Housing committee rules against town in Mugar case

Back to the ZBA, but not Oct. 29

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

UPDATED, Oct. 25: The state Housing Appeals Committee  (HAC) has ruled against the town in the long-running effort to develop the Mugar property in East Arlington.

The Zoning Board of Appeals’ case to assert “safe-harbor” status to block development of townhouses on wetlands by Arlington Land Realty has failed, and the developer's attempt to build Thorndike Place near Route 2 was to resume Tuesday, Oct. 29, before the ZBA, but that appeal has been postponed by the applicant, with no reason provided. See below for a link to the full decision as well as the town's objections.

Town Counsel Doug Heim told YourArlington on Thursday, Oct. 24: "The end result is that the HAC credited the applicant's calculation of the town [affordable housing] as being at 1.37 percent, as opposed to our proposed 1.53 percent.

"There are several facets of the decision procedurally and substantively, which both I and special counsel find particularly untenable." He vowed to provide explanations.

A year ago, the project, then suspended in two years of legal limbo, finally received a state hearing, which began Oct. 25 and concluded Nov. 2. A ruling was expected last spring. It did not come until Oct. 15.

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 1.53 percent of the town’s total land area. If Arlington could prove that it does, the town would achieve “safe-harbor” status under Chapter 40B, a state law, and the town could block the 219-unit project proposed on 17 acres between Thorndike Field and Route 2.

That did not occur under the Oct. 15 decision.

You can read the decision in full here as well as the town's objections from August >> 

Two days ago, Heim first informed the a group opposing the development, the Coalition to Save Mugar Wetlands. 

As to Tuesday's hearing, Heim wrote: "I also want you to know that the ZBA will reconvene its hearing on the application next Tuesday, October 29th because it must reconvene within 30 days of the decision.

"The reconvene will be for the limited purposes of affording special counsel the opportunity to refresh the ZBA on the status of the matter, re-state that the ZBA deemed the application incomplete in 2016, discuss the peer review experts the Board will need to review the application, and pick a date to substantively begin discussing the application.

"It is not the Chair’s intention that Arlington Land Realty will resume its presentation, or that public comment will be heard at that time. We are aware that the applicant and interested residents will both likely want some time to prepare for substantive presentation and scrutiny of the application."

A spokeswoman for Oaktree Development has been asked to comment.

Water bodies

As reported in 2018, 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,” Jon Witten, the town's special counsel, said at the time.

Oaktree Development’s attorney, Stephanie Kiefer, of the law firm Smolak & Vaughan LLP, disagreed: “The ZBA seeks to exclude water bodies to distort the regulations, and [Adam] Kurowski [a town employee] 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 was next in 2018

The Oct. 25-Nov. 2, 2018, 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, 2018: "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 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
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 Thursday, Oct. 24, 2019. It included background reported by Susan Gilbert. It was updated the same day, to note a postponement, as well as Oct. 25, to add links to documents.