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State’s highest court clears way for Sugarbush Meadow apartments in Sunderland

The state Supreme Judicial Court in Boston has ruled in favor of Sugarbush Meadow LLC, ending court battles between the town and developer Scott Nielsen of Amherst.

“The project will proceed,” Sugarbush Meadow attorney Peter L. Freeman said Monday.

The construction start date and the question of whether additional local permits are required still need to be determined, Freeman said.

In July, Nielsen sold the land to Bourey LLC, a limited liability company managed by Paul D. Boudreau of South Hadley and Gerard N. Aubrey of Holyoke. A spokesman for Bourey LLC, could not be reached for comment.

In September 2006, Sugarbush Meadow filed for a comprehensive permit under Chapter 40B to build a 150-apartment complex on Route 116 and Plumtree Road in Sunderland. Chapter 40B encourages the building of affordable housing and streamlines the local permitting process for developers.

The Sugarbush Meadow project promised 25 percent of the apartments would be subsidized as affordable housing. The local Zoning Board of Appeals, however, denied Nielsen’s application in January 2008, setting off nearly a decade of appeals and court cases.

On Monday, the state Supreme Judicial Court affirmed the ruling of the Housing Appeals Committee, which ordered the local zoning board to issue a comprehensive permit to the developer in 2008.

The local zoning board claimed the Housing Appeals Committee made five errors when it directed the board to issue the permit to Nielsen. The Supreme Judicial Court, the highest court in the state, however, rejected all of the zoning board’s claims.

The local zoning board argued that the availability of low-cost, market-rate rental housing in town should be considered in determining the region’s need for low- and moderate-income housing. It asserted that 83 percent of rental housing in Sunderland is leased at affordable rents, even though it is not subsidized by the federal or state government.

According to the Supreme Judicial Court, however, state law defines low or moderate income housing as any housing subsidized by the federal or state government.

According to the state Subsidized Housing Inventory, there are only six affordable housing apartments in Sunderland, less than 0.4 percent of the town’s overall housing stock.

Under Chapter 40B, if a town has less than 10 percent affordable housing, proposed developments may get expedited approval by its zoning board if at least 20 to 25 percent of the dwellings in that project qualify as affordable.

The six towns in the region —Amherst, Deerfield, Hadley, Montague, Whately and Sunderland — in total have less than nine percent affordable housing stock. Within the six towns, there are 434 residents waiting for public housing, with a wait between two and five years for family apartments.

The Sunderland zoning board argued that the safety of future Sugarbush Meadow occupants outweighs the regional need for low and moderate income housing and that the Housing Appeals Committee did not have enough evidence to prove otherwise.

Fire Chief Robert Ahearn said the town lacks equipment to reach the roofs of the 42-foot high buildings proposed in the project. The town does not have a ladder truck and its highest ground ladder reaches only 35 feet, he said.

The Supreme Judicial Court, however, ruled that the Housing Appeals Committee reasonably concluded that the risk to residents was minimal in light of the advanced sprinkler system to be installed in the building.

The court also brushed aside the town’s argument that the project would be a financial burden by increasing the population and overall housing stock by nine percent, thus requiring Sunderland to hire two additional police officers and two more firefighters. The complex would increase the school population by 54 children, according to the zoning board.

In its denial of the permit, the zoning board said that Sugarbush failed to provide proof that its project would be in compliance with the local wetlands bylaw, which does not allow construction within 100 feet of a wetland unless permitted by the local conservation commission. The Supreme Judicial Court and housing committee have both ruled the town has not proven wetlands damage would occur and failed to show local wetlands concerns outweigh the regional need for housing.

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