Gloucester Daily Times
Developer Michael Carrigan's hope of avoiding a court challenge to his permit for a 27-home cluster subdivision in the Annisquam highlands has been dashed.
Four abutters to the 33 acres on which the Planning Board in February gave Carrigan the go-ahead to construct Annisquam Woods filed suit in state Land Court on Thursday. Papers were filed with the city Friday.
The abutters said the board's approval vote was defective, and that Carrigan's planned improvements to narrow, hilly Hutchins Court, the lone private access road to the subdivision, would illegally degrade their properties.
Three of the four named plaintiffs - David Morey, Will Higgins and Paul Lindberg - live on Hutchins Court and are among the 267-member Annisquam Bay View Woodlands Association that organized early last year in opposition to Carrigan's effort to build on the rough and nearly inaccessible terrain owned by summer resident David Tufts.
The proposal calls for 27 homes in an isolated enclave of Annisquam, the North Gloucester neighborhood where some of the city's earliest homes were built. The public hearing process began in June.
Carrigan's Feb. 26 victory - a 4-0 vote with one abstention - ended months of hearings that had the feel of a court battle, with lawyers and engineers on both sides filing briefs and delivering oral arguments in place of the more typical emotional pleas against putting vacant land to use.
The result came without outcries, giving Carrigan what he said was reason to hope he could include the association in the writing of permit conditions to keep the project out of court.
At the time, Carrigan said the changes he agreed to over the course of 16 hours of hearings had added more than $1 million to his costs. But he also said he thought the opponents had helped make a better project.
In response, James Groves, spokesman for the opposition, complimented Carrigan for grasping the concerns of the abutters and residents of Bay View and Annisquam.
Carrigan yesterday said he was informed of the suit by the fourth co-plaintiff, Noel Mann, while walking the property with her and representatives of the Essex County Greenbelt Association. Carrigan had nominated the Greenbelt Association to hold and manage parts of the parcel. Under the cluster concept, nearly nearly three-quarters of the land would remain undeveloped.
Yesterday, Carrigan described the suit as reflecting "bad faith." But he said he probably will continue to reach out to the association in hopes of achieving an out-of-court settlement.
Groves said his survey of association members produced no opinion against proceeding to Land Court.
Diane Tillotson, the association's lawyer, said the Land Court typically encourages, and can even require, plaintiffs to propose a settlement before a trial.
The Land Court fast-tracks suits of the nature brought by the association, Tillotson said.
"Ultimately," Carrigan said, "the land is going to be developed." He pointedly declined to add "by me" to the sentence.
In the engineering plans for Annisquam Woods, the improvements to Hutchins Court - including widening and leveling - were deemed essential to the viability of the development, especially after Carrigan bowed to board and abutter wishes and dropped a second access road from the project earlier this year.
It would have allowed subdivision traffic to enter and leave via Tufts Lane to the south, and would have required the construction of an enormous land bridge made of fill across a ravine used by wildlife moving between Langsford Pond and the Dogtown wilderness.
The abutters' suit claims Carrigan cannot make improvements to private Hutchins Court for the benefit of his development by harming existing properties.
For example, it alleges the widening will take part of Higgins' driveway and compromise his safety by reducing his line of sight to the additional traffic resulting from the subdivision. It also alleges the expanded pavement will exacerbate the flooding of Lindberg's home.
The second part of the suit raises what Tillotson, the association's lawyer, conceded was a "murky" question about the number of board votes required to approve the permit sought by Carrigan. It turns on interpreting conflicting signals in the texts of the city's zoning ordinance and subdivision rules.
Before the vote, board Chairman Paul Lundberg said he assumed Carrigan would need five votes, one more than he got. But on the night of the vote, city solicitor Linda Lowe delivered a written opinion that the project needed four.
It got just that number after a member, Henry McCarl, reversed his earlier announced opposition and joined three others, including Lundberg, in voting yes. The fifth voting member, Michael Rubin, abstained. He had been allied with McCarl in opposition.
Tillotston described a legal challenge to Lowe's opinion as uncertain but winnable.
Even with the fate of the project in Land Court, the capacity of the notoriously balky mechanical sewer system in Annisquam to handle the added waste from the homes in Annisquam Woods remained uncertain.
Last spring, Carrigan won a disputed right to connect the subdivision to the septic tank effluent pump - or STEP - system, which was installed along the northern Washington Street corridor in the 1990s. But he also was required to demonstrate by field testing that the homes in Annisquam Woods would not overtax the STEP system.
Carrigan said yesterday his engineers' measurement of sewer capacity "is still happening."
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