State Superior Court Judge Thomas S. Durkin has denied a third appeal to stop the Windham & Windsor Housing Trust (WWHT) from proceeding with its Alice Holway Drive community housing project.
The development has been planned since 2019 as two new buildings intended to provide 25 mixed-income, energy-efficient, and accessible apartments on the 0.91-acre site in Putney Village next to Putney Community Gardens.
In their appeal, neighbors to the site Laura Campbell and Deborah Lazar contended the Trust's lots are not contiguous - and should be.
Because Alice Holway Drive runs between the lots, they maintained the site does not meet the legal definition of "affordable housing" vis-a-vis Act 250, the state's environmental protection law.
They also contested a previous district commissioner's jurisdictional opinion that concluded the project is exempt from Act 250 land-use review.
Lazar and Campbell have until March 23 to appeal the decision, which Campbell said they are giving "due consideration."
"Judge Durkin has characterized us appellants and, by extension, all the other opponents of the WWHT project, as 'irrational,' apparently because we know the meaning of contiguous, can see that the lots are not contiguous, and have the common sense to say so in plain English," Campbell said.
Argument 'stymies Legislature's intent,' judge says
In his Feb. 22 ruling, Superior Court Judge Thomas S. Durkin wrote that "to find that the project is subject to Act 250 jurisdiction, merely because of the presence of a Class III road, would be an irrational and impermissibly strict reading of the statute that stymies the Legislature's intent to encourage mixed-income housing in designated growth areas."
The latest decision is the third ruling in the legal process that began in March 2022, when a first appeal was filed contesting the permit after the Putney Development Review Board approved the site plan.
In explaining his decision, Durkin said that "the Vermont Supreme Court explained that the word 'contiguous' generally requires parcels to be touching, but that there may be exceptions to this general rule."
He also said that a "broader interpretation of the word is appropriate where such an interpretation gives effect to the legislative intent."
"The Legislature clearly intended to lessen the regulatory burden on mixed-income housing projects in designated growth areas," Durkin wrote. "It is clear to the Court that lessening this burden on qualified housing projects was done with the intent to facilitate an expedited process by which such projects can be constructed and, through this, encourage their development."
He went on to describe the Alice Holway Drive development as "precisely the type of project that the Legislature sought to encourage by adopting the priority housing project exemption from Act 250."
The judge also points out the lots are "connected by a crosswalk and, most notably, are treated as a single tax parcel by the town of Putney."
"Taken together, the only rational conclusion is that the project constitutes a single tract, or multiple contiguous tracts, sufficient to meet the definition of a priority housing project," he writes.
WWHT schedules construction for spring
"We are grateful to the Vermont Superior Court for reaffirming the importance of this project, and of affordable housing to this community," Elizabeth Bridgewater, WWHT's executive director, said in a news release.
"We're excited to focus on moving forward with developing much-needed affordable housing," Bridgewater said. "We sincerely thank the community members who again and again voice their excitement for this project, and their understanding of the importance of creating homes that are permanently affordable and held in the community land trust model."
Bridgewater says the delay caused by the lengthy appeal process increased the cost of the project 14%, from $10.3 million to $11.7 million.
The proposal has received funding from both state and federal sources, including Vermont Housing Finance Agency's Tax Credit Allocation, leveraging public-private-partnership funding.
WWHT is working in partnership with Evernorth, a statewide nonprofit housing developer, on the Putney development, "tapping into their decades of experience and access to equity investors in the federal tax credits."
The two organizations co-developed new townhouses on Neumann Lane as well as the historic Noyes House in Putney.
"This is a victory for the 25 households who will be able to move into their new homes in Putney," said Kathy Beyer, Evernorth's senior vice president for real estate development.
Construction is now scheduled to begin this spring.
This News item by Virginia Ray was written for The Commons.