LENOX — A legal skirmish over the proposed Windrose Place development has flared up anew before the Zoning Board of Appeals.
After a contentious public hearing on the issue Oct. 14, the board ordered both parties to take a breather and submit arguments in writing before resuming the hearing next month. The ZBA will meet at 7 p.m. Nov. 18 on the matter.
But some town officials, as well as an attorney for the developer, have raised questions about whether opponents have standing to bring the complaints before the board.
Developer Nate Winstanley’s proposed $15 million project includes renovation of the 1790 Northrup House at 114 Main St., where Winstanley operated his marketing business for nearly 30 years, and construction of three new buildings with a total of 26 luxury apartments. One building would include street-level businesses or offices.
After the ZBA granted a special permit to the project in January, local architect Jim Harwood appealed the approval to Berkshire Superior Court. In his lawsuit, filed against the town and Winstanley in March, Harwood contended that the ZBA’s waiver allowing the project not to include several affordable housing units violated a town bylaw.
Lacking legal standing to pursue the case because he was not an abutter, Harwood encouraged two project neighbors, Charles Merritt and Maura Griffin, to join the lawsuit. But earlier this month, they settled with Winstanley in return for reconfigured driveway access and landscape improvements.
Superior Court Associate Justice Douglas Wilkins accepted the settlement and upheld the board’s decision to waive the affordable housing mandate, but he declined to toss out the appeal. Instead, he sent the case back to the ZBA to address Harwood’s other complaints involving buffers, parking and density.
Nearly 50 residents signed in to the ZBA’s Zoom meeting as the public hearing resumed, with Great Barrington attorney Peter Puciloski, representing Harwood, ticking off a litany of complaints about the proposal.
He asserted that the project, as previously approved by the ZBA, asked the board “to ignore every provision of the bylaw designed to protect abutters, and also ignores the density provisions that this town has found to be the upper limit of what should be allowed.”
He cited a 250-foot buffer requirement between the Windrose Place project and Franklin Street businesses because they include second-floor residential units. Puciloski stated that the project’s site plan includes a “zero buffer.”
He also claimed there were density violations involving the buildings proposed for the development, and insisted that the project must meet an extensive list of buffer zone and parking space requirements described in town bylaws for all zoning districts and residential multi-family developments.
ZBA member Albert Harper, one of three attorneys on the board, asked that the new complaints be submitted in writing.
“I had requested an itemized list of each thing you were concerned about, and you haven’t submitted that to us,” he said.
Board Chairman Robert Fuster Jr. backed up Harper, proposing that the hearing be delayed so both sides could submitted written briefs in advance. He also asked Puciloski to specifically identify who else he is representing besides Harwood, and explain “how they have standing and how you have the authority to raise these issues on appeal.”
And Gwen Miller, the land use director and town planner, said that based on her consultation with Town Counsel Joel Bard, Harwood does not have legal standing to pursue his original appeal, a point supported by Fuster. Any new issues would require a new appeal, Miller said.
But Puciloski insisted that anyone can comment on a plan at a public hearing, and told Fuster that “there’s no reason it should be restricted to parties known to you.”
He also alleged that Harwood and Merritt had been targeted for retaliation and intimidation, making it understandable that other people objecting to the plan would be reluctant to be publicly identified.
Fuster emphasized that the board would hear arguments only on issues listed in the Superior Court order, called a remand, sending the dispute back to the ZBA for further discussion.
Pittsfield attorney William E. Martin, Winstanley’s attorney, asserted that the court order does not allow new parties to become involved in the case.
“Mr. Harwood absolutely does not have standing. He will be dismissed from the case, and his continued prosecution of the case, knowing he lacks standing, is completely disingenuous,” he said.
In a followup with The Eagle, Miller, the town planner stated: “A plaintiff with no legal standing seems intent on blocking a project, and having failed the first time round, is still throwing spaghetti at the wall to see what will stick.”