[It would be a] travesty of public policy to waive wetlands regulation” at the site.

— Brian Rehrig, a director of Arlington Land Trust

Mugar wetlands, Alewife flooding: Arlington filmmaker Glenn Koenig prepared this five-minute video for Town Meeting in 2015.

The three-time-postponed Zoning Board of Appeals hearing about the Mugar site in East Arlington got underway amid legal wrangling, peacemaking and a look ahead to a key issue – how to build 219 homes on 17 acres that include wetlands.

The latter is expected to be the focus Tuesday, Oct. 13, when the hearing resumes.

Sessions to consider the comprehensive permit for the 40B development called Thorndike Place, opposed by town officials and residents since 2015, began Aug. 25. Here is a summary about what occurred. View the entire hearing at ACMi >>

All board members present except for Roger Dupont. That includes Chairman Christian Klein, Kevin Mills, Steve Revilak, Shawn O’Rourke, Aaron Ford and Patrick Hanlon.

Seventy-one people were listed as participants, including residents, town officials and representatives from the developer, Oaktree of North Cambridge.

The multiple hearings aiming to conclude by Christmas began in an unpromising way, with disagreements between attorneys – over when the 180-day limits for hearings began.

Compromise reached

Jon Witten, special counsel for the town, said the limit begins at the opening of the hearing. But which one? Because the board received “no substantive information” earlier, he said, then the time begins ticking Aug. 25.

Stephanie Kiefer, representing Oaktree, disagreed, under her view of 40B, saying it began in October 2016. In any event, she relented and agreed that Aug. 25 was the start. The ZBA voted unanimously to accept that.

Next, a discussion about the completeness of Oaktree’s permit application drew another dispute.

Mugar: Most of it is the triangular tract west of Thorndike Field. / Google Earth

In his letter from 2016 updated July 7, 2020, Witten said a “significant amount” of material remains missing. He urged the ZBA not to suspend, but proceed.

Kiefer referred to her letter of March 18, 2020, reviewing completeness, saying Witten was “glossing over” issues.

Chairman Klein asked what documents remained to be completed. Kiefer said plans provided in March are the latest revised, but are not final. She said the traffic study, from 2014, will be updated.

After some back-and-forth about whether Oaktree had complied with ZBA regulations, board member Hanlon said he preferred “a useful discussion” about getting information in enough time to discuss it.

Applicants’ presentation

The applicants followed with a presentation about Thorndike Place. Involved were Oaktree principals Gwen Noyes and Arthur Klipfel, engineer Scott Thornton (Vanasse), Bob Engler (40B consultant), John Hession (BSC Group, engineering) and Kiefer, who reviewed an issue at the crux of the ZBA hearing – whether Arlington’s amount of affordable housing fails to be in a “safe-harbor.”

The state Housing Appeals Committee determined last fall that the town was not protected under the 40B provision – that is, it does not provide affordable housing on at least 1.5 percent of its total land area. Under that decision, Oaktree’s appeal may proceed.

Noyes described plans updated last March, and completed this summer by the BETA Group. She reintroduced the details, calling them “still the same plan,” which offers benefits to the community as a whole.

She said the majority of property around the townhouses would be open space.

She said that as many as 11 accessible paths running through the site, which is, larger than nearby Thorndike Field. The homes are to be same scale as those on Dorothy Road. She said townhouses screen a larger building behind it.

Much parking will be underneath the buildings, which will be modular construction. Three-quarters of the homes will be market rate; and one-quarter considered affordable.

Hession, a civil engineer, said his group, based on a recommendation from highly regarded wetlands scientists, removed a westside walkway so as not to conflict with a 25-foot wetlands no-disturb zone.

Now a site for the homeless, the wetlands would have appropriate paths in the future.

Susan Chapnick, chair of the Conservation Commission, noted the many items that the applicant had not yet provided, and she urged the ZBA not to grant any waivers.

At 9:23 p.m. Paul Haverty, a special technical adviser, joined the meeting and supported Chapnick’s comments. He is an attorney retained by the town for the Thorndike Place hearing to make sure the process is followed appropriately. He is supported by the Massachusetts Housing Partnership’s 40B technical review consultant program.

Public comments

About two hours into the hearing, the public was invited to speak, and eight did.

State Rep. Dave Rogers (D-Arlington-Cambridge) noted that the project has been universally opposed by the public. A lot of info not yet provided. Never see a 40B project that is so universally opposed. Hope to enter into dialogue. Misadventure of a project. Arlington has made great strides in affordable housing.

Brian Rehrig, a director of Arlington Land Trust and a Precinct 8 Town Meeting member, thanked Hanlon and Chapnick for citing the importance of observing wetland regulation before considering any waivers. He said it would be a “travesty of public policy to waive wetlands regulation.” He said there is no more sensitive site in Arlington than Mugar.

As to the proposed boardwalk, he said: ZBA regulations prohibit construction in flood way.

He said the site has been abused for 70 years under Mugar ownership. Issues include dumping, solid waste and landfill. “It doesn’t cease to be a wetland because it is dumped upon,” he said.

Jo Anne Preston, a member of the Housing Authority and a Precinct 9 Town Meeting member, noted the additions of six classrooms at the Hardy School likely means more Lake Street traffic. She cautioned against extrapolating it from older traffic data.

Clarissa Rowe, a former Select Board member and Land Trust vice president, said Town Meeting has voted three times to oppose the project. She said the FEMA designations added to the plan “warms my soul.”

Patricia Brown of Mary Street asked about the proposed entrance ramp to Route 2 and whether cars at Thorndike Place would park in the neighborhood if spaces fill up there. She was told that Route 2 entrance plans are off the table and that the 304 spaces planned are deemed sufficient.

Jennifer Griffith, a development abutter, asked about the capacity of sewer lines in the light of over flows, the impact of construction on nearby home, traffic calming and whether air-conditioning units might increase the total building height over the four stories proposed.

Aram Hollman, who does not live in the neighborhood, focused on whether residents would be protected in the light of flooding, including one in 1996. When photos he wanted to share could not been displayed via Zoom, he referred the public to this link at the Arlington Residents for Responsible Redevelopment blog.

He referred to a 2016 meeting at which he said Noyes and Klipfel offered to solve flooding issues and asked them to make good on their promise.

Don Seltzer, who also is not a project abutter, wanted to know how much fill was planned. He estimated 1,000 to 2,000 dump trucks full of dirt would be needed.

Emma Murphy of Pondview Road wanted to know what Lake Street traffic might be like during nonpandemic conditions.

Another compromise

A discussion about scheduling the next hearing turned testy.

O’Rourke, following Witten’s suggested, recommended that the board vote that the applicants have not completed its application, does not comply with ZBA regulations and that it should comply within 30 days.

Witten agreed with O’Rourke, saying the applicant had admitted it was not in compliance.

Kiefer demurred, saying that responses about completeness were made in March. She called it a “good-faith attempt …. We have said we will provide all information.” She called a 30-day requirement “a bit much.”

Witten called her response “insulting and offensive.”

Hanlon interjected that could not support O’Rourke’s motion, saying he did not want to have “unproductive discussion at each hearing.”

Klein suggested waivers be discussed at end of process. He supported Hanlon’s suggestion about that. The applicant produce in 30 days information deemed incomplete or specify what can be waived. O’Rourke accepted the compromise.

A roll-call vote was unanimous.

The ZBA moved to continue the hearing to Oct. 13 at 7:30 p.m.

Meetings dates

Here is a list of subsequent meetings:

Subsequent meeting dates and topics are tentatively scheduled as follows:

Oct 27 – General civil engineering matters;
Nov 10 – Traffic flow and safety;
Nov 24 – Architecture, landscape architecture and open space, plus density and overall design;
Dec 8 – Pro forma review; and
22 – Conditions review and discussion.