Town Counsel: Medfield has 'Very Few Options' to Stop 40B Developments

Medfield Town Counsel Mark Cerel delivered a clear and discouraging message to nearly 30 residents in attendance at Tuesday’s Board of Selectmen meeting to discuss their 40B concerns: “The town has very few options.”

“I don’t want to give anyone any false expectations,” Cerel told those in attendance Tuesday. “The town has very few options in defensing these 40B projects as long as we are under 10 percent of affordable housing in the town. … I don’t want you to shoot the messenger. I’m not happy with it but it is what it is.”

Medfield’s current percentage of affordable housing offered in town is approximately 4.4 percent – meaning until it reaches the state's 10 percent requirement, it may be subject to 40B proposals like the for the foreseeable future.

In an effort to address the town’s 40B requirement, selectmen supported a housing development plan at the former . The plan, according to current Board of Selectmen chair Osler Peterson, called for 256 units on the grounds of the former state hospital. At the time of the proposal, selectmen asked for the density of the housing development to be increased to reach the town’s 10 percent of affordable housing. When all was said and done, the 2005 proposal called for a 440-unit housing development.

“That’s how we were planning to get above the 10 percent affordable housing,” Peterson said. “That just hasn’t gone forward because the real estate market was so bad that [the Division of Capital Asset Management] stopped pushing on it and now they’ve been looking at the cleanup only [at the state hospital] so that [housing plan] hasn’t happened at all.”

Peterson said that 440 housing unit proposal is “completely off the table” now as DCAM has decided to take a “fresh” look at reuse possibilities for the site, leaving the town vulnerable for 40B developments to pop up in other areas around town.

Cerel explained while the town can explore more desirable 40B options in town, rather than apartment complexes, it faces an "uphill battle" in preventing a development when it is proposed to the town.

“What you need to understand is the state is entirely supportive and in fact encourages towns be proactive in their own housing and working with groups such as Habitat for Humanity and even private developers for that matter,” said Cerel. “That being said, unless you have put a program in place and are actually implementing it, that does not stop a developer from coming out of left field with a proposal and proceeding with it and that is pretty much where we are right now [with West Street].”

Peterson added to Cerel’s point.

“We are just stuck dealing with this proposal [on West Street],” Peterson said. “It hasn’t actually been made yet, all we’ve gotten is this notebook that has been delivered to [Town Administrator Michael Sullivan]. There’s no actual application for a permit [submitted to the town yet].”

While there are few options for the town when a developer submits a proposal for a development, the town, through the Zoning Board of Appeals, can negotiate and discuss the types of units, density and size of the development.

“There is no downside to sitting down as a town with a developer to see how flexible they are in terms of how they come up with the mix of apartments they are going to be offering,” Cerel said.

Cerel made several points of information regarding 40B for those in attendance Tuesday:

Taking Land Proposed for 40B Development by Eminent Domain

“I had heard anecdotally about a possible warrant article to authorize eminent domain [for the West Street property],” Cerel said. “I can tell you right now there’s case law that goes counter to that in judicial court of Massachusetts. As far as the particulars for the [Zoning Board of Appeals] turning a project down … it’s a very uphill battle to defense that ­– it’s almost impossible. The rights of abutters are extremely limited as well.”

Legislative Mandate for 40B is Strongly Supported

“There’s a very strong constituency that supports [40B’s legislative mandate] both in terms of the affordable housing people and the real estate development community,” Cerel said. “Make no mistake about it, this is not about affordable housing in any respect, this is about real estate developers making a profit on marginal land.”

Attempts to Repeal 40B Have Failed

“[In] the last election, there was an attempt to repeal it and it did not happen because frankly, the urban areas – this does not affect them, so they don’t have the same concerns as folks this way have,” Cerel said. “It becomes the urban versus the suburban and they’re stronger.

“There’s been numerous attempts if not to repeal the legislation to at least amend it in ways that makes it a more level playing field or more [balanced] and those have been defeated as well.”

Real Estate Market has had Negative Impact on 40B

“The only thing working towards communities’ favors right now is the real estate market has been very badly impacted and 40B projects in particular,” Cerel said.

Rental Housing Units are More Popular to Developers

“There was a lot of homeowner-type projects like condominiums and that sort of thing [in the past] because that’s where the money could be made,” Cerel said. “Now, rental housing is back in vogue. Particularly, developers that have sources of funding other than traditional banks ­– private equity lending, etc. – are what are fueling them. We are seeing some trending towards large, multi-family apartment complexes and certain types of firms that develop these.”

Peterson pointed to the proposal on West Street as an example of Cerel’s point.

“That’s what happened on West Street,” Peterson said. “It morphed from 37 unit ownership condominium 40B to 96-unit rental structure.”

40B Process is Handled in Town by ZBA

“The process as far as the town making a determination on 40B goes through the Zoning Board of Appeals,” Cerel said. “There will be a pre-meeting with the Affordable Housing Committee but their mandate is to create affordable housing so that’s their issue.”

Affordable Housing Targets Young Families

“The state has taken a very strong position that affordable housing must be attractive to young families with children,” Cerel said. “Part of the last real estate boom was affordable housing for the over 55 [seniors], which was billed as a win-win. Communities got to meet their 10 percent and developers got to make money on the units. Before the market fell apart, the state had caught on to that and said ‘no, what’s needed is housing for young families.’”

Clarifying the Misconception of People Who Qualify for Affordable Housing

“To reduce any concerns, affordable housing is defined as housing for those persons who are at 80 percent of median income for Massachusetts,” said Cerel. “We are not talking ‘welfare’ types here. We are talking about 80 percent median income. We are talking about town employees, talking about your family members, people who are just trying to establish a start in life. That’s what the whole thing is focused on.”

The town of Medfield will hold a 40B information night on Tuesday, Feb. 28. Town officials are still discussing the time and location of the event.