm who would develop the project. “It was remanded back for a site plan review but was silent on other issues. Unfortunately, [the decision] opens up another appeal period, after a three-year delay.
“It was a procedural issue that the town didn’t know,” Malone said of the special permit requirement. “The overlay district was created to simplify things. The special permit criteria tripped us up.”
Fred Gaechter, chair of the Truro selectmen, was also surprised that after three years the decision came down to the lack of a site plan review, which is done by the planning board, not the ZBA. The ZBA then consults the planning board’s approved site plan in considering the special permit.
The project was controversial from the start. Called Truro Homes, the proposal is for seven separate structures with two apartments each, located on the same town-owned lot as the new library and community center, now under construction. It is located in the affordable housing overlay district created for such a use, and there have been two lawsuits filed by the Boespflugs, abutters and owners of Babe’s Restaurant on Shore Road.
The first time the ZBA approved the project, the Boespflugs filed suit over several issues, including that the 14-unit development exceeded the 12-unit maximum contained in the town’s zoning regulations for the affordable housing overlay district. Town Meeting later amended the bylaw to allow up to 16 units if the developer obtains a special permit from the ZBA. Malone went back to the zoning board in September 2005 for a hearing. Packed with residents on both sides of the issue, including the “Committee to Save North Truro,” a group created to oppose the project, several issues were raised — issues such as traffic and density, the loss of trees and rural character, septic issues and the project’s impact on drinking water in the area. In the end, the ZBA voted unanimously to grant the special permit, a determination that the permit would not be substantially detrimental to the neighborhood. The Boespflugs then filed their appeal to the court. The ZBA decision was defended by Peter Freeman, Malone’s attorney, and Truro town counsel Jamie Veara.
The summary judgment was narrowed to four issues, all of which pertained to whether the zoning board exceeded its authority in granting the special permit. The contention by the Boespflugs that the planning board was required but failed to conduct a site plan review was agreed to by the court, citing the Truro zoning requirement that the planning board forward its findings to the ZBA for special permits.
“This court disagrees with the defendant’s assertion that the planning board did not need to complete a site plan review,” Nickerson wrote, calling the project “a new use for the site which triggers the need for more than five parking spaces and has the potential for detrimental impact on the Boespflug property.” The court remanded the application back to the town boards, saying the planning board must do a site plan review for the ZBA to then consider in its deliberations
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Oct 25th, 2007