This site in Gloucester is at the center of an affordable housing dispute.

The city of Gloucester is counting on federal flood and wetland regulations to settle a land-use dispute between the city and a state housing agency.

The state’s Housing Appeals Committee (HAC), ordered the city to allow construction of a 12-unit, 40B condominium project on a filled wetlands lot that is under federal flood plain and wetlands protection. Four of those units will be sold as affordable housing to meet the 40B standard.

In 2005, when he did not win his appeal to the Gloucester Planning Board to build the 6-acre project – named Brierneck Crossing at Good Harbor Beach – the developer, James Grifoni, appealed to the state’s HAC. He wanted to use the 40B regulation that lets builders circumvent the permits, and build on the filled wetlands near the beach, an area that is in a federally protected tidal marsh section of the city.

Grifoni won his appeal from the state Aug. 11, and wants to start building. Gloucester wants to fight the HAC finding.

HAC: No Problem

The four members of the state’s Housing Appeals Committee rejected evidence that pointed to the possible flooding of the project where it would be built in the low-lying area across from the beach’s parking lot. The HAC further refuted arguments that building on the filled in marshland would have an affect on the appearance of Good Harbor Beach.

HAC wrote: “The board has not shown how the open space and economic benefits of the Good Harbor Beach are compromised by the construction of this project.”

Gloucester Planning Director Gregg Cademartori said because Grifoni filed his project under the 40B statute that allows builders to skip some of the permitting process, Grifoni hoped to build at the site. The 40B regulation “releases the developer from local zoning and dimensional and use requirements, so he can build there,” Cademartori said.

However, Gloucester City Counselor Suzanne Egan says the city plans to fight the Housing Committee’s appeal. She says federal law defines the coast as a barrier reef area that protects the property in question. The federal regulation overrules the state laws, and thus places the parcel under FEMA protection in the advent of an emergency like flooding.

“There are also safety issues involved in this dispute that [the state] has ignored in our appeal,” Cademartori said later.

Grifoni’s attorney, Howard Speicher, said, “Although the property around the project is in the flood plain, the area was filled in back in the 1980s sometime, and that puts the location of the project nine feet above the flood plain, so we can build there.”