HAVERHILL — The developer of a planned diesel fueling station at 298 Amesbury Road, the site of the former Greenleaf Gardens landscaping center, has filed a lawsuit challenging the City Council’s denial of an underground diesel fuel storage license.
The denial has halted the project, already underway with approvals from other city departments.
The lawsuit was filed Sept. 6 in Essex Superior Court, naming all nine council members as defendants in the case, even those who were not involved in the denial.
The suit was filed on behalf of Kayrouz Petroleum LLC of Westborough, as tenant and duly-authorized agent of Steven Eddy of Haverhill, who owns the property at 298 Amesbury Road.
It alleges that the City Council “exceeded” its authority in denying a special permit, adding that it was “arbitrary and capricious” in its decision and that it was “not based on substantial evidence, and/or was based on errors of law.”
The suit seeks to overturn the council’s decision and for the council to issue a license to store as much as 32,000 gallons of diesel fuel in underground tanks.
It also asks that the plaintiffs be awarded costs and “reasonable” attorney fees as they relate to the suit.
The city’s lawyer, William Cox Jr., told The Eagle-Tribune he will “vigorously” defend the actions of council members, who individually cited their reasons for their denial of a license. Two council members cited their reasons for abstaining.
“The council provided specific reasons for its denial, most notably traffic issues,” Cox said. “They filed suit against us and we’re going to defend it. We will be filing an answer to the complaint in due course and we have 20 days to do it.”
At its July 26 meeting and following a public hearing, the City Council denied a request by Eddy for a flammable license needed to install underground fuel storage tanks.
Councilors Thomas Sullivan, Melinda Barrett, Melissa Lewandowski, John Michitson and Joseph Bevilacqua voted to deny Eddy a license, while Councilor Shaun Toohey voted in favor. Council President Tim Jordan and Councilor Michael McGonagle abstained, and Councilor Catherine Rogers was absent.
Those who oppose the plan cited missing requirements, concerns about traffic, and questioned how the rural neighborhood and an assisting living facility nearby would be impacted.
Eddy has been preparing the site for construction of a diesel truck fueling station along with a Racing Mart convenience store.
The site is diagonally across from the Elliott Street entrance to Northern Essex Community College, and immediately across from Interstate 495 on- and off-ramps. It is adjacent to Haverhill Crossings, an assisted living facility.
Local Attorney Michael Migliori, who represented Eddy at the July 26 public hearing, told the council that all local, state and federal requirements had been met.
“It’s my opinion that there exists no legal reason for the council not to approve the license application,” Migliori said.
Migliori said the proposed diesel fueling station underwent 19 months of reviews by all city departments, which also approved the project, at great expense to the developer.
“The final step is to apply for the storage tank license,” Migliori said. “This is where things fell off the rails.”
Migliori said that simultaneous to Eddy’s request, the city is working on a plan for a new industrial park on land behind Eddy’s property and that an access road to the park would be built between there and Haverhill Crossings.
Migliori reiterated there was no legal reason not to approve the license and suggested that something was happening “behind the scenes” to prevent it.
During the public hearing, Joyce Menna of 26 Elliott St. told the council that as an abutter, she is against having a diesel truck refueling station in her neighborhood.
“These underground storage tanks are the biggest threat to the water supply,” she said, suggesting a leak from an underground fuel storage tank could impact nearby Kenoza Lake, the city’s drinking water reservoir as well as nearby wetlands. “It’s just a really bad idea.”
Menna also questioned a potential increase in traffic in this already busy area.
City Economic and Planning Director William Pillsbury said the planned access road to the proposed business park would have an entrance and exit on Amesbury Road across from the Elliott Street entrance to NECC, where new traffic signals would be installed as part of the business park project.
A detailed traffic study is planned in connection to the proposed business park, Pillsbury said.
