NORTH ANDOVER — The selectmen voted unanimously Monday night to recommend against attempting to take by eminent domain the Berry Street land where a developer has approval to construct 196 apartments.
The developer, North Andover Holdings LLC, applied for permission to build the apartments under Chapter 40B, the state’s “anti-snob” zoning law. Chapter 40B exempts developers from local zoning regulations if at least 25 percent of the homes they intend to build are set aside for people earning below-average incomes.
The Zoning Board of Appeals approved the project by a 4-1 vote two months ago. Several residents, led by former Selectman Robert Ercolini, submitted a citizens’ article for the May 20 annual Town Meeting that calls for taking the 25-acre site at 16 Berry St. by eminent domain.
Ercolini has said the purpose of the citizens’ article was not so much to stop the building of the apartments but to preserve open space, a historic farmhouse on the property and a nearby 350-year-old cemetery. He has also said the site could be used for a fire station that would serve the southern half of the town.
Asked by the selectmen to give an opinion on the legality of taking the property by eminent domain, Town Counsel Thomas Urbelis cited a 1993 case, in which the state Supreme Judicial Court ruled that Burlington’s attempt to use eminent domain to acquire a property where a developer wanted to build affordable housing was invalid.
Attorney Theodore Regnante, who represents North Andover Holdings LLC, wrote in an April 16 letter to the selectmen that his client “will vigorously defend any attempt to improperly take the locus via eminent domain.”
Article 29, the citizens’ article, proposes paying $2.5 million for the property. Regnante wrote in his letter that that sum would not be adequate.
The annual Town Meeting, which will convene at North Andover High School at 7 p.m. May 20, will have the final word on the article.