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

UPDATED Jan. 4: Christian Klein, chairman of the town Zoning Board of Appeals, wrote the following explanation about the process involved in the Mugar project, named Thorndike Place, approved in November. His comments were originally posted to the Arlington email list on Jan. 1 and are republished with his permission. Some of the terms referred to below, including "safe harbor," are outlined here >> The update includes an important addition at the end.

The comprehensive permit application for Thorndike Place was filed in 2016. The rules for how the project is reviewed are supposed to be locked in at that time.

The local zoning bylaw and wetlands bylaw in effect at that time are the basis for the waiver requests by the applicant. The state of Arlington's affordable housing at that time is also used as the reference for the determination of safe harbor.

The town is well short of meeting the 10 percent of all housing units threshold for meeting the state's affordable-housing goals.

Safe-harbor complexities

Things get fuzzy due to the legal cases surrounding the ZBA's assertion of safe harbor under the 1.5-percent calculation. The town initially submitted evidence that the town met this threshold, and the applicant appealed.

The state found for the applicant, and the town appealed. The state then issued revised guidance on how the figure is to be calculated, guidance which made the threshold harder for the town to meet. The final decision of the court was that the hearings had to proceed, but the town reserved its right to pursue the case regarding the 1.5 percent after the conclusion of the comprehensive permit hearing.

At that time, the town was asserting a figure of 1.53 percent, and the applicant and the state were asserting a figure of 1.37 percent. There was agreement on the Subsidized Housing Inventory-eligible land area (the numerator), but the town asserted a smaller amount of total eligible land area (the denominator) than the applicant and the state.

The issue is how the state considers land eligible for development. The statute includes almost all the land in the residential, commercial and industrial districts that allow residential development.

Cemeteries, private ways

This includes land that is not really open to development like private cemeteries and private ways. The board's current understanding is that with the construction of both comprehensive permit projects, the town's meeting the 1.5-percent threshold depends on whether the state allows the town's private ways to be excluded from the denominator.

The "three-tenths" provision allows a community to declare safe harbor if there is ongoing construction of new affordable housing developments on a significant area of land. The threshold is 3/10 of 1 percent, or 10 acres, whichever is larger. Given the size of Arlington, the 10 acres is the applicable threshold.

The two recently approved comprehensive permits -- 1165R Mass. Ave. (Mirak) and Thorndike Place (Mugar) -- include less than eight acres combined, so this doesn't effect project eligibility unless the approval of a third project would lead to construction on sites in total exceeding 10 acres. This is reviewed annually. For more details, refer to the code at 760 CMR 56.03(3)(c).

[Asked to explain "less than eight acres," in that the Mugar site has nearly 18, Klein explained Jan. 3: "At Mugar, the original set of parcels are being reconfigured, so the developed site is 5.6 acres, and a separate 12 acres parcel is being set aside for conservation. Only the 5.6 acres count towards meeting local housing needs."]

By state regulation, we can only count the land area directly related to the development. If the land remained as a single large parcel, we would still have been limited to the 5.6 developed acres.

2016 housing plan updated

The town does have a Housing Production Plan, approved by the state in 2016. Per statute, the town is considered in compliance with the plan when it creates new SHI-eligible housing totaling 0.5 percent of all housing units in town per year. That number was set at 99 units annually by the state, which the town has not produced. The plan needs to be reviewed and reapproved every five years, which is why the Redevelopment Board was holding hearings on the plan at the end of last year. (It was continued to January.)

The definition of a large project is equal to 2 percent of the total housing units in town. This would be a development of 396 units or larger. Thorndike Place was originally proposed at 219 and reduced to 136, so it never came close. The plan at 1165R Mass. Ave. was smaller than that.

A related application would be an application for a comprehensive permit filed within a year of another application for the same property meeting certain criteria. I don't know when the last permit was filed for the Mugar property, but it was a long while ago.

These are the seven criteria established in the governing state regulations (780 CMR 56.03), which would allow a community to declare that it is meeting the state's goals for affordable housing. In the absence of meeting these goals, the state has declared that the prevailing local need is for the creation of more affordable housing.

The town has been unable to create the requisite affordable housing through the application of the town's inclusionary zoning bylaw (Section 8.2 in the zoning bylaw) and the work of local governmental and nonprofit organizations (Arlington Hiusing Authority, Housing Corp. of Arlington, etc.), so the town is eligible for development under the comprehensive-permit laws, and the decisions of the ZBA are eligible for appeal to the state Housing Appeals Committee. This is the intent of the statute -- create more affordable housing.

Update: Town in compliance for one year

On Dec. 21, 2021, the state Department of Housing and Community Development certified the town’s compliance with the goals of its approved Housing Production Plan from 2016, and in accordance with 760 CMR 56.03(4), the town may assert its compliance for a period of one year, until Sept. 16, 2022.

This is a result of the addition of new housing units approved for the 1165R Mass. Ave. development on Sept. 17, 2021.  The DHCD also revised the town's Subsidized Housing Inventory eligible unit list, and the town's percentage of SHI eligible units now stands at 6.3 pecent.  (Under state rules, all the units in an SHI development count towards the total, not just the designated affordable units.  All 124 units at 1165R Mass Ave count towards the total.)


Dec. 27, 2021: Mugar developer appeals, delaying neighbors' lawsuit

This explanatory viewpoint was published Monday, Jan. 3, 2022, and updated the next day.