By a 4-3 vote the Scarborough Town Council approved a proposed Dunstan Residential Zoning District that will allow the development of 288 housing units off Broad Turn Road.

Councilors Shawn Babine, Robert Patch and Council Chairman Jeffrey Messer were in the minority in the Wednesday night vote.

There were no major changes to the town’s initial proposal, which changes the zoning on the 140-acre parcel owned by John and Elliott Chamberlain from an RF zone to an R2 zone.

The change would allow up to 240 units. In addition, the new zone contains provisions for a developer to provide money for land conservation and to create of affordable housing, in exchange for bonuses of up to an additional 48 units.

Elliott Chamberlain said that he will have to review the several amendments made to the zone during the meeting, but said if they make sense then he is leaning toward dropping the pending litigation.

“It was what we always expected,” Chamberlain said after the meeting. “It’s the middle of the road, if you will.”

The councilors who supported the proposal felt it was consistent with the comprehensive plan and also less dense than some of the zoning now in Dunstan.

“I would be worried the judge would think it wasn’t in the spirit of the comprehensive plan if we go below R2,” Councilor Patrick O’Reilly said before the meeting. “The R2 is what it is, we can’t go below R2.”

Others who supported the new zone, called DVR, did so because they felt it had the best chance of passing the judges review and would keep the town from finding itself part of another suit over the property.

“I am concerned we end this suit and move on with the least damage to the town and this community,” said Councilor Carol Rancourt in an interview Tuesday.

O’Reilly also supported both the bonus provisions. Noting that this DVR does not have many of the benefits that were included with the initial contract zone, O’Reilly said, “(The bonuses) are two things that are going to make this not sting as much.”

However, those who did not support the 288-unit proposal said their main concern is that area residents will again petition for another referendum that could possibly overturn the town’s decision.

Town Council Chairman Jeffrey Messer said that he was in favor of 240 units with a single bonus provision. He said moving forward with the 288 number would be unresponsive to residents’ concerns and could be challenged in a town-wide referendum vote.

“I’m going to avoid that possibility if I can,” Messer said Wednesday.

Instead he and others felt the R2 with a single bonus provision was the best approach since it was a compromise between the 200 units residents seem to like and the 288 units in the DVR.

“I think a fair compromise is 240,” said Councilor Shawn Babine Tuesday.

In addition, most councilors felt that the bonus provision for the transfer of development rights was more acceptable than the one for affordable housing. Babine said the affordable housing bonus would not create housing that most would consider affordable housing, because it would cost $200,000 to $250,000 per unit.

Messer said he was more comfortable with the development rights transfer bonus because ultimately it would help to reduce the number of homes going into Dunstan.

The DVR is the town’s response to a judge’s February decision that the zoning of the Chamberlain’s property is inconsistent with the town’s comprehensive plan. The town had until May 31 to submit the plan, but officials felt the judge would allow an extra day to complete the process.

The decision stemmed for a suit the Chamberlains filed against the town after a Town Council-approved contract zone, which would have allowed 397 units, was overturned by referendum in 2003.

The Chamberlains argued that, among other things, the town’s zoning for their property was inconsistent with its comprehensive plan.

The judge has not ruled on the other aspects of the lawsuit because the Chamberlains asked him to first rule on the comprehensive plan issue. The Chamberlains’other complaints in the suit – including the legality of the referendum – have not yet been decided.

The Town Council brought the DVR forward in late March. The plan was developed by Planning Department staff and councilors and fulfilled many of the requirements set forth in the comprehensive plan for the Dunstan area.

Throughout the adoption process there have been a small number of vocal opponents who have spoken against the plan. Most are Dunstan residents who opposed the Chamberlains’ Great American Neighborhood proposal, felt the 288 number was still too many units.

In addition, they were concerned about the impacts on the Dunstan intersection, schools and public safety. More specific concerns regarding the plan included parking, the exclusion of senior housing, lot coverages, and setbacks. Some neighbors also felt the proposal was being rushed through the process without sufficient deliberation.

A map of the newly approved Dunstan Village Residential District zone.