LENOX — In an effort to delay or revise a major residential and commercial downtown development, local architect James Harwood has appealed the Zoning Board of Appeals' unanimous site plan and special permit approval of the Windrose Place project.
Harwood, representing himself as a member of the Lenox Planning Board, filed the complaint Wednesday in Berkshire Superior Court, naming the five defendants of the ZBA as well as Nathan and M. Kathryn Winstanley.
Attorneys representing the Winstanleys and the town told The Eagle on Friday that they will seek swift dismissal of the complaint on the grounds that Harwood lacks legal standing to file the appeal, as he is not an abutter to the project.
The high-end concept by retired marketing executive Nathan Winstanley calls for an outside developer to execute the design plan for his 3.26-acre property at 114 Main St. It calls for 26 luxury residential units in three new buildings and in the 1790 Northrup House, which would be renovated. A fourth building would house ground-floor businesses and several second-floor apartments.
The ZBA approved the plan Jan. 28 and also voted 4-1 to exempt the project from a provision in the town's affordable housing bylaw that would have required the development to include either two moderately priced units or a payment of $400,000 to the town's Affordable Housing Trust, representing the cost of building those affordable apartments.
In his appeal, Harwood contended that no economic data was provided to demonstrate financial benefits for the town, and he argued that no plan was offered proving that the number of residential units met the maximum allowed in the residential zoning district.
He also cited various technical "errors, inconsistencies, insufficiencies and omissions" in the application presented by Winstanley and approved by the zoning board. He also alleged "contradictory testimony" by the applicant involving the economics of the project.
He claimed that the Zoning Board's decision is "erroneous, arbitrary and capricious" and is "legally untenable, unreasonable and whimsical."
Writing that he, as the plaintiff, is "personally aggrieved by the decision," Harwood asked the court to reverse the approval or send the application back to the ZBA to reopen the public hearing in order to require Winstanley to provide affordable housing units or payment according to the town bylaw.
At a meeting this month, after the ZBA's approval of the project, the Planning Board discussed the issue, but "it was clear that a majority of members would not vote to initiate an appeal, so we did not proceed with a vote," said Planning Board Chairwoman Pam Kueber.
Winstanley deferred comment to his attorney, William E. Martin of Martin and Oliveira in Pittsfield.
In an emailed statement to The Eagle, Martin asserted that Harwood "must know he does not have standing to appeal."
Expressing disappointment over the court filing, Martin pointed out that "standing is an important legal concept that requires a party to have a unique personal interest in a legal case. In zoning cases, abutters have that kind of an interest, but Mr. Harwood is not an abutter."
While other municipal boards have the right to appeal, Martin added, individual members of other boards do not. And, he argued, "even if Mr. Harwood had a right to appeal, his appeal has no merit. The Zoning Board carefully considered the Winstanley project. It conducted two nights of public hearings and conducted a site visit."
Martin noted that the board "fully reviewed the requirements of the Zoning Bylaw and had a rigorous debate over the issue of the affordable housing requirement. The Board listened to the comments from community members and the Planning Board. In the end, it granted the petition and imposed a number of conditions that the Winstanleys accepted."
Representing the Zoning Board defendants, Town Counsel Joel Bard of KP Law in Boston told The Eagle via email that, in his opinion, "the plaintiff does not appear to have standing. Being a Planning Board member does not confer standing. The most expeditious recourse would be to file a motion to dismiss."
Martin, noting that he has been in contact with Bard, stated that he fully expects the town to join in a motion in Berkshire Superior Court to dismiss the appeal. Such motions typically take several months for the court to issue a ruling.
"Mr. Harwood simply disagrees with the Board's conclusions," Martin asserted. "He clearly voiced his opinions at the public hearing. His view did not represent the position of the majority of the speakers. His complaints about the project were considered and soundly rejected by the Zoning Board."
Martin also wrote that "We are equally confident that his appeal will be dismissed by the Court, both because he has no right to file it, and also because he has no right to expect that his judgment reflects the interests of the Lenox community more than the very experienced members of the Zoning Board of Appeals."
In an email interview, Harwood emphasized his strong feelings "about the importance of affordable housing in Lenox. I grew up in a rent-controlled apartment, and believe affordable housing is a crucial component of an economically diverse community."
He also stated that he is "well-versed in the Lenox Zoning Bylaw in general and this project in particular, having attended several of the meetings."
Asked why he had decided not to have a lawyer prepare his appeal, Harwood responded that he has consulted an attorney who specializes in zoning cases, "and we both felt it was appropriate I represent myself at this point."
Acknowledging that he likely will need the services of an attorney as the case proceeds through the court, Harwood said that he will "encourage all Lenox residents who share my commitment to affordable housing to show their support and contribute to the legal costs."
Doubling down on his commitment to the appeal, Harwood declared: "I am very discouraged by the application which chose to ignore the inclusionary housing requirements, and by the ZBA's decision, which is flawed in numerous ways big and small."
Clarence Fanto can be reached at firstname.lastname@example.org, on Twitter @BE_cfanto or at 413-637-2551.