The fate of the ongoing battles over Chapter 40B projects in Newton could be determined Friday
That’s when City of Newton’s claim that it has met the 1.5 percent exemption threshold that would put it outside the parameters of the state’s Chapter 40B affordable-housing law is finally going before the Housing Appeals Committee
The Department of Housing and Community Development (DHCD) ruled in January that the city “has not met its burden of proof” when it submitted figures showing that more than 1.5 percent of the city’s developable land is used for affordable-housing developments.
@Greg: Process, process, process. When appeals are heard by HAC, their decisions can, in turn, be appealed through the Mass. judicial system by either party. I haven’t heard the fat lady singing yet.
After the DHCD decision, the City followed up with an appeal to HAC. At the time of the DHCD decision, Donnalynn Kahn, Newton’s City Solicitor was quoted in Jim Morrison’s Tab article linked above as saying: “This is a step in the process and we intend to pursue all avenues of appeal to demonstrate that we’ve met the 1.5,”
(I do not mean to imply that she is the fat lady!)
@Sallee: Sounds like you’re assuming Newton will lose?
This could be the make or break for Donnalyn Kahn. Will she be the next Department Head out the door?
@Greg,
The chances of Newton winning today are slim to none. The Judicial system will put us on a level playing field.
Having been to 40B hearings before as a developer, two things would tell me how hard the City is fighting. Who is representing the City, and will the Mayor attend the hearing?? This case is unlikely to be won by a City Solicitor. It requires a law firm that specializes in real estate law. And if the Mayor doesn’t attend, then he really doesn’t want to win.
@Greg: No assumptions. If the developers lose, they will very likely continue the challenge up to the Supreme Judicial Court in order to seek relief (Remember, money motivates men…and women.) If the City loses, Donnalyn has said “we intend to pursue all avenues of appeal to demonstrate that we’ve met the 1.5”. The Mayor is on record that he wants 800 more units developed in the next 5 years. He knows that residents want more local control over where and how those units would be developed. So it makes sense that the City, if it loses the DHCD appeal, will still fight to establish that 40B requirements have already been met and then allow local regulations under Special Permits to establish the design and density of those 800 units.
Since we now officially have casino gambling in MA (which golden opportunity Newton should have found a way to take advantage of, IMHO – Woodland or Braeburn gold – oops, golf – courses would have been perfect sites, solved all our revenue and unfunded benefits problems, and maybe got us early in the race for Olympics24 but, hey, what do I know), I think it is appropriate to start handicapping these decisions, and I am offering 8 to 1 against the City of Newton having a prayer of sustaining its contention that it has met the threshold. I will pay off in Bitcoins if anyone cares to wager, leave your betting slips at the Dunkin Donuts in Nonantum starting on Tues.
This is a real balancing act for the mayor. He is the Chair of the Community Development and Housing committee for the US Conference of Mayors. The entire point of the committee is to discuss how to develop and bring housing. He speaks and/or hosts discussions to the topic at various conferences across the country. For someone with higher political aspirations, it would be silly and counterproductive for him to make any real effort to win on the 40b argument.
Challenge it.. lose..call it a day. Covers all bases. Point – set – match goes to the Mayor. Excellent political skills.
Charlie, the Mayor’s political options are very limited. Any thought of challenging Governor Baker would be a joke. He may be stuck running for a 3rd term or asking Hillary to get him out of here.
Charlie hit the nail on the head. I’ve been suggesting for some time that Mayor Warren’s apparent effort to inoculate Newton from 40B was illusory and self-serving. I’m extremely disappointed in the Mayor, putting his own political interest ahead of the city’s interests. The worst part is that the good people of Newton haven’t come to realize they’re being used by a political opportunist.
I think winning state confirmation of the 1.5% would strengthen Setti’s reputation as a housing advocate:
1. His city would have been recognized by the Commonwealth for having reached (and exceeded) the state’s requirement for providing subsidized affordable housing to those in the region who qualify for it. WIN!
2. Confirmation of the 1.5% returns to the City the power to demand higher percentages of affordable units in any high-density housing project and more green space to benefit all, including those who come to live in the subsidized units. WIN!
3. Any additional subsidized housing created above the 1.5% requirement is further evidence of the Mayor and Newton’s generosity, welcoming attitude and long-standing tradition of commitment to creating subsidized affordable housing. WIN!
I am a member of the Housing Appeals Committee (HAC), but I have recused myself from participating in the deliberations of the Newton and Stoneham appeals concerning the 1.5% statutory minimum in order to avoid any appearance of a conflict of interest. So I cannot comment on the merits of any of these appeals. Nevertheless, I do want to correct an apparent misapprehension that is frequently made by people who do not understand Chapter 40B and the relevant case law.
Put simply, only the Zoning Board of Appeals of the City of Newton (ZBA) has standing to appeal a determination by the Department of Housing and Community Development (DHCD) or the HAC–not the Mayor, not the Board of Aldermen, not the Planning Board, not the City Solicitor, not the Planning Department, and not any other City agency or authority. Thus, in any such litigation pertaining to 40B, the City Solicitor is representing the ZBA, and not the Mayor or the City. If anyone is interested, a line of decisions on standing by the Supreme Judicial Court of Massachusetts can be found in this article.
@Ted- As always, your info is helpful and complete. Thank you.
Since the solicitor reports directly to the mayor, would it not be reasonable to believe that there is a direct connection between the mayor’s goals and the solicitor’s actions? Or is the solicitor legally required to carry out the ZBA’s desires?
Thanks, Charlie. I think one of my most important obligations to Newton residents is to bring the 411 whenever possible.
The code of professional conduct for attorneys prohibits multiple representation of clients (both contemporaneously and serially) when it creates a real or possible conflict of interest. The City Solicitor reports directly to the Mayor, but has a fiduciary obligation as well as an ethical duty to represent the ZBA’s interests, which would conflict with also representing the Mayor or any other city agency’s interests or desires in this type of circumstance. This is not an uncommon problem, but can easily be avoided by retaining an outside law firm to represent the ZBA. And there have been times when outside counsel has been brought in the represent a municipal agency when its legal interests conflicted with those of the Mayor or Board of Selectmen, and the city or town has had to pay for such representation.
That is correct. The City Solicitor is legally and ethically bound to represent the ZBA’s interests and take instructions from the ZBA in any litigation in which it is a party.