The same day that East Arlington neighbors filed suit aiming to stop the Mugar project, the Boston corporation representing the land owner countered with an action to the state Housing Appeals Committee.
The latter plea must be resolved first and delays court consideration of the neighbors' lawsuit. A conference of attorneys for both sides is scheduled for Jan. 6 to determine the next steps.
Stephanie A. Kiefer, of Smolak & Vaughan in North Andover, represents Arlington Land Trust Realty, the Boston corporation operated by the Mugar family that owns the 17.7-acre parcel near Route 2 where Thorndike Place would be situated. The developer is Oaktree of North Cambridge. Counsel Doug Heim represents the town.
Kiefer filed her action Dec. 21, naming the town Zoning Board of Appeals as the defendant, with the state Department of Housing and Community Development's Housing Appeals Committee.
One focus of the case is the "safe-harbor" provision of the Chapter 40B of state law. Since September 2016, the town has said it has met the standard, and the developer has disagreed, and in 2019 the Housing Appeals Committee ruled in the developer's favor.
Chapter 40B of the Massachusetts General Laws, in effect since 1969, allows developers to seek comprehensive permits from local zoning boards for housing projects that include affordable housing. To ease municipal concerns that Chapter 40B unfairly limits local control over development decisions, the Department of Housing and Community Development issued regulations in 2003 that create certain “safe harbors” allowing municipalities to deny or place conditions on comprehensive permits without the threat of appeal.
In 2008, the state agency expanded these safe harbors. Specifically, a municipality may qualify for a “planned production” safe harbor if the state housing agency approves its housing production plan and the city or town then approves new affordable housing units equal to 0.5 percent of its existing housing stock.
Under the expanded regulations, a municipality that qualifies for this safe harbor is free to deny any Chapter 40B applications for the next 12 months.
Here's some of Arlington's history as to a safe harbor, according to the developer's appeal: At a Sept. 27, 2016, public hearing, the Mugar project applicant was told that the Town of Arlington has satisfied the statutory 1.5-percent general land-area minimum, or the “safe-harbor claim.” The appeal objects to the characterization of “local needs” as described in
the decision and that the decision is not consistent with local needs under the Chapter 40B and its regulations.
The legal action asks the Housing Appeals Committee to make final the “Interlocutory Decision Regarding Safe Harbor,” dated Oct. 15, 2019.
It also asks that the comprehensive permit be modified by eliminating the conditions to which the developer object and by granting the waivers that the developer requests.
In granting the permit for Thorndike Place on Nov. 22, the Zoning Board of Appeals listed a series of 123 conditions. The proposal by Oaktree Development was revised last May and updated in June to reintroduce six two-family townhouses along the frontage of Dorothy Road. A four-story senior independent living facility is proposed for the parcel to the rear of the town homes.
Among the developer's objections to the ZBA's decision are these:
- Certain of the conditions "imposed cumulatively render the project uneconomic, in violation of G.L. c. 40B, s. 20 and 22"; and
- It "fails to apply local requirements and regulations as equally as possible to Subsidized and Unsubsidized Housing."
The developer's appeal also objects to these conditions, among others:
- "Condition C.1.a requires that prior to construction or any site development, whether or not the work requires a building permit, that Applicant to deliver a 'reasonable amount' as determined by the Director of Planning and Community Development. While the initial amount is to be no greater than $6,500, the Director of Planning and Community Development at any time may require additional funds without limitation on amount. The use of such funds is stated to hire civil engineers, traffic engineers and/or other professionals beyond municipal staff. The
condition is not consistent with any municipal fee schedule established by bylaw or regulation; and allow for fees to be set on an ad hoc basis by the Director of Planning and Community Development"; and
- "Condition C.1.d requires the Applicant to submit a landscaping plan for all non-wetland/non-buffer areas, which prohibits the use of non-cultivar plantings. There is no local regulation or bylaw that restricts the use of cultivars and it is not believed that such restriction has been imposed on other residential projects."
Dec. 22, 2021: Neighbors file lawsuit against ZBA, Mugar developer
This news summary was published Monday, Dec. 27, 2021.