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Even if you’ve never been to a Zoning Board of Appeals meeting, and never thought you’d want to, you might want to be in the Aldermanic Chamber (tonight, December 4, 7pm start) for the opening night of the hearing on the 135-unit apartment project proposed by Dinosaur Capital Management for the commercially-zoned property at 70 Rowe Street.

Aside from the size of the project, which virtually, if not all, residents anywhere close think is way too big, and the fiscal impact to the city of converting more of our small percentage of commercial land to residential, the really big question is whether the city might tonight ask the ZBA to invoke the 1.5% defense for immunity to 40B projects.

It’s now an open secret among anyone who’s been paying attention to 40B and development issues, that an alternative to the well-known 10% of housing units standard, is the 1.5% Land Area Minimum standard, which if met, allows a municipality to reject 40B proposals it thinks are inappropriate. (See 56.03 Methods to Measure Progress Toward Local Affordable Housing Goals in the regulations here.)

A June 20, 2014 Planning Department memo on Court Street stated that the city had 110 acres of the required 118.17, or 1.4%. Since then, they have said this was an estimate, and they have been trying to determine the exact number. If you happened to be at the November 10 Land Use hearing on Wells Ave, you heard the city’s outside counsel, Dennis Murphy, say we may already be at 1.5%, and would likely know within the next week. (That would have been about two weeks ago.) At a November 13 public community meeting in Chestnut Hill, Mayor Warren said to an audience which included two aldermen, that if the city were at 1.5%, he would take steps to establish 40B immunity as soon as possible.

Under state law, the 1.5% defense must be invoked by the ZBA within 15 calendar days of the opening of a 40B hearing, to be valid for that project. So the question is whether the city will ask, and the ZBA will agree, to invoke the defense in time for Rowe Street, or whether this might be the last project to get through. (See (8) Procedure for Board Decision, in the regulations linked to above.)

The 65% of people who voted Yes on Question 6, asking for more local control over 40B projects, may be rather dismayed that the City failed to stay on top of exactly where we stood on the Land Area Minimum calculation. Rather, requests to develop a Housing Production Plan — such as Alderman Sangiolo’s docket item, were rebuffed as impractical by Planning, Dori Zaleznik (at a ZAP discussion of the HPP docket item), and Ted Hess-Mahan, because Planning was too busy, and the number of required units to get to 10% seemed out of reach. That now seems like a giant distraction from the method with may have already been achieved.

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