Judge kicks project back to Lenox ZBA, but affordable housing waiver stands

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LENOX — A major downtown mixed-use residential and commercial development plan proposed by Nate Winstanley is heading back to the Zoning Board of Appeals for a new look after a recent court order.

In a ruling dated Aug. 17, Superior Court Judge Douglas Wilkins rejected the Winstanley team's request to dismiss a challenge to the board's approval of the project. The judge also tossed out a portion of the appeal that challenged a waiver exempting the project from an affordable housing mandate.

Wilkins asked attorneys for the parties involved to reach a stipulation agreement setting terms for sending the case back to the ZBA for a more detailed explanation on the technical details of its decision. That agreement was signed by all attorneys in the case, returned to the court and approved by the judge.

Among the issues that remain to be hashed out are parking and setback technical details, which the ZBA then will review and expand upon for a supplement to its original approval of the plan.

The estimated $15 million project calls for an outside developer to design the high-end, mixed-use residential and commercial project called Windrose Place on Winstanley's 3.26-acre Main Street property known as the 1790 Northrup House, the former site of his marketing firm.

It would include 26 luxury residential units in three new buildings and in the existing 1790 Northrup House, which would be renovated. A fourth building, at Main and Franklin streets, would house ground-floor businesses and several second-floor apartments.

Local architect Jim Harwood, joined by two abutters, had appealed the ZBA's unanimous approval, citing issues including a waiver that exempted the project from required inclusion of at least two affordable housing units.

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But, Wilkins' ruling takes the issue of the affordable housing waiver off the table.

"The review will be focused on the more technical complaints about setbacks and parking," said William E. Martin, representing Winstanley.

He expects the board to take up the case again at a September or early October public hearing, which would be limited to those topics.

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The remaining setback issue based on town zoning bylaws is that the approved project falls 5 feet short of the normal 200-foot buffer zone protecting neighborhood residential homes. Using the Harwood group's different measurement, the appeal contends that only 5 feet separate the edge of the project from commercial buildings on Franklin Street, some of them containing second-floor apartments.

In his court order, Wilkins suspended the defendants' request to dismiss the lawsuit filed by Harwood's team against the Winstanley team and the ZBA until Dec. 15, or earlier, whenever the ZBA issues a revised or expanded decision.

Martin predicted that the zoning board would attach supplementary findings to its original 5-0 decision reached at a public hearing Jan. 27 endorsing the downtown development and, by a 4-1 vote, exempting the project from the affordable housing town bylaw requirement.

The agreement states that the zoning board "retains the power and authority to revise or amend any provision of the original decision, except with respect to the waiver of the inclusionary housing requirement which shall remain in effect."

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According to the agreement, within 20 days after the ZBA files its expanded decision with the court, both sides in the dispute can file for dismissing the case or file objections to the revision, leading to a case management conference at the court and a potential trial.

Harwood's initial appeal, joined by abutters Charles Merritt and Maura Griffin, focused on the affordable housing issue, now a moot point.

He also argued that no economic data was provided by Winstanley to demonstrate financial benefits of the development for the town. He also cited alleged "contradictory testimony" by the applicant involving the economics of the project.

At the January ZBA meeting, board member Albert Harper called the proposal "enormously valuable, important and transformational" as a boon not only for downtown businesses, but also for the entire town, thanks to a projected infusion of $200,000 to $250,000 a year in new tax revenue.

But, Harwood contended that the zoning board's approval was "erroneous, arbitrary and capricious" and is "legally untenable, unreasonable and whimsical."

Clarence Fanto can be reached at cfanto@yahoo.com, on Twitter @BE_cfanto or at 413-637-2551.


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