Zoning board votes unanimously to appeal decision on Mugar project

Protesters erupt in cheers; move delays local process

UPDATED, Dec. 2: The town Zoning Board of Appeals (ZBA) 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 logoThe appeal to the state Housing Appeals Committee (HAC) regarding Thorndike Place is expected to delay the next local public hearing in the matter for months.

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.


AMCi video: Watch the whole meeting


Town Manager Adam Chapdelaine confirmed Thursday, Nov. 25, that the state Department of Housing and Economic Development (DHCD) 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 HAC, and it decided to do so. 

The state DHCD sides with the lower calculations for the town's affordable housing put forth by representatives of the Cambridge developer, Oaktree – 1.39 percent, as compared to Arlington’s number of 1.56 percent. The motion, taken at the Nov. 29 meeting held at Town Hall, was proposed by ZBA member Patrick Quinn, and passed unanimously.

This decision during the hourlong hearing was met with a rousing round of applause from the estimated 100 protesters attending the meeting at Town Hall.

Summary of decision to appeal

Heim, speaking on behalf of town officials, and Special Counsel Jon Witten, summarized the decision before the ZBA. Arlington received a Nov. 17 notice that DHCD had rejected the town’s assertion of “safe-harbor” status – that the town offered its evidence that more than 1.5 percent of its appropriate developable is used for affordable housing, and so a development may not be built under state Chapter 40B. That is the 1969 state law aimed at encouraging affordable housing but often used to circumvent local laws.

The town maintains that its data, methodology and legal reasoning are sound, but the state has agreed with Oaktree's numbers. 

Heim said the town can, and should, continue to take the matter to the next level, the Housing Appeals Committee. This action serves to assert the town's rights, he said, and to reserve the right for future appeals, if necessary. Heim referred to the Nov. 17 memo from DHCD. Read the full text here >>

ZBA member Roger Dupont said the state made a decision about the land that excluded how calculations are made. This provides an opportunity for the town to believe that Arlington’s inventory and calculations are correct.

Inquiring how the appeal will affect the time line of the process, Dupont said the state provides a substantive examination of opportunity in order to provide a great depth of evidence and testimony. He estimated it would take three to six months of hearing appeals to be stayed. Paul Haverty, who is an attorney and an impartial adviser to the ZBA, said he thought it would take eight months.

Down the road

Heim explained Thursday, Dec. 1, that if the HAC confirms the town's claim of its "safe-harbor" status, then that does not mean that the developer can't continue to pursue a 40B project.

Down the road, when the ZBA makes a decision of Oaktree's comprehensive permit, Heim said, that ruling -- which could be an approval, a denial or an approval with conditions -- will be final and the developer has to live with it

In the meantime, Heim said the ZBA had to vote to support the town's position on "safe harbor" in order to preserve its rights following a ruling by the HAC and months more of testimony after that by experts witnesses expected from, for one, the Conservation Commission.

Protesters express their concerns

During the meeting, protesters voiced their concerns over the development of 219 units proposed for a tract between Thorndike Field and Route 2 in East Arlington.

John Yurewicz says this is emotional and personal. “It’s state vs. town, developers vs. residents,” he said. “The town has spent time and money to create a master plan, and the town has lots of cherished spaces, of which this Mugar property is one. We have to stay together, and say no to this development.”

A representative from the Coalition to Save the Mugar Wetlands thanked the ZBA for their attention to this matter, adding, “We will see what comes next.”

Apart from protesters in the hearing room, 20 held signs on the front steps of Town Hall before the meeting, to alert passersby.

Other communities affected?

One resident asked whether we’re working with Belmont on this issue, because the proposed development also affects that town. Heim replied that it’s too soon to tell. We haven’t gotten into real substance, and the Board lacks sufficient information; this issue will come up later.

Asked to comment about the next steps Oaktree plans to take, Gwendolen Noyes, the developer's vice president, wrote Wednesday, Nov. 30: "We're all following a state-prescribed process. There's nothing to add to what I've previously given you."

Witten was asked the same question and asked to estimate how long the HAC process might take. He has not responded.


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, written by YourArlington freelance writer Susan Gilbert, was published Wednesday, Nov. 30, and updated Dec. 2, to add video link.

 
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