Court rules against developer on complex

By Nick Grabbe
Staff Writer

Published on November 09, 2007

The developer of a condominium complex on South East Street lost a court battle last month and will have to reduce the number of units he plans to build.

However, the ruling may not be the end of legal wrangling over the project.

Scott Nielsen wanted to build 24 units on seven acres just south of the Norwottuck Rail Trail and market them to people over 55. He said the residents would require few town services and the development could produce $150,000 in tax revenue per year.

But neighbors have vigorously opposed the plan. The Zoning Board of Appeals has scheduled 17 meetings on it since 2005.

The town owns 90 open acres adjacent to the land, donated by its previous owner when she received a permit to develop the seven acres Nielsen now owns. The ZBA should consider the donated land in its density calculations, Nielsen said.

But on Oct. 26, Chief Justice Karyn F. Scheier of the state's Land Court issued a summary judgment against Nielsen in a lawsuit he filed against the town. She ruled that Nielsen is not entitled to a special permit for 24 units based on an agreement town officials made with the previous owner.

In 1992, Town Meeting rezoned the land to a category that allowed a denser development, and the ZBA granted a permit for 25 units. Last spring, Nielsen said town officials are "changing the rules in the middle of the game."

The court ruling means Nielsen's plan "must be evaluated solely on the contents of the application and the provisions of the Amherst zoning bylaw," said Gary Brackett, the town's attorney.

Nielsen said he has not seen the court ruling and could not comment on it.

The zoning board has scheduled another hearing on the proposal Dec. 11.

The panel can deny his application for a special permit, because its density is too great for the site, said Christine Brestrup, the board's staffer. Or it could suggest that Nielsen withdraw his application, then refile it with a smaller number of units, she said.

As a result of the court ruling, the allowable number of units on the site is 17, she said. That would reduce the amount of annual tax revenue coming to the town by $50,000, Nielsen said.

The plan could wind up in court again after the ZBA finally rules on it, Brestrup said.

"Probably, whatever happens, someone will appeal," she said.