Judge's nudge: Reach 'stipulation' to avoid trial over ZBA decision on Windrose Place

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LENOX — A major downtown development plan remains mired in legal limbo after a judge declined to dismiss a challenge to the project's approval.

A Berkshire Superior Court judge this week rejected the developer's request for dismissal, and both sides appear poised to return to the Zoning Board of Appeals to try to resolve concerns over the board's approval process.

The proposal by retired marketing executive Nathan Winstanley calls for an outside developer to design a high-end, mixed-use residential and commercial project called Windrose Place on his 3.26-acre property at 114 Main St. The estimated cost of the development is $15 million, Winstanley told The Eagle.

The project, approved unanimously by the zoning board Jan. 27, calls for 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.

But, Planning Board member and local architect James Harwood, representing himself and not the board, filed a court appeal against the ZBA and Winstanley in February, though he is not an abutter to the site. Harwood's major objection at the time was that the ZBA voted 4-1 to exempt the project from inclusion of affordable units.

Without the waiver, the town's affordable housing bylaw would have required the developer 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 written appeal, Harwood also contended 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 ZBA meeting in January ahead of the vote to approve the plan, 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.

"Based on the testimony I've heard, this proposal has an enormous number of benefits to the entire town," he said, calling it "a major stimulus to the north end of the historic downtown district. The project will be a new infusion of capital, both monetary and human talent, into the community to benefit all of us."

Harper predicted that year-round residents of the development would take advantage of downtown amenities while stimulating "the largely unknown, underutilized commercial structures" along Franklin Street, off Main Street, and he depicted the project as a "bonanza" for already-established downtown restaurants and other businesses.

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

Learning that he might not have legal standing to appeal the ruling because he does not reside adjacent to the site, Harwood added two abutters, Charles Merritt and Maura Griffin, to the appeal, which cites Nathan and M. Kathryn Winstanley and five ZBA members as defendants.

At a Berkshire Superior Court teleconference Tuesday, Associate Justice Douglas Wilkins of the Massachusetts Superior Courts, normally based in Boston, declined to dismiss the appeal.

But, he urged the two sides to try to reach an agreement called a "stipulation" to send the case back to the ZBA for clarification, review, revision or a possible rewrite. The alternative would be a Superior Court trial expected next March, at the earliest, because of a backlog of criminal cases that take priority over civil disputes.

The phone conference included Pittsfield attorney William E. Martin of Martin & Oliveira, representing the Winstanleys; Lenox Town Counsel Joel Bard of KP Law in Boston, on behalf of the ZBA defendants; and attorney Peter Puciloski of Lazan, Glover, Puciloski in Great Barrington, representing the three plaintiffs who filed the appeal.

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Martin told The Eagle that it appears the affordable housing issue is off the table because it's a policy matter under the control of the ZBA.

Martin described the phone conference as "incredibly productive," noting that it was "more of a dialogue, a conversation with the judge" than would be typical of a more formal, in-person court hearing.

He said it's unlikely that the court would dismiss the case, as he requested, over a procedural issue involving the addition of Merritt and Griffin to Harwood's appeal.

The major issue now, in Martin's view, is the zoning board's approval of a project that falls 5 feet short of the normal 200-foot buffer zone protecting neighborhood residential homes. Using a 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.

That's one of the issues needing clarity if the appeal is sent back to the zoning board for a review, Martin said. He said Wilkins, seeking to move the case forward, suggested that "it wouldn't make sense to go to trial."

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A better solution, as Martin interpreted the judge's proposal, is to "seek more guidance from the board, bringing the case back to them to further elaborate on their reasoning and make a more detailed decision."

If that happens, a potential agreement by both sides to seek further guidance from the ZBA would be returned to Wilkins by mid-August and, if he agrees, the case would land back in the hands of the zoning board.

Winstanley voiced frustration with the ongoing legal maneuvering.

"I feel like it's a waste of time and of money the town and I are spending unnecessarily, and the time delay is troublesome," he told The Eagle.

Puciloski, the attorney representing the three clients pursuing the appeal, stated that "the hearing went pretty well for us; it's unlikely the judge would dismiss the case."

He agreed with Martin and Town Counsel Bard and with the judge's suggestion to send the case back to the zoning board. Puciloski acknowledged that, pending consultation with his clients, he is considering an agreement not to pursue the affordable housing issue. But, he pointed out that "we want to talk about all of our other issues."

He emphasized that "we want the ZBA to reopen the public hearing so we can present new evidence. We'll go through everything in Harwood's affidavit and potentially some other issues."

"We need a formula that lets us argue the things that are important," Puciloski said.

"It's a very slow and laborious process," Harwood said. "But, it's a very important project, and I'm glad the judge is taking seriously."

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


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