Court dismisses appeal over affordable housing units in Northampton

  • The entrance to Emerson Way housing development off Burts Pit Road in Northampton, seen in 2014. STAFF FILE PHOTO/KEVIN GUTTING

Staff Writer
Published: 2/9/2019 12:16:50 AM

NORTHAMPTON — A controversial plan to move affordable housing units out of a mixed-income development may not be dead yet.

An appeal by five residents of the Burts Pit Road area seeking to vacate a Planning Board decision allowing the move was dismissed on the grounds that the litigants missed the deadline to file with the city clerk.

The decision in Hampshire Superior Court leaves a path for Emerson Way LLC to move six of the affordable housing units it is currently obligated to build at the Emerson Way development to Burts Pit Road.

As Richard Madowitz, Emerson Way’s current developer originally proposed the project, Emerson Way LLC would partner with Habitat for Humanity to build the units in the Burts Bog development, where Habitat was already planning to build three units.

When Madowitz made his case before the planning board on July 26 and got conditional approval, he had not gotten Habitat to sign on. Later, after Habitat for Humanity decided to not back the project, Madowitz said that Emerson Way LLC was evaluating its options.

In court, the plaintiffs argued that the notice posted before the July 26 Planning Board meeting did not mention Burts Pit Road as the destination for the relocation of the units.

“We have a right to go to a hearing to argue our position,” said plaintiff Barry Roth. “We were denied that right.”

The motion to dismiss was brought forward by attorney Michael Pill on behalf of Emerson Way LLC and Madowitz on Jan. 28.

Roth, a computer programmer who is not an attorney, was the main plaintiff who spoke before the court.

Roth said the appeal was intended to get the Planning Board’s decision vacated and for the board to hold another hearing so the issue could be reargued and the plaintiffs could make their case against it.

Judge Daniel Ford ruled on Jan. 31 that they had missed the 20-day filing deadline.

“This is a matter of subject matter jurisdiction,” Ford said in the motion hearing.

Roth and his fellow litigants filed a motion for reconsideration on Thursday, and Roth said that he will appeal the ruling if the motion for reconsideration is not granted.

“Where there is a defect in notification you have 90 days,” Roth said.

Pill said the 90-day filing period applies to zoning appeals, not subdivision appeals like the one filed by Roth and his fellow plaintiffs.

Prior to the ruling, Pill said that he did not know if Madowitz wishes to go forward with the relocation and that he hasn’t discussed it with his client.

“We haven’t gotten to that question,” Pill said. “At least that door is open to try to pursue it.”

When asked about his plans, Madowitz deferred to legal counsel.

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