Zoning board readies one of its Mugar project defenses

The town's Zoning Board of Appeals voted unanimously on Tuesday, Dec. 23, to endorse the finding that more than 1.5 percent of town land is dedicated to affordable housing.

Calculations using the town's mapping systems and other sources show the level at 1.53 percent, a memo from Town Manager Adam Chapdelaine says.

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The issue is important as the town prepares to defend itself now that a state agency has deemed a 40B application by the developer of the Mugar project in East Arlington eligible.

But many issues remain: The process is complex, and the town faces resistance from the state, which does not yet accept the town's numbers.

The town's calculation of the 1.5-percent level "does not mean 40B is dead," Town Counsel Doug Heim told the zoning board.

For example, he said, groups homes are among the property that should be included in the calculation, but the state declines to provide the numbers, because of confidentiality concerns.

In addition, St. Paul's Cemetery, an area along Broadway unlikely to be developed, is zoned Residential 1.

"It defies common sense," he said.

Counsel aids board

Heim spoke to provide his help to a board that is expected to receive this winter an application for a comprehensive permit from Oaktree Development. The North Cambridge builder has proposed 219 units of housing near Route 2, a project that drawn persistent opposition from nearly all town officials as well as Arlington's legislative delegation.

Once a permit application has been filed and the hearing is set, Heim advised the zoning board to assert the town's calculation that its affordable housing exceeds 1.5 percent. He suggested doing so at each hearing, but it was up to the board to decide whether to do that.

Once a board asserts its 1.5-percent level, a permit applicant has 15 days to appeal to the state Housing Appeals Committee. Heim said that body is "not the friendliest to ZBAs." A successful appeal could go to Superior Court.

The Mugar project is eligible to be built under Chapter 40B, a 1969 state law aimed to increase affordable housing. Its more recent history shows it is used to allow projects to avoid local zoning rules.

40B enables local zoning boards to approve affordable housing under flexible rules if at least 20 to 25 percent of the units have long-term affordability restrictions.

The program is controversial, because the developer has the right to appeal an adverse local decision to the state in communities with little affordable housing (less than 10 percent of its year-round housing or 1.5 percent of its land area).

Communities that have not yet met one of these thresholds can also receive one- or two-year exemptions from state appeals by adopting a housing production plan and meeting short-term production goals.

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As of July 2011, 47 cities and towns are appealproof -- 39 because they have met the 10-percent goal, at least three more because they have met the land area standard, and another five with two-year exemptions. Communities above the 10-percent or 1.5-percent threshold can still accept 40B development proposals at their choice.

The 10-percent benchmark was not discussed in any detail at the Dec. 22 board meeting.

'Not tied to Westminster'

Pam Heidell, board chair, began the 40-minute discussion of the 1.5-percent calculation by saying that it "is not tied to Westminster." She was referring to the 40B project by the Housing Authority of Arlington at Downing Square that recently considered by the board.

Heim acknowledge that in the audience were two town "veterans" of 40B issues -- John Belskis, who until 2010 chaired the Coalition to Repeal 40B, and longtime housing activist Patricia Worden.

Belskis recounted that 10 years ago be brought to selectmen his findings that 1.67 percent of land was affordable. He said he reached his numbers "manually," combing public records, before the town had a geographical information system, managed by Adam Kurowski.

"The DHCD does not want towns get 1.5," Belskis asserted, referring to the state Department of Housing and Community Development.

Voting to support the town's 1.5 level were Patrick Quinn, Christian Klein, Roger DuPont, Joseph Moen, Suzanne Spinney and Heidell.

"Good luck," Belskis said. "Now you have to defend it."

Dec. 21 memo from Town Manager Adam Chapdelaine to Zoning Board of Appeals

RE: 1.5% "Safe Harbor" Calculation, Mass. General Laws, Chapter 40B, Section 20

I am writing to you to provide the attached two page memorandum outlining the parameters, data, and process used by Geographic Information Systems ("GIS") Director Adam Kurowski to determine whether or not 1.5 percent or greater of the Town's "total land area zoned for residential, commercial, or industrial use" is dedicated to deed-restricted affordable housing for the purpose of the ZBA invoking "safe harbor" status under c. 40B sec. 20. This calculation was performed utilizing GIS data and in consultation with former Planning Director Carol Kowalski, Acting Planning Director Laura Weiner, the Legal Department and this Office.

As you will see, the result of this calculation finds that the Town's total land area dedicated to affordable housing as defined by c. 40B is presently calculated to be 1.53 percent. I hope this information proves useful to you.

Should you have any questions, I am happy to forward them to the appropriate personnel. Town of Arlington, MA Affordable Housing Calculation Using Geographic Information Systems

1.5% calculation chart, Dec. 22, 2015.Summary of affordable-housing GIS calculation: Chart updated Dec. 22, 2015.

Criteria for General Land Area Minimum:

The Town of Arlington's Geographic Information Systems (GIS) was used to calculate the amount of developable land using the following criteria set forth by the state in 760 CMR 56.03(3) (B):

a) Total land area shall include all districts in which any residential, commercial, or industrial use is permitted, regardless of how such district is designated by name in the town's zoning by law;

b) Total land area shall include all unzoned land in which any residential, commercial, or industrial use is permitted;

c) Total land area shall exclude land owned by the United States, the Commonwealth, or any political subdivision thereof, the Metropolitan District Commission or any state public authority;

d) Total land area shall exclude any land area where all residential, commercial, and industrial development had been prohibited by restrictive order of the Department of Environmental Protection pursuant to MGL c. 131, 40A. No other swamps, marshes, or other wetlands shall be excluded;

e) Total land area shall exclude any water bodies;

f) Total land area shall exclude any flood plain, conservation or open space zone if said zone completely prohibits residential, commercial and industrial use, or any similar zone where residential, commercial or industrial use are completely prohibited.

Note: Arlington does not have land as described in b) and is not excluding any land described in f).

GIS Process:

The Arlington GIS Office used proprietary mapping software to access GIS datasets and the property database to make General Land Area Minimum and Affordable Housing Land calculations based on the criteria above. A summary of the GIS process is described below.

Total Zoned land (a)

Process: Arlington's GIS parcel layer includes acreage for fee owned parcels (FEE), road rights-of-way (ROW), railroad/Minuteman Bikeway (RAILROAD), and water (WATER). Arlington's GIS zoning layer was applied to each parcel. As described in a) above, all residential, commercial, or industrial land that is not considered road right-of-way, railroad/Minuteman Bikeway, or water was calculated.

From this total land area, the acreage of all water bodies was subtracted.

Total Excluded Land (c, d, & f)

Process: Excluded land was calculated by joining the property database with Arlington's GIS parcel layer. The following categories of parcels were identified and an attribute was added to the data to signify its status.

Zoning - any parcel having a non-residential, non-commercial, or non-industrial zoning type was considered excluded and given an attribute of (Zone). As described above, the GIS zoning layer was applied to the GIS parcel layer to derive this information.

Ownership - any parcel owned by the United States, the Commonwealth, or any political subdivision thereof, the Metropolitan District Commission or any state public authority; this includes all Town of Arlington government entities, was considered excluded and given an attribute of (Own). The property database was applied to the GIS parcel layer to derive this information.

Permanently protected land - any parcel or portion of a parcel protected under Chapter 97 law or by conservation restriction were given an attribute of (PrOS). The GIS open space layer was applied to the GIS parcel layer to derive this information.

Wetlands - any parcel that was completely covered by a wetland was given the attribute of (Wet). The GIS wetlands layer was applied to the GIS parcel layer to derive this information.

Result: Any parcel having one or more of the items listed above was considered excluded land.

Affordable Housing Land

Process: Using records from the Department of Planning and Community Development, an Affordable Housing GIS layer was created using data from the property database and from GIS.
The data represents all land associated with affordable housing units. When affordable housing units represent a fraction of the total units on a property, GIS is used to calculate the proper land area percentage. Each property with affordable housing has, from the property database, the total land area and the total number of units. Each property also has the total number of affordable units, a calculation of percent affordable units, and a calculation of affordable unit land area.

Result: All affordable housing units have a value for affordable housing land using the inputs detailed above.

Affordable Housing Land as a Percentage of General Land Area Minimum

Process: Total Zoned Land was subtracted by Total Excluded Land to calculate the General Land Area Minimum, which is set forth by the state in 760 CMR 56.03(3)(B). Affordable Housing Land was divided by General Land Area Minimum to calculate the Affordable Housing Land Percentage.

Dec. 9, 2015: MassHousing approves Mugar 40B application

Nov. 24, 2015: Mugar developer submits document, and town awaits 40B decision
Oct. 7, 2015: Selectmen respond to MassHousing; agency expected decision soon
Sept. 25, 2015: Mugar developer submits 8 project documents after August deadline
Aug. 19, 2015: Selectmen's comments on Mugar project sent to MassHousing
Aug. 13, 2015: Details few as Mugar site developer looks ahead
July 15, 2015: Hearing on Mugar site appliocation tough to schedule 
June 29, 2105: July 22 meeting set as developer moves toward 40B Mugar application
June 9: Step toward 40B filed for Mugar site; town seeks more time to respond
May 26, 2015: Speakers at Hardy send a clear message about Mugar site: NO
Cambridge Day, April 26: 3-year Cambridge master-plan process to start with Alewife
April 5, 2015: Coalition responds point by point to Mugar developer's statements
Opinion: Arlington's Belskis on 40B
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 report was published Wednesday, Dec. 23, 2015.

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