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

Medfield Board of Selectmen chair answers readers' questions regarding the proposed affordable housing 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.

John Belskis January 31, 2012 at 04:21 PM
A few points about the 40B and 40R utilization. 40B does not exist in any other state. RI tried to use its format and after one year dumped it for a program that most other states use, which relies on a regional approach rather than an individual city or town. Connecticut for example reguires developers of comprehensive housing projects to provide 30% as affordable units. If you believe in the need for affordable housing then it's a farce that 40B is counting 75% of the market rate units in a rental project as affordable units. The numbers presented during the campaign of 58,000 units created with 28,000 affordable, then used many of the 75 % non affordable in their figures. If you want to avoid situations detailed in the many audit findings of the Inspector General's audits, where excess profits due the towns were never paid you may want to consider a bylaw stipulating that all comprehensive permit ZBA public hearings require testimony to be under oath and recorded by a court stenographer that is engaged at the developer's expense. There are some things about 40R that are also reason for concern.
Shawn Collins February 01, 2012 at 03:52 AM
For the residents of the area around the proposed project site, it would have been much more palatable to have the Medfield North Meadows LLC's proposal (37 condos) as the density would have been much lower. Why didn't the ZBA take that into account when they considered that group's request for an extension? Instead, they denied the extension and are now considering the 96 unit proposal from Gatehouse Group LLC. Although the Gatehouse Group LLC claims to have a Purchase & Sale Agreement to purchase the parcel from Medfield North Meadows LLC, they do not currently own the parcel. I feel like the ZBA let the residents of the area near this project down and now have put the Town in the position to have this 96 unit project forced down our throats. If I am misunderstanding the facts, please enlighten me. I appreciate the volunteer work that the ZBA does for the Town but I am not happy about what I see happening here.
Osler Peterson February 01, 2012 at 03:26 PM
The Zoning Board of Appeals of the Town of Medfield acts as a quasi-judicial entity, and its hearing and decisions are akin to court cases and decisions. The ZBA must apply the law to the applications before it, so it is not usually making political decisions, but rather legal interpretations of applications. Given that arena in which the ZBA operates, it does the best that it can for the Town of Medfield with respect to each application. My understanding of the ZBA decision in this instance is that they applied the legal requirement that applicants have control of the site in question, and since the current applicant (the apartments) had a purchase and sale agreement for the property, that means that they now controlled the site, which also meant that the prior applicant (the condo proponent) no longer did. I heard that the condo proposal did not proceed due to the market demand for such units changing, which is also why we now have the apartment proposal. I agree that lower density is usually better. However, the ZBA has to act on what is proposed, applying the law to what is proposed, and not just promoting what it would like to see.

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