By slim margin, state rules against town's affordable-housing numbers

UPDATED, Nov. 30:  The town Zoning Board of Appeals voted unanimously Tuesday, Nov. 29, to appeal the state's rejection of the land-area calculation for affordable housing for the 40B Mugar project in East Arlington. 

Zoning Board of Appeals logo

That is expected to delay the next public hearing in the matter for months. A meeting summary will be published.

The action comes after the state has agreed with Mugar site developer Oaktree that the Town of Arlington did not meet the 1.5-percent threshold for affordable housing as asserted by the town Zoning Board of Appeals last September -- by a relatively slight difference in numbers.

Town Manager Adam Chapdelaine confirmed Thursday, Nov. 25, that the state Department of Housing and Economic Development had cast its decision against the town. Selectmen heard a report about the issue from Town Counsel Doug Heim at its Monday, Nov. 28, meeting. 

The zoning board considered at its Nov. 29 meeting whether to appeal to the state Housing Appeals Committee (HAC) the decision regarding Thorndike Place., and it decided to do so.

Heim expressed dismay at a state response citing "mistakes" in the town's submission of affordable-housing data. "These are not mistakes," he told the board. "This is what the own is allowed to assert."

Why town, Oaktree calculations differ

The Nov. 17 letter from Louis Martin, associate director, Department of Housing and Community Development, notes differing calculations for affordable housing from the town and Oaktree. The town says it has 30.82 acres of affordable-housing land compared to 1,969.08 acres total land, or 1.56 percent. That is above the "safe harbor" of 1.5 percent.

Oaktree Development cites the same number for affordable-housing land, but lists total acreas at 2,203.26. That comes to 1.39 percent, or below "safe harbor."

As Heim explained to selectmen Nov. 28, the difference of views focuses on how the town's bodies of water are included in calculations.

He said the town followed state statute, which says bodies of water are supposed to be subtracted from total buildable land, but water bodies have not been counted in this category. Oaktree's representative argues that the town counted water bodies twice.

The matter has been raised in other 40B projects, but a definitive decision about it remains to be seen.

Other areas of disagreement, officials said, relate to the group homes in town. The state keeps those properties confidential, leaving the town to include them using estimates, and the developer did not agree with the number.

An appeal of this decision must be made by Tuesday, Dec. 6

Read the full text of the Nov. 17 letter here >>

The Coalition to Save the Mugar Wetlands, the group that has opposed the project called Thorndike Place from the beginning, urges its members to provide support for the zoning board to pursue an appeal.

"Let's make sure our voices are heard," an email sent Sunday, Nov. 27, says.

" ... Without an appeal, this would allow the Mugars/Oaktree to begin development without the approval of the Town of Arlington ...."

" ... The ZBA is on our side and intending to appeal [to] the HAC; however, WE NEED TO BE HEARD LOUD AND CLEAR, that we are still opposed to this development! We only stand a chance if citizens and local government stand as one."

The email urges coalition supporters to meet with signs outside Town Hall at 7:15 Tuesday, Nov. 29.

The email is signed by the communications team for the Coalition to Save the Mugar Wetlands, listed as Clarissa Rowe, Erin Freeburger, Eva Bitteker, Pama Miller and Parul Vakani.

On Nov. 1, YourArlington reported that representatives of Oaktree, seeking to develop the Mugar site near Rt. 2, had appealed the September vote of the town's Zoning Board of Appeals. 

The action, based on the view of a consultant for the Cambridge developer that the town does not have enough affordable housing, takes the case to the state, which had 30 days to decide the case.

A second hearing on the Mugar plan was to be held Tuesday, Nov. 15, but the appeal puts that on hold.

Asked to explain the basis of Oaktree's appeal, company Vice President Gwen Noyes wrote Tuesday, Nov. 1: "As you know, the regulatory and zoning processes for evaluation of a chapter 40B project are pretty prescribed.

Claims town error

"Shortly after the initial public hearing [Sept. 27], the Board gave written notice that it sought to avail itself of a Safe Harbor under the regulations. There is a detailed process prescribed under 40B to work through the calculations.

"Based on data provided by the Town, Oaktree contracted with professional GIS consultants to calculate the Town's various zoned land areas to determine if in their professional opinion, the qualified land area and percentage derived by their investigation, does in fact, comport with the Town's calculations.

"As it turns out, our consultants' independent calculations, checked and rechecked by them, have led our team to the conclusion that an error was made by the Town, and that the qualified land area is less than the 1.5.% required."

In a follow-up, Noyes declined to name the consultant. "The GIS consultant's name is likely in the public record at the DHCD [the state Department of Housing and Economic Development]; I respect their confidentiality in this situation," she wrote.

Town Counsel Doug Heim did not respond to a request to identify the consultant or spell out the next steps in the case.

Selectmen voted Nov. 14 on a letter intended to help the zoning board have a sustainable case in court. It was written with substantial help from Jon Witten, the town's special counsel on 40B matters. That section of state law refers to a 1969 statute aimed at expanding affordable housing but used increasingly in the last decade by developers seeking to skirt local laws.

Oaktree seeks a comprehensive permit to build a 219-unit 40B project on 17.17 acres along Route 2 in East Arlington.

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 Thursday, Nov. 24, 2016, and updated Nov. 30.

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