Residents have been living for a number of years in the subdivision that technically has not been completed as the city, state, and developer seek a path to the final approvals.
PITTSFIELD, Mass. — The developers of the Yola Esther subdivision are again asking the city to accept the three streets — Kara, Giovina, and Karen — after reaching an agreement with the state Architectural Access Board.
The developers of the controversial subdivision say they have complied with the AAB's orders to make certain improvements to provide for better access for those with disabilities and pay a $150,000 fine — a fine significantly reduced by $822,500.
Engineer Mark Scoco of SK Design Group told the Community Development Board on Tuesday that it had reached an agreement on the work that needed to be done with the AAB and brought the streets up to their requirements.
The City Council, which refused to accept the streets before, will now have to agree to accept the streets — the final piece to the 22-year-old project.
The central point of contention is what was approved by the city for the project and then how that project ultimately fit the regulations when it was actually built. Particularly, there were areas where sidewalks were too steep, there was a lack of curb cuts, crosswalks and signage, and cross-slopes were not in compliance. The AAB cited a number of violations to current law with the subdivision.
Developer Joseph Kroboth purchased the land off Williams Street and received approvals for the development in 1996. It wasn't until 2004 when construction actually began. Development was slow and city officials had leaned on Kroboth to complete the work.
By 2015, most of the work was completed but former City Engineer Matthew Billetter, Ward 4 City Councilor Chris Connell, and Commission on Disabilities Chairwoman June Haile objected to the city declaring it finished and releasing the developer's performance bond back. City officials refused to take on the streets and the liability for making costly repairs to comply with the American with Disabilities Act and felt without that performance bond, the city had no leverage in getting those pieces of the project done by the developer.
The Community Development Board at the time took the stance that the developer had done what it had originally proposed and opted to release the bond.
Meanwhile, the Commission on Disabilities took the issue to the state. The Architectural Access Board opened a case in late 2015.
It ordered the developer to submit a plan to resolve the problems by January 2016. But that didn't happen. There were a series of hearings and deadlines scheduled early that year but by August, the developer wasn't responding. The AAB issued a base fine of $175,000 for non-compliance and added $50 per day per violation that wasn't corrected.
By September, the fines had added up to $687,500. By March 2017, the AAB called for another fine hearing, which was held in July but no one represented the developer at it. Because of that, it voted among other things to reaffirm its prior findings in favor of the complainants and to recalculate the fines to run through the date of that decision, the report from the AAB reads.
The fines continued and, in December, attorney Thomas Hamel wrote to the AAB saying he had been rehired to represent the developer. He reportedly told the AAB that there were "breakdowns in communication" but the AAB wasn't too sympathetic to Hamel's argument for why the correspondences hadn't been heeded by the developer.
"The petitioner's conduct is a flagrant and willful disregard of the board's authority and orders. In fact, Yola Esther ignored the board's jurisdiction over the course of years and chose not to comply with significant and ongoing orders. The harm caused was undeniably substantial to the persons with disabilities and is violative of the regulation's intent," the decision reads.
Throughout those two years, residents in the neighborhood started to get impatient. Earlier this year, residents petitioned to have the city accept their streets, mainly so they would receive city services.
The City Council, however, wanted to wait until the AAB ruling was released before agreeing to take on the responsibility.
By March of this year, the AAB ultimately approved a new plan to address the issues — and agreed to issue variances for others and to drop the $822,500 worth of fines — provided the developer still pay the base $150,000 and completes the work by May 25.
"In light of all the above, the board finds that a fine is appropriate in the circumstances. However, it also determines that the owner has presented such credible evidence as to establish that it will complete construction as required and pursuant to the instant granted variances such as to provide some relief to persons with disabilities in the subject location. Therefore, while deeming a significant fine nonetheless necessary, some mitigation thereof is not unwarranted," the board wrote.
Scoco said on Tuesday that the AAB's required work was completed.
With the AAB case now settled, the developer still needs to settle differences with the city. The Community Development Board went on record Tuesday in favor of the city accepting the streets. However, that will ultimately be up to the City Council.
According to City Planner CJ Hoss, Scoco will be putting in an updated request for the City Council to accept the streets. That will trigger another internal review by the city's Engineering, Department of Public Works, and others. Those will report the City Council as well before the council makes the final decision.
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