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Sides at Mugar hearing dispute affordable-housing data

Oh, so close, and still so far away

UPDATED, Nov. 15: The Mugar condo-development project slated for East Arlington, suspended in two years of legal limbo, has finally received a state hearing, which began Oct. 25 and concluded Nov. 2. A ruling is expected next spring.

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

Appearing before the Housing Appeals Committee in Boston, lawyers representing the Town of Arlington and Oaktree Development LLC of Cambridge, the proposed developer, contested the percentage of land devoted to affordable housing in Arlington.

At issue is whether Arlington provides affordable housing on at least 1.5 percent of the town’s total land area. If Arlington can prove that it does, the town achieves “safe-harbor” status under Chapter 40B, a state law, and the town can block the 219-unit project proposed on 17 acres between Thorndike Field and Route 2.

Many town residents and top officials have adamantly opposed the construction project since 2015, claiming it could cause flooding, increase traffic congestion and overburden town schools.

Continued dispute over percentage of affordable housing

Attorneys from both sides gave their version of the calculation for the amount of Arlington’s affordable housing.

The Town of Arlington, using data provided by Adam Kurowski, who manages the town’s GIS system, says affordable housing is provided on 1.56 percent of the town’s buildable land. “Kurowski’s determination that Arlington meets the ‘safe-harbor’ status is a matter of fact and law,” Arlington special counsel Jon Witten told the hearing.

Oaktree Development’s attorney, Stephanie Kiefer, of the law firm Smolak & Vaughan LLP, disagrees: “Kurowski’s data isn’t what he purports it to be; it’s 1.37 percent, not 1.5 percent. It is the town’s obligation and duty to demonstrate compliance with the 1.5 percent. Arlington’s Zoning Board of Appeal’s (ZBA) data is wrong and fails to adhere to the regulations determined by the committee.”

The difference in calculations is based on how group homes, which are considered affordable housing, and bodies of water, are counted. 

Group homes

A group home is defined as three or more unrelated Department of Mental Health (DMH) clients living together.

Two subpoenaed witnesses, Victor Hernandez and Kimberly Clougherty, were called in for questioning about the town’s group homes. Both represent DMH and the Department of Developmental Services, keepers of the confidential data about what group homes exist in Arlington. Their testimony aimed to corroborate views about group-home data.

“The data we provide on group homes to the Department of Housing and Community Development [DHCD] is limited solely to the number of sites and number of people who live there, and we provide this data only if requested,” Hernandez said. “We do not provide the acreage on which the group homes are situated, because this information is not requested and is confidential.”

Clougherty concurred: “We provide the DHCD only the number of group homes and number of beds. We don’t provide the homes’ addresses, because that information is confidential.”

The DMH also supervises apartments that meet the requirements to qualify to be on the DMH list, but don’t show up on the Subsidized Housing Inventory (SHI) list. “Only group homes show up on the SHI list, because that’s all the DHCD requests,” said Clougherty.

As of March 2018, Arlington has nine group homes, down from 11 in September 2016, according to Kiefer. The average occupancy is five residents.

Witten asked whether the state would report the data if Arlington were to add more groups homes. Hernandez responded, “We are the keeper of records, but don’t submit to DHCD data on all of the group homes.”

Similarly, if a group home gets unlicensed, that information is not volunteered to the DHCD; it is provided only if requested, said Clougherty. 

"Our assumptions are close to accurate," Heim told YourArlington on Nov. 14, "yet the DHCD denied our appeal without necessarily getting fresh information."

Water bodies

The Town of Arlington and Oaktree Development disagree on how the town’s bodies of water are counted.

“Water bodies are not zoned, so are not included in the amount of buildable land, and the required methodology is unambiguous. Therefore, the Town of Arlington exceeds the ‘safe-harbor’ status,” says Witten.

Again, Kiefer disagreed: “The ZBA seeks to exclude water bodies to distort the regulations, and Kurowski excludes water bodies twice – as publicly owned lands and as conservation areas.”

“This is the ZBA’s obligation and responsibility,” Kiefer said. “They did not use the correct regulations, instead relying just on guidance. If you provide exclusions, you need to provide backup. They provided no deeds of the public ownership of land, so it’s an internal inconsistency.”

However, Witten rebutted Oaktree’s claim that Kurowski’s data double-counts the water bodies: “This is wrong. This is false.” 

What’s next?

Briefs from both lawyers are due to the Housing Appeals Committee within 30 days of this hearing; and reply briefs two weeks after that, though extensions may be given because of the holidays.

The Oct. 25-Nov. 2 hearings were held after the town prevailed in a public-records lawsuit.

Asked whether the town would appeal if the Housing Appeals Committee rules against Arlington, Heim said Nov. 14:

"This issue will be preserved for later. If we lose, the ZBA will recommend substantive hearings on the proposal issue. The issue is preserved if/when there's an appeal of the ZBA's decision on substantive merits. Whatever the decision, the developer/abutters can appeal, and that can also be appealed."

Efforts by Oaktree Development of Cambridge LLC, the proposed developer, have been quiet since November 2016, when the town's Zoning Board of Appeals (ZBA) voted unanimously to appeal the state's rejection of the land-area calculation for affordable housing for the 40B Mugar project in East Arlington. 

In December 2015, the ZBA agreed that the town had enough eligible land area devoted to affordable housing -- that is, at least 1.5 percent. To the town, that number meant it had met one of the "safe-harbor" thresholds available under Chapter 40B, the 1969 law originally intended to increase affordable housing. Being in that harbor means the town can block the Mugar project.

Oct. 24, 2018: Mugar project returns to spotlight, with decision seen next spring

Jan. 29, 2018: Town suit seeking Mugar-case land data filed last June
Nov. 30, 2017: 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 summary by YourArlington freelancer Susan Gilbert was published Saturday, Nov. 9, 2018, and updated Nov. 15, to add comments from town counsel.

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