The following information was provided by the Coalition to Save the Mugar Wetlands, a group opposing the condo project called Thorndike Place, proposed between Thorndike Field and Route 2, East Arlington. It is republished with permission.
ZBA votes to appeal the DHCD rejection of Arlington’s affordable housing statementOn Tuesday, Nov 29th around 8pm, in the Lyons Hearing Room at Town Hall, 100 concerned citizens erupted in applause when the Arlington Zoning Board of Appeals voted to appeal the State’s rejection of its affordable land area calculation. In late September, the same board had sought Safe Harbor status from Department of Housing and Economic Development (DHCD) in an attempt to prevent Oaktree LLC’s (mis)use of 40B regulations to build a 219-unit development on the Mugar Wetlands in East Arlington.
Where do we go from here?
Per state procedure, the decision has now been escalated to the Housing Appeals Committee (HAC), a forum within the DHCD to resolve such conflicts. The committee will review the calculations submitted by the town of Arlington (resulting in 1.53% affordable housing) and compare this to the calculation submitted by the developer (resulting in 1.39%). The expected timeframe for their decision is 4-8 months. See picture below of the entire process.
Should we win and Arlington’s calculation is confirmed, the developer can submit their application directly to the Town of Arlington where it would follow the normal review process by the various boards under Arlington’s local bylaws and regulations.
Should we lose and Oaktree’s calculation is confirmed, the developer is still expected to submit their application for local review, a process led by the ZBA with a recommendation by the Conservation Commission, however, the application would be reviewed based on adherence to state regulations instead of local regulations. It is here that one can see how Oaktree LLC is using the 40B statute to walk-around Arlington’s bylaws since the developer has applied for 13 waivers to local regulations including Arlington’s wetland protection bylaw.
The ZBA has 3 choices at that point –deny the application outright, accept the application as-is, or accept the applications with conditions. Based on similar processes in other towns, a denial of the application would most likely provoke Oaktree LLC to escalate the decision back to the HAC which has the right and has, more often than not, granted permission to the developer to build as proposed.
On the other hand, if the town accepts the application with conditions, Oaktree LLC can accept them or show the State that the project becomes uneconomical within those conditions. Again, the HAC would be called upon to assure a plan that is economically viable for Oaktree LLC. At this level of appeal, HAC then has the right, and has, more often than not, granted the building permit, under looser conditions to the developer.
If HAC approves Oaktree LLC’s appeal as-is or with mediated conditions, abutters, at that time, will take legal action by proving that there will be specific damage resulting from the developers bypassing of applicable zoning laws such as erosion, light or noise impacts on their property, in addition to the flooding caused by the development that would have been mitigated had local wetland bylaw been adopted.
Putting it in perspective
A Safe Harbor Status proves that a town meets the criteria for affordable housing and any developers must go through the normal process.
The state statute often referred to as “40B” was put in place as an economic incentive for developers in the late 1960s to build housing that includes at least 20% affordable units. A permit granted by the state under 40B allows the developer to bypass local zoning, such as local wetland restoration requirements or height restrictions. State regulations are less restrictive than Arlington’s local regulations and would still have to be adhered to by the developer.
A Safe Harbor Status proves that a town meets the criteria for affordable housing and any developers must go through the normal process.
At the same time, the law gives towns 4 different ways to show that they are providing or creating sufficient affordable housing by other means. Most commonly, towns with large areas of buildable land seek this so-called Safe Harbor status based on 10% of its total housing units earmarked as affordable. More densely populated towns, such as Arlington, with little or no ability to build new housing can show that 1.5% of their buildable land is already dedicated to affordable housing. Arlington is one of the densest municipalities in the state.
The ability to claim Safe Harbor by showing that 1.5% of land area is dedicated to affordable housing has not been extensively used by towns in the 45+ year history of the 40B law. Only recently, the ZBA of Stoneham appealed to the HAC for safe harbor from 1 application and in a similar timeframe, the ZBA of Newton appealed to the HAC against two 40B applicants. Both towns claimed 1.5%, however, all 3 cases were denied by the Housing Appeals Committee (HAC) on grounds that the included land area was underestimated while the area for affordable housing was over-counted. Stoneham has already taken its appeal into the courts, Newton’s decision on next steps is still outstanding, according to Doug Heim, Arlington’s Town Counsel. Towns are breaking new ground by challenging the interpretation of the state law by the state committees.
Why the discrepancy in the calculations?
There are different ways to interpret “buildable land.” The town of Arlington is following the legal definition. The developer is interpreting the law differently, but does not show their calculations. For example, developers in Newton have included public golf courses as “buildable land”, therefore reducing the percentage. The guidelines for determining the calculations are confusing and, at times, contradictory.
We believe that the 40B law is in dire need of revision or, at least, irrefutable calculation rules so that developers are not tempted by the dual incentive of being able to build in areas unsuitable for development using tax payer dollars for the affordable housing shortfall. Unfortunately, the clock is ticking and time is not on our side to encourage better processes, so we will support Arlington as they defend their calculations and Master Plan until it is deemed that the citizens of Arlington need to raise legal action against this manipulation of what should be, a benevolent statute, for all Massachusetts citizens.
About the Coalition to Save the Mugar Wetlands
The Coalition formed as a town wide and neighborhood response to the proposed development of the wetlands, which are locally referred to as the Mugar Wetlands, a property adjacent to the Alewife reservation. It has grown to over 800 members and is supported by:
- Mystic River Watershed Association
- Arlington Land Trust
- League of Women Voters of Arlington
- Arlington Open Space Committee
- Arlington Soccer Club
- Friends of Spy Pond Park
- East Arlington Good Neighbor Committee
- The Friends of Alewife Reservation
- Belmont Citizens Forum
Its mission is to support the Town’s position in opposing the development of this property and upholding the Town’s vision as outlined in the 2015 Arlington Master Plan and the 2015-2022 Open Space and Recreation Plan. It seeks to do so by helping to keep the community informed and maintain representation when needed. The Coalition will continue to oppose this development, not because it is the easy thing to do, but it is the right thing to do for this particular parcel of land.To join, please visit https://saveourwetlands.
About the project
The developers propose Thorndike Place, as the wetlands are referred to in their application, to consist of 6 two-family townhouses along Dorothy Road and 207 rental units in a 4-story building with underground parking set farther back from the road. The development would also include parking above ground. It is to be built on about 6.7 acres of the 17.7-acre parcel of land, of which only 1.5 acres are not in the FEMA floodplain.
Oaktree/Greenline LLC is the development manager on behalf of Arlington Land Realty LLC, a company managed by Peter Mugar. You can view the full application on the town website.
Copyright © 2016 Save Our Wetlands, All rights reserved.
Our mailing address is:
Save Our Wetlands
20 Parker Street
Arlington, MA 02474
Nov. 30, 2016: Zoning board votes unanimously to appeal decision on Mugar project
Nov. 24, 2016: By slim margin, state rules against town’s affordable-housing numbers
Nov. 2, 2016: Mugar developer appeals ZBA vote; state has 30 days to rule
Oct. 19, 2016: Looking ahead to court, selectmen lay out continued Mugar opposition
Sept. 28, 2016: First zoning hearing for Mugar project draws 100, raucous opposition
Sept. 3, 2016: Developer files application for Mugar site permit, citing affordable housing
Dec. 23, 2015: Zoning board readies one of its Mugar project defenses
Dec. 9, 2015: MassHousing approves Mugar 40B application
Nov. 24, 2015: Mugar developer submits document, and town awaits 40B decision
Aug. 19, 2015: Selectmen’s comments on Mugar project sent to MassHousing
July 15, 2015: Hearing on Mugar site application tough to schedule
June 9: Step toward 40B filed for Mugar sitetown seeks more time to respond
May 26, 2015: Speakers at Hardy send a clear message about Mugar site: NO
April 5, 2015: Coalition responds point by point to Mugar developer’s statements
March 31, 2015: Coalition seeks to preserve Mugar site from development
Coalition to Save Mugar Wetlands: WordPress | Facebook
March 8, 2015: Belmont Uplands permit issued; opponents vow to continue
This viewpoint was published Tuesday, Dec. 20, 2016.
Alternative viewpoints are welcome. Contact the publisher.
