Housing allowed by court

BY Nick Grabbe
Staff Writer

Published on June 22, 2007

A long and bitter legal struggle over low-income housing on the edge of the Orchard Valley neighborhood in South Amherst has ended in the defeat of opponents of the project.

Developer Peter Gagliardi said he's happy that after a five-year delay the 27 rental units can be built next year. Neighbors perceived the project as a threat, he said, and mounted "the most extensive opposition of all the 40 projects we've done in western Massachusetts."

Irv Rhodes, of Pondview Drive, one of the neighbors challenging the plan, said that Orchard Valley residents would have preferred condominiums to rentals and felt they weren't included in the decision-making process.

"Now it's done, we've been given our day in court, and all we can do is work with the results of that," Rhodes said. He said he expects that Orchard Valley will "make the people feel part of the neighborhood."

HAP Inc., a regional housing partnership, applied to the Zoning Board of Appeals in 2001 for a comprehensive permit, which can override existing zoning rules. After numerous hearings and revisions, the ZBA voted unanimously to issue the permit in 2002.

Typically, these permits are awarded in towns that have not met the state's 10 percent threshold of affordable housing. HAP argued that even though Amherst had met this obligation, there was an unmet regional need. The ZBA heard testimony that the vacancy rate in Amherst was 1 percent, and that there were 870 families on the Amherst Housing Authority's waiting list, causing a three-to-six-year wait for an affordable unit. The ZBA noted a report saying that a person earning minimum wage would have to work 97 hours a week to afford a two-bedroom apartment.

A group of 26 neighbors filed a complaint in Massachusetts Land Court, where cases are so backed up that they can take years to decide. They argued that the ZBA exceeded its authority and maintained that the project had an unconstitutional racial quota by setting aside 20 percent of the units for minority households.

In 2005, a Land Court judge upheld the ZBA's action, concluding that a local board can override restrictive zoning laws even if a town has satisfied affordable housing requirements. The neighbors appealed to the Supreme Judicial Court, which last week upheld the Land Court decision.

"A municipality's attainment of its minimum affordable housing obligation in many cases does not eliminate the need for affordable housing within its borders," the court wrote in its decision. "Local autonomy is not compromised."

Gagliardi, HAP's executive director, said he will seek financing over the next six months. He hopes the project on Longmeadow Drive near West Street will be under construction at this time next year. It will have nine three-bedroom apartments, 14 two-bedroom apartments, and three one-bedroom apartments. Seventy percent of the units will be set aside for people who live or work in Amherst.

HAP paid $235,000 for the property and has since then spent $100,000 on legal fees and at least $50,000 on property taxes, interest and insurance, Gagliardi said. "It should not impact the affordability of the property, but it will require that we work extra hard on financing to cover all the costs," he said.

"I'm pleased that our understanding of the statute was upheld, but I continue to have concerns about our relationship with the neighborhood, which has been strained by this process," Gagliardi said.

Orchard Valley is a neighborhood of about 270 modest single-family homes. The renters who live in the new complex, to be called Butternut Farm, will have less of a stake in the neighborhood than condominium owners would have, Rhodes said.

"Not owning means perpetuating poverty rather than trying to get people a way to establish home ownership," he said. The money invested in the project could be better spent "to improve people's lives so they can become part of the process," he said.

Rhodes said he is also concerned about the impact of the children who will live there on Crocker Farm School, which already has the highest proportion of low-income pupils.

HAP "dug in its heels" on the project, he said.

"But I don't feel any strain or animosity," he said. "HAP did what they needed to do. We all have to work together to make the best of the situation."

John Garber, a Northampton attorney who represented the neighbors, said their legal options are now exhausted. "I think we're pretty much at the end of the road," he said.

The development should have been in accordance with the existing zoning rules, he said. "We recognized that low- and moderate-income housing is more difficult to build if you comply with the zoning laws, but it's not impossible," he said.