Town suit seeking Mugar-case land data filed last June

Donation aids Land Trust aim to save wetlands 

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

UPDATED, Jan. 31: The long-stalled proposal to develop the 17-acre Mugar site near Route 2 has been further delayed by a lawsuit filed last June.

The Town of Arlington has sued a state agency for withholding of information that the town says it needs to support a claim that it has the right to enforce its bylaws.

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.

The status gives the town more control over 40B projects and limits the developer's ability to override local zoning and wetlands protections.

Oaktree disputed the town's number, and in a November 2016 decision the state Department of Housing and Community Development (DHCD) agreed with Oaktree. Oaktree has argued that the town did not correctly calculate land dedicated to such entities as group homes run by the state Department of Mental Health. In early 2017, the town appealed that decision to the next level, the Housing Appeals Committee. The town has argued that it can't give a more accurate calculation of group homes and other state properties because only DHCD has the ability to provide the information, but the agency won't provide it.

Newsletter reports; counsel commented last June 19

A Jan. 29 newsletter announcement from the Arlington Land Trust, a nonprofit that helps protect town open spaces, returned the issue to public attention.

The newsletter also reported that, thanks to a generous anonymous donation, the group will be launching the Mugar Conservation Fund to help save the Mugar wetlands.

The issue did arise at the Jan. 22 selectmen's meeting. YourArlington freelancer wrote Jan. 30 that, under new business, Town Counsel Doug Heim said, "Our special counsel [Jon Witten] filed a reply brief with respect to our ongoing litigation with the state to get the information we should be entitled to make our 1 1/2% calculation for safe-harbor status. DHCD and the attorney general's office opposed that motion.

"We think we're in really good posture to get that information, but that's been keeping everything before the Housing Appeals Committee in a holding pattern. That matter is now fully briefed, and at some point the court will issue a decision on that and maybe the HAC matter will resume. I'm not sure how quickly the court will issue a decision." 

In fact, the minutes of the June 16, 2017, Board of Selectmen's meeting reflect town counsel's comment about litigion: Under news business, "Mr. Heim reported that he is continuing to vigorously pursue rights in the Mugar Development. He will be filing a complaint in Superior Court so that the town gets access to Departmental Health DHCD Records that he believes we need to best prosecute the case."

Court documents that Heim provided show the suit was filed June 5 and that motions followed last October.

The newsletter says the dispute involves defining "land area devoted to affordable housing," which includes the area of 40B-eligible housing inventory under the jurisdiction of the state Department of Mental Health, such as group homes. The newsletter says: "In a classic Catch-22, however, the state agency that maintains the data has refused to release its records, citing privacy concerns. Arlington included an estimate in its calculations, but only with the real numbers can the land area be confirmed."

Waltham case cited

The town has sued to obtain the data, relying largely on a recent court decision resolving a similar impasse between the City of Waltham and the state, in that city's favor.

In the Waltham case, DHCD refused to provide the same type of records under the public records laws in Superior Court, Heim told YourArlington Jan. 30. In that case, he said, the court directed DHCD to find some way of finding and sharing the information.

"The matter is now fully briefed in Superior Court, which I expect will direct DHCD to do the same thing they did for Waltham," he wrote.

The newsletter says the Arlington court case may take months. Once it is resolved, then the Housing Appeals Committee hearing on the 1.5-percent land-area claim resumes, and the committee must decide.

After that, the Housing Appeals Committee decision cannot be appealed immediately by either party, the newsletter says. At that point, the full ZBA-led hearing process on the project itself, called Thorndike Place, would have to continue to a resolution -- approval, rejection or approval with conditions. At that time, whichever party continued to dispute the 1.5-percent calculation could raise it as an issue in a court challenge.

"Arlington Land Trust continues to advocate for the permanent protection of the Mugar parcel as conservation land," its newsletter says.

The site lies almost entirely in the 100-year flood plain, is subject to regular and significant flooding, and is a critical storm-water buffer for the surrounding neighborhoods of East Arlington. 

Samantha Kaufman, deputy director of communications, state Executive Office of Housing and Economic Development, thanked YourArlington for its inquiry, but declined to comment on pending litigation.

Town wrote Jan. 29 that the complaint seeking the records was filed last June. The case is pending in Middlesex Superior Court. 

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 news summary was published Monday, Jan. 29, 2018, and was updated, to reflect when the case was filed; on Jan. 30, to add comments; and on Jan. 31, to add details..

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