Allan Appel File Photo
The project would go up on a slope starting here on Whalley.
After two denials, the city will listen yet again to a builder’s proposal to construct more than 100 senior homes in the shadow of West Rock by the West River — this time chastened by a court ruling.
Developer Larry Waldorf sued the City Plan Commission after it denied his July 2013 version of a proposal to build a 124-unit elderly housing development on the top of a steep strip of land running from Whalley Avenue, near the intersection with Emerson Street, down to the West River. The commission staff has expressed worry that frequent river flooding would endanger residents. The developer argued he has submitted extensive data to allay those concerns. He has been trying for more than a decade to build the project.
“I don’t know what’s going on. I know that if they expect me to give up and go away, they’re wrong. And the reason I’m not going to do that is — I’m right,” Waldorf told the Independent.
He went to court after the denial, the second one he received, and found a sympathetic ear in Superior Court Judge Marshall Berger. Berger ruled that the commission and developer had to “engage in a full discussion concerning whether the regulations have been satisfied,” before City Plan either approves the application, denies it, or approves it with conditions.
DD Design Development Group
Waldorf began this discussion anew before City Plan this past Wednesday night. He will not submit a new or revised application, but rather will get another chance to explain the most recent version presented last July.
“I propose today to hear from you, allow members of the board to ask any questions and receive from you anything you would like to give us” before the next City Plan meeting Dec. 17, said the commission’s chair, Ed Mattison.
Communication between the developer and City Plan has been spotty throughout the process.
City Plan did not consider additional information submitted during the July 2013 hearing before denying the proposal, which the court memo called “not fundamentally fair.”
This time around, the commission must look at those materials, determine whether or not they satisfy requests for more information, and then determine whether the project will meet city standards.
A portion of the proposed building is located within a 50-foot buffer area of the wetlands on the river’s bank, which was the primary reason City Plan denied the application last July. “Without the relocation of the building footprint outside the 50’ wetland buffer, the application for development within the regulated area must be denied,” that report reads.
The city gave permission to build in the same location in 1999, after the developer showed the project would cause the wetlands minimal harm, but that permit has since expired. A 25-foot buffer area requirement was extended to 50 feet.
But, as Waldorf’s lawyers argued, City Plan cannot deny a project simply for building in that buffer. The commission can deny a developer for not proving adequate protection of the fragile ecosystem.
Aliyya Swaby Photo
Rini addresses City Plan.
“You can build things in that area, but you have to show you’re not making it worse for the wetlands,” Waldorf’s lawyer, Joe Rini (pictured), told the Independent.
City Plan’s report said the developer had not proven he would minimize those risks, by absorbing storm water heading down the slope before it reached the river or by preventing flooding.
DD Design Development Group
At Wednesday’s meeting, consulting engineer Robert Amantea showed a diagram of the proposed system of catch basins and pipes, which he argued would actually decrease the amount of water going into the river. He said the treatment systems would remove more than the required 80 percent of pollutants from the storm water and treat the first inch of rainwater.
The developer has also presented evidence, through a conditional federal review, that the property would not be located in an area affected by any projected floods.
“While flood issues are mentioned as a reason for the denial of the inland wetlands permit, counsel for the commission conceded during the appeal before this court that such a reason could not stand in light of the letter received at the meeting from Federal Emergency Management Agency (FEMA),” the court memo reads.
At the end of Wednesday’s meeting, Rini said the developer would meet with the commission on Dec. 9 to provide any necessary information.
“What we believe we should do is follow the mandate in court, which limits your ability” to hand in more documents, Mattison responded.
The commission will reconvene Dec. 17, after reviewing the proposal, and ask questions of the developer. They could also make a decision.
Waldorf said if the commission rules against him again, he has two options in mind: appealing in the state Supreme Court or converting it into a civil rights case: “They have denied us the rights to use our property.”
The commission’s lawyer, Roderick Williams, an assistant corporation counsel, sent the Independent a statement on behalf of the city: “This matter is the subject of ongoing litigation. As a result, the City will respond accordingly at the appropriate time.”