UPDATE AT BOTTOMOr perhaps I should say the clock is being run out.
Tonight at 7pm in the Aldermanic Chambers, the Zoning Board of Appeals resumes its public hearing on the 135-unit apartment building proposed for 70 Rowe Street. As I noted in a previous post before the hearing opened on December 4, the City and ZBA have 15 days from the opening of a hearing to invoke the 1.5% General Land Area Minimum defense to deny a 40B permit, if they believe we have 1.5% of land area (zoned residential, commercial or industrial, and excluding roads, water bodies, flood plains and conservation land) used for affordable housing.
It has now been over five weeks since the November 10 Land Use hearing on Wells Ave, when the city’s legal counsel told the aldermen we may already be at 1.5%, and would likely know within a week. And over a month since the November 13 public meeting in Chestnut Hill when 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.
It’s hard to tell if the Planning Department is working hard, or hardly working on this, because there has been no explanation for why the process is taking so long, or when it will be completed. They appear to be moving “with all deliberate speed.” I.e., slowly. Even interested aldermen don’t seem to be getting any answers.
And it’s a good thing you have Village14, because I saw nothing in either the December 10 Tab or yesterday’s about the December 4 ZBA hearing, let alone the 1.5% issue.
Many questions will be answered tonight: Will Planning have finished their calculation? If we have the 1.5%,will the administration use it, or give up its only sure means to keep this commercial property commercial, or to control the size of the project? If requested by the administration, will the ZBA vote to invoke the 1.5% defense? It could be a very interesting evening.
UPDATE: Newton’s Planning Dept. released this chart and this added document to aldermen Thursday
Julia,
Thank you for the update. I had written down to attend tonight’s meeting and it should indeed prove interesting. I’m also glad to note that I’m not the only one who is pondering if the clock is being run out on purpose.
You’re welcome, Mark M. I was wishing I could use your cartoon in yesterday’s Tab for a picture, but I figured the Tab owned the copyright, at least for awhile.
Julia, Thank you for your consideration.
Just for future record: The Tab owns first-publication rights for the week. Then it can be re-posted, with acknowledgement that it first appeared in “The Newton Tab”.
Actual copyright and ownership is always retained by me. In the past, I just appreciate an email that it will be re-posted.
Thanks again!
Julia, i don’t believe the calculus on this issue is as clear cut as you seem to think it is. Have you talked with anyone in the city?
I have also heard that calculating the 1.5% number is not quite as clear cut as it appears.
Julia,
It does not seem to be in this administrations interest ( or in the interest of the majority of the Board of Aldermen ) to place any obstruction in the path of housing projects in this city. Real Estate development is for some reason felt to be important for taxpaying citizenry, and portfolios ( of every sort ) are built on this industry. After all you have to be a millionaire to live here now, and we can afford this sort of largess.
Clear cut or not, Julia is correct in that we really need to have an update on this.
“Even interested aldermen don’t seem to be getting any answers.”
True that.
The facts are that no one in the public really has a clear idea of why there is a hold up. If you care about 70 Rowe the answer is very important. The level of distrust of City Hall is growing because of the lack of transparency here for whatever reason.
I’m willing to wait, but not if it means the City and residents lose their right to assert this defense. I think the wait is about over, there has to be an answer, not an excuse to continue checking.
@Emily
I hunted around without success to see if the 1.5% item is on any of the board agendas.
I would have though it would be in the ZAP agenda?
UPDATE: I’ve added links to documents from Newton’s Planning Dept. above.
@Simon – it is not on a ZAP agenda but see above, Greg has posted the information we literally just received.
So what happens to the recently approved Court St comprehensive permit now? The planning department stated in their memo to the ZBA that Newton was at 110 acres by land area hence falling short of the needed 118 acres to meet the 1.5%, yet in this latest document they now state that as of February 20, 2014 that Newton was actually at 131 acres hence already well over the needed level to meet the 1.5%. Additionally, even the 118 acres number was incorrect given these updated numbers since 1.5% of 7,208.08 (the denominator) is 108.1 acres! So the planning department was both grossly underestimating the numerator and overestimating the denominator. Given that the ZBA was presented with incorrect information which could have impacted their decision, and clearly had at least some concern about the size of the development, I wonder where that leaves things.
Well, the 1.5% defense has in fact been invoked. ZBA voted 5-0 in favor.
My bad – clock still running. Apparently, the ZBA vote tonight only accepts that the city is at 1.5%. To actually invoke it, they would have to deny the permit by 12/19. Tick, tick, tick…
One of the comments at the 12/18/14 meeting from the traffic study was that this project would add only a few more cars per minute to the traffic flow, so “if you’re waiting in line behind 3-4 cars, this would ‘only’ add one more car in front of you.” One of the Board members then brought up a great point that when he drove up to the Webster/Lexington Street light to simply take a right, that even though there were only 3-4 cars in front of him, it took him 2 full light cycles to simply move up four cars and take the right. He was totally correct when he said adding even just one car more into the mix would create additional issues. Now imagine at least 135 more.
Also, imagine those 135+ getting off the Mass Turnpike from work and the only way they can get to Rowe Street is by going down Elm, taking left onto Webster/Wolcott and driving to Rowe. It will be like Route 9 on those small streets 24/7 .
@Tricia: I don’t believe the ZBA needs to vote denial within 15 days – it just needs to provide written notice to the applicant that a denial or imposition of conditions would be consistent with local needs based on the grounds that it has met one of the conditions.
(8) Procedure for Board Decision.
(a) If a Board considers that, in connection with an Application, a denial of the permit or
the imposition of conditions or requirements would be consistent with local needs on the
grounds that the Statutory Minima defined at 760 CMR 56.03(3)(b) or (c) have been satisfied
or that one or more of the grounds set forth in 760 CMR 56.03(1) have been met, it must do
so according to the following procedures. Within 15 days of the opening of the local hearing
760 CMR: DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
56.03: continued
for the Comprehensive Permit, the Board shall provide written notice to the Applicant, with a
copy to the Department, that it considers that a denial of the permit or the imposition of
conditions or requirements would be consistent with local needs, the grounds that it believes
have been met, and the factual basis for that position, including any necessary supportive
documentation. If the Applicant wishes to challenge the Board’s assertion, it must do so by
providing written notice to the Department, with a copy to the Board, within 15 days of its
receipt of the Board’s notice, including any documentation to support its position. The Depart-
ment shall thereupon review the materials provided by both parties and issue a decision within
30 days of its receipt of all materials. The Board shall have the burden of proving satisfaction
of the grounds for asserting that a denial or approval with conditions would be consistent with
local needs, provided, however, that anyfailure of the Department to issue a timely decision shall
be deemed a determination in favor of the municipality. This procedure shall toll the
requirement to terminate the hearing within 180 days.
(b) For purposes of 760 CMR 56.03(8), the total number of SHI Eligible Housing units in
a municipality as of the date of a Project’s application shall be deemed to include those in
any prior Project for which a Comprehensive Permit had been issued by the Board or by the
Committee, and which was at the time of the application for the second Project subject to
legal appeal by a party other than the Board, subject however to the time limit for counting
such units set forth at 760 CMR 56.03(2)(c).
(c) If either the Board or the Applicant wishes to appeal a decision issued by the Department
pursuant to 760 CMR 56.03(8)(a), including one resulting from failure of the Department to
issue a timely decision, that party shall file an interlocutory appeal with the Committee on
an expedited basis, pursuant to 760 CMR 56.05(9)(c) and 56.06(7)(e)11., within 20 days of
its receipt of the decision, with a copy to the other party and to the Department. The Board’s
hearing of the Project shall thereupon be stayed until the conclusion of the appeal, at which
time the Board’s hearing shall proceed in accordance with 760 CMR 56.05. Any appeal to
the courts of the Committee’s ruling shall not be taken until after the Board has completed
its hearing and the Committee has rendered a decision on any subsequent appeal.
@Tricia Apparently what they did tonight was enough to invoke it. I am told by one of my colleagues who talked to assistant city solicitor Dennis Murphy after the meeting adjourned, that Murphy said the 5-0 ZBA vote to accept, or whatever the verb was, the city’s submission re 1.5%, was sufficient notice.
As I understand it, they go on to hear the applicant’s proposal and express their concerns and what they’d want changed, etc, and hear it like any other 40B, but if they end up rejecting it, or imposing conditions the applicant says are uneconomic, that’s when the path diverges from normal.
Amy beat me to it! And more comprehensively. So to speak.
I think they may still need to provide written notification.
I will follow up with the ZBA and the Law Department.
Apparently the ZBA only had to declare that Newton is at or above the 1.5% threshold this evening. It still needs to be proved that Newton has indeed met the 40B threshold. My understanding is that will only occur when a developer takes Newton to the Massachusetts Housing Appeals Committee (HAC).
If that Committee agrees that Newton is above the threshold, we will not be immune to 40B. What it does mean is that our ZBA will not be at the mercy of developers threatening to appeal to the developer friendly HAC.
If all goes to plan then new Affordable housing proposals will hopefully be about affordability, and not about filling developers back pockets.
Well, that’s good news – sorry to have passed along bad info.
It would have been helpful to have had the Law Dept. give a 3 minute explanation of the process that follows the satisfaction of one of the two criteria that are the goals of 40B relief for the developer in a municipality. Alternatively, the Planning Dept could have prepared a clearer process primer! The words on their memo circulated yesterday could have been read as a forecast of business as usual.Watching and wondering without a degree in jurisprudence was painful. Thank you for your input, AlderOne Sangiolo!
@ Sallee,
It seemed clear enough that there is no magic bullet re 40B. And that is true whether we were at the 10% figure or this 1/5%.
But we now have an extra arrow in our quiver, giving us a bit more control of our own destiny.
At least that’s how I’ve read this.
One assumes though that at some point, if/when we deny a developer what s/he wants that there will be a challenge to the 1.5%. Does anyone know whether that has happened in other districts? Either on the 10% or 1.5% basis?
Where does that leave things for Court St?
It appears based on this recent document, that the Planning Department was incorrect on the 1.5% threshold during the ZBA hearings for Court St. Is there a legal basis for overturning?
Who is accountable at the Planning Department for these mistakes?
What Sallee said. The proceedings were rather opaque.
@Amy, thanks for following up on the written notification issue. Can you let us know when it happens? It would be a shame to have made a heroic effort to meet the deadline, then blow it on a technicality.
This didn’t all happen in a Christmas miracle it’s a complicated story but in the end a well organized neighborhood group, working with a savvy lawyer, and involved Alderman were able to pull 1.5 out of the dusty basement and move it to action!!! Now we are hopefully moving into a position wherein we can do affordable and low income housing on terms that best fit the neighborhoods. Housing for all is an honorable goal and we will work to make it happen.
oops that should read: “involved Aldermen.”
Or should it read: “involved Aldermen and Alderwomen”? 🙂
Or AlderMany?
or a lot of great and innovative leaders!
I was informed written notification was provided.
The light-hearted repartee here is nice, but is this not a more serious issue of (legal or illegal?) corruption and betrayal of elected officials’ representation of and service to constituents? Where is the line between smoothing the path for one’s friends and associates to profit from harm to the city vs. actual illegal, prosecutable corruption? Is there a third explanation? I’d like to see this spelled out by local media, which I guess means blogs like this one. What possible respectable motivation would explain the delay in follow-through on the 1.5% defense? If there is one, why would a mayor not state it? When will we see one transparent statement, let alone an honest cost-benefit analysis, of the pro-development stance of the city government and staff? (As opposed to vapid pronouncements like “change is inevitable,” mischaracterizations of the comprehensive plan that are easily refuted by simply reading it online [http://www.newtonma.gov/civicax/filebank/documents/30752], vague accusations of racist-classist “NIMBY” attitudes being the only reason to favor moderation of unbridled development, or false dichotomies of a dying “sleepy suburb” vs. Newton as some imagined vital center of commerce that benefits all. Those are the only arguments in favor of these developments I’ve seen. And statements that they are inevitable, now apparently proven false.)