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Sugarbush Meadow gets nod from state Supreme Court

SUNDERLAND — The town will likely soon see a 150-apartment affordable housing complex on Plumtree Road.

The state Supreme Judicial Court in Boston has ruled in favor of Sugarbush Meadow, LLC, ending a six-year court battle between the town and developer Scott Nielsen of Amherst.

Sugarbush Meadow attorney Peter L. Freeman confirmed the project “will be developed.”

“The project will proceed forward,” Freeman said Monday.

The construction start date and whether Sugarbush requires additional local permits still need to be determined, Freeman said.

Nielsen did not wish to comment on the project and court ruling Monday, because the 67-acre property had changed hands this summer, Nielsen said. In July, Nielsen sold the land to Bourey LLC, a limited liability company managed by Paul D. Boudreau of South Hadley and Gerard N. Aubrey of Holyoke. Bourey LLC, could not be reached for comment Monday.

In September 2006, Sugarbush Meadow filed a comprehensive permit under Chapter 40B to build a 150-apartment complex on Route 116 and Plumtree Road in Sunderland. Chapter 40B encourages the building of affordable housing and streamlines the local permitting process for developers. The Sugarbush Meadow project promised 25 percent of the apartments would be subsidized as affordable housing. The local Zoning Board of Appeals, however, denied Nielsen’s application in January 2008, setting off nearly a decade of appeals and court cases.

On Monday, the state Supreme Judicial Court affirmed the ruling of the Housing Appeals Committee, which ordered the local zoning board to issue a comprehensive permit to the developer in 2008.

The local zoning board claimed the Housing Appeals Committee made five errors when it directed the board to issue a comprehensive permit to Nielsen. The Supreme Judicial Court, the highest court in the state, however, rejected all five of the zoning board’s claims.

The local zoning board argued the availability of low-cost, market-rate rental housing in town should be considered in determining the region’s need for low and moderate income housing. The town argued that 83 percent of all existing rental housing in Sunderland is rented at affordable rents, even though they are not subsidized by the federal or state government. According to the Supreme Judicial Court, this assertion does not follow state law, which defines low or moderate income housing as any housing subsidized by the federal or state government.

According to the state Subsidized Housing Inventory, there are only six affordable housing apartments in Sunderland, less than 0.4 percent of the town’s overall housing stock.

The town has been stuck at a 0.4 percent affordable housing rate, falling below the state’s 10 percent recommendation. According to state law Chapter 40B, if a town has less than 10 percent affordable housing, housing developments may get expedited approval by its zoning board if at least 20 to 25 percent of the dwellings in that development qualify as affordable.

The six towns in the region —Amherst, Deerfield, Hadley, Montague, Whately and Sunderland — also have a total of less than nine percent affordable housing stock. Within the six towns, there are 434 residents waiting for public housing, with a wait between two and five years for family apartments.

The town zoners argued the safety of future occupants of the housing development outweighed the regional need for low and moderate income housing and that the Housing Appeals Committee did not have enough evidence to support the contrary.

The town’s fire chief, Robert Ahearn, asserted that the town lacks the equipment needed to obtain access to the roof of the 42-foot high proposed buildings in the project. The town lacks a ladder truck and its highest ground ladder reaches only 35 feet.

The Supreme Judicial Court, however, has ruled that the Housing Appeals Committee reasonably concluded that the risk to residents was minimal in light of the advanced sprinkler system to be installed in the building.

Thirdly, the town argued that the project would become an increased municipal cost. The local zoning board claimed the project would increase the town’s population and overall housing stock by nine percent and would require two additional police officers and two more firefighters and increase the school population by 54 children. The high court, however, ruled that the town failed to allege that the increased services were not financially possible for the town.

In its denial of the permit, the local zoning board asserted that Sugarbush failed to provide proof that its project would not violate the local wetlands bylaw, which does not allow a project to be built within 100 feet of any wetland unless permitted by the local conservation commission. The Supreme Judicial Court and housing committee have both ruled the town does not prove wetlands damage would happen and failed to show local wetlands concerns outweigh the regional need for housing.

Lastly, the board did not believe it should have refunded Sugarbush $10,000 for town legal services. Once again, the Supreme Judicial Court sided with the Housing Appeals Committee, stating the town may not evade the prohibition against burdening Sugarbush with legal fees arising from its own general representation.

For several years, the developer and town have battled in court with most rulings supporting the construction of the housing complex. Nielsen, who has developed affordable housing and other projects since 1982, bought the land in 2003 for $620,000. To block the development, the town offered to buy the land.

When the local zoning board originally denied the permit, Nielsen appealed to the Housing Appeals Committee. After Nielsen won that decision, the town filed its own appeal to the Franklin Superior Court. The court denied that appeal and the Board of Selectmen voted in July 2011 to appeal again to the Supreme Judicial Court.

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