Peterson: Answering Questions About the Proposed 40B Complex on West Street

Medfield Board of Selectmen chair Osler "Pete" Peterson shared his thoughts and provided some answers to reader questions regarding the 40B affordable housing complex proposed to be built on West Street.

The following response to the Medfield Patch article, "," was published on Peterson's blog, "Medfield 02052."

Here are my responses to the questions raised about the proposed 40B on West Street.

Shawn Collins asked:

“Do the Planning Board members and your fellow Selectmen still have the same opinion of 40R, especially with current sentiment from residents over the Gatehouse Group LLC’s proposed project?”

The opinions of my colleagues on the selectmen and planning board about 40R were expressed at one meeting about employing 40R at the , so I do not know their current opinions with respect to the Gatehouse project.

“Does the Gatehouse Group benefit from the fact that the Medfield North Meadows LLC’s proposed project was already permitted by the Town back in 2008? Are they (Gatehouse) submitting what is essentially the same plan? What kind of timeline for approval are we looking at here?”

The two , as the current proposal is for 96 rental apartments whereas the previously approved and permitted proposal was for around 37 ownership condominiums. The prior proposal should have no effect on the current proposal. Almost all town permitting on a 40B is done by the Zoning Board of Appeals of the Town of Medfield, whereas in the usual course, the planning board would permit many aspects of a non-40B development. Where the ZBA is dealing with so many issues, it often needs multiple hearing dates to get all the information that it needs to be able to make its decision, and each hearing date needs to be advertised weekly for two weeks, so the process can be extended. Once the hearing is closed, the ZBA has 90 days to issue its written decision. The members of the Zoning Board of Appeals of the Town of Medfield are all volunteers, and the decisions must perforce get written around their regular jobs, so they often need all that time to get the decisions done.

Under 40B, only 1/4 of the units built need to be actually affordable, and the rest can be market rate units. With owned units (condominiums), a town only gets credit on its affordable housing totals for the 1/4 of the units that are actually the affordable units, whereas, with rental units (apartments), the town gets credit for all the units in the project towards its affordable housing despite only 1/4 of them needing to be actually affordable units.

As that applies to the West Street site, if my recollection of the number of units in the prior proposal is correct, the town would have only been credited with an additional nine units of affordable housing, whereas the apartment proposal would credit the town with 96 units of affordable housing.

The current proposal is to have all 96 units actually provide affordable housing, despite only being required to have 24 provide affordable housing to qualify under 40B.

Rich Callahan asked:

“When does the town meet to discuss this significant matter? Do you know how many states have 40B, can it be overturned?”

The town can go to the public hearings before the Zoning Board of Appeals of the Town of Medfield on the proposed 40B to provide input on the specific project.  The town meetings and/or the Board of Selectmen meetings are the places to have discussions about affordable housing strategies. I do not know what is done about making affordable housing possible in other states. 40B was the subject of a recent initiative petition drive, asking that it be overturned, and the state’s voters opted to keep it in place.

Errin Chapin commented:

“I think it is ridiculous that our town cannot protect itself against these situations. How do you go about getting the state to take this burden into consideration when the project is appealed? Given the fact that the state is already in a position to ruin our town, adding this additional potential development is that much more disturbing. Not sure when the state passed this ramrod bill that they even understood the infrastructure domino effect. I will ask again, is there no tax on developers?”

Impact fees on developments in Massachusetts are controlled by the case of Emerson College v. City of Boston, which set forth a three part test of a legal fee from an unconstitutional tax. Those criteria were used to invalidate Franklin’s $2,500 fee per new house to cover increased school costs. Massachusetts courts have upheld as OK fees for moorings, annual sewer use charges, and electrical hook up fees. Towns are not allowed to charge the developers for the costs that may occur because of the 40B development. The state’s Housing Appeals Commission has rejected town arguments against 40B projects on the basis of school crowding, drainage, traffic, sewers, water, noise, inconsistency with local plans, environmental degradation, open spaces, and density.

The Board of Appeals must approve the 40B, or it will be approved by the state Housing Appeal Commission. The trick is for the Board of Appeals to attach reasonable conditions. The standard is that the conditions may not make the project “uneconomic.”

The Massachusetts rulings have been on the more restrictive end of the spectrum.