Town Loses Appeal of Bird-Property 40B

A state appeals court has denied the town's appeal of an earlier decision that it must issue a permit for a 200-unit condo project on contaminated land off Marshall and Prentice streets, bringing one of the longest-running local residential development sagas a major step closer to a conclusion. 

In a decision released Friday, the state appeals court upheld earlier decisions requiring that the town issue a permit to Cedar Ridge Estates, which was first proposed in 2005 on the Bird property--53 acres of land that had become contaminated under previous ownership, when uses included a tire dump and a mink farm.    

"It's been a long, long haul for me," said J. Michael Norton, the owner of Green View Reality, which formed to build the project.  He said after several years of battles before local boards and in state court that he continues to believe that the project "was the right thing for the town from the very day I took it on."

Norton said the town has the option of asking the court for clarification on some points, but otherwise legal manuevering may be drawing to a close. He said he plans to pay any back taxes on the property and begin advancing the project through the Conservation Commission.

The state has ordered that local review be limited to state wetlands regulations--the town had used the project's non-compliance with local wetlands bylaws, which are more stringent, as one of its reason for denying the permit. But the court found the town failed to prove that waiving those rules would cause harm to the community.  

"We've got about a year's worth of work before we can think about getting a building permit," Norton said. 

Town Administrator Paul LeBeau said he had not yet seen the decision when reached for comment Friday. 

The saga began when the town asked developers to submit proposals to help recoup costs spend cleaning the property. After 18 months of local hearings and review, the Zoning Board of Appeals denied the comprehensive permit requested by Green View Realty in 2006. 

Under the provision of Chapter 40B, projects that include at least 25 percent affordable housing are entitled to a streamlined local permitting process under which the ZBA can be asked to waive local rules and regulations, including zoning restrictions and local wetlands bylaws. 

Green View appealed Holliston's denial of the comprehensive permit to the Housing Appeals Committee, which overturned the decision in January of 2009 and ordered the town to issue a permit within 30 days. Holliston appealed that decision, leading to the decision this week from the Supreme Judicial Court. 

Existing contamination on the site was a major concern for local residents and officials, but in the decision, the court wrote that it agreed with the Housing Appeals Committee that the ZBA "exceeded its authority in relying on environmental issues to deny the comprehensive permit." 

It also said the town failed to prove that any harm done by allowing waiver of local wetlands bylaws would outweigh the local need for affordable housing. By the state's count, less than 4 percent of Holliston's housing stock meets the definition of affordable. 

"The board must show that the impacts on the local wetlands outweigh the local need for affordable housing and it quite simply made no effort to do so," the court wrote. 

For his part, Norton, who ran unsuccessfully for the Board of Selectmen in May, still sees the project as his "field of dreams." 

"My vision it to build the most scientifically and technically advanced and environmentally sound and sustainable project in the whole of New England and to build that in Holliston and be able to say that we took a wasted piece of property and built progressive housing that could be an example for everybody," he said.