Check out Andy Levin’s Tab article announcing the decision today. Will this be a TKO for the 1.5% solution to the 40B requirement in Newton, or will the City continue to show a strong response in the next round of the argument? What do you think?
UPDATE: link to the Marcus Lang decision
SECOND UPDATE: Link to the Dinosaur Rowe decision.
What a shocker! [He said sarcastically]. But I’m sure the Warren Administration tried really, really, really hard to win… right?
Here is a link to the Marcus Lang decision.
Presumably the Dinosaur Rowe rational is similar. But I have not seen it yet.
I’m not an expert or even a lawyer, but if achieving the 1.5 percent depends whether or not our three private golf courses can be excluded from developable land or not and the law doesn’t say they can, how much room is there for an appeal?
Do people think that Setti Warren will appeal? I don’t see how you can build 800 units if your fighting all housing development in the city.
@Greg – if the Supreme court can consider the spirit of the law, when interpreting ” “an Exchange established by the State.”, why cant Mass legal system exclude golf courses from the denominator?
You cant pick and chose to suit your convenience.
I’m surprised the City of Newton would filed a claim to have met the 1.5% minimum if there were not strong evidence to support it. It does not seem reasonable that the exemptions were not considered before the appeal was filed and Newton’s claim of 1.8% is significantly lower than the amount allowed by the State Housing Appeals Committee (1.27%). It would be helpful to know how such a discrepancy could happen.
Correction: would “have” filed
and 1.8% is significantly “higher” rather than “lower”
Okay, so for the numerator, excluding the golf courses, how far would the city have to go? 16.7 more acres? And how much is Kesseler Woods + Riverside and why aren’t they included? Or is most of Kesseler already included in the present figure as conservation land? Still looks like it could put Newton over the top?
For sure IANAL and don’t know bo-diddly about housing law, but I can take a crack at calculating percentages. The linked decision has a lot of technical content but it is pretty simple in structure, it just steps through the inclusion or exclusion of specific parcels in the Numerator (which would be sites containing low or moderate income housing), and the Denominator (total land zoned for residential, commercial or industrial use which comprises land available for development). Various criteria and assumptions are reviewed as to whether a specific parcel does or does not meet the requirements for inclusion one or the other term of the calculation, including whether the asserted categorization is properly documented. The question of the three cited golf courses, for example, is discussed. These parcels are privately owned land which could at any time be sold by their owners for subsequent development. There are no existing deed restrictions or otherwise preventing development of these parcels, and they are not within any zone that prohibits or prevents development, so, sorry folks, they get added to the denominator. I have always personally thought that the city should have bought them for either a ball park or a casino, but no one listened. Now we could add a marijuana dispensary too, and my guess is that nasty structural deficit in the City Budget would be history.
So that’s the denominator portion of the calculation: add up the available land that is zoned for residential, commercial or industrial use. It is not a question of whether the land is open space, or unoccupied, or anything else other than what the zoning allows. The numerator says add up the area of sites of affordable housing that are currently eligible to be included in the DHCD Subsidized Housing Inventory. Again, technical criteria and the decision walks through discussion of various parcels and their eligibility for inclusion in the number. Maybe you forgot to include something in a permit or a deed, whatever, it gives all the detail.
At the end of the process, the Court says you have 90.9 acres that qualify for the numerator, and 7174.9 acres that should be included in the denominator. The hurdle is at 1.5 % and you only make it to 1.27 % or whatever. The court has decided, you can weep and moan all you want and rant about how coulda/shoulda/woulda why didn’t underassistant legal factotum Joe Guantanomo do x or y differently, if you are at all realistic you will look at what can be changed or improved to perhaps lead to a different outcome the next time. And next time can be whenever the City or ZBA wants to challenge a permit application, if I understand it correctly.
Certainly you now have a laundry list of items that failed qualification or raised questions, and you could attempt to correct whatever problems were cited. You could work toward reducing the total area included in the Denominator, but if you rememer from Math class, the net improvement will be the reciprocal of the amount of land you remove from that component. With the numerator unchanged, you would have to reduce developable land from 7174.9 acres to something like 6000 acres to qualify if your numerator remains at around 90. Any ideas out there? Those 3 private golf courses? That will get you exactly 539.8 acres, so you still have a ways to go.
How about increasing the land area devoted to affordable housing? Well, if you could get another 16.7 acres included in that number, you’d be home free. Which one seems like a more practical goal? So even if you dislike all the nasty high density affordable multi-unit urban skyscraper housing, if you can swallow a little of it and get us to the 1.5 % threshold, maybe your enlightened self-interest would kick in and the cursed 40B monster would go back in his cave.
@Adam, sorry, your figure of 16.7 is exactly correct. Disregard everything I said. The decision does, however, take up specific parcels and how much of each one is eligible. I believe Kessler Woods was in the list.
Here’s a link to the Dinosaur Rowe decision.
Riverside was not included because this appeal was filed before the building permit was issued. (page 7) That adds 3.9 acres back into the numerator, about .05%. That bumps it up to 1.32%.
The disputed golf courses can be fixed through re-zoning or easements. The question is whether the course owners and the city can strike a deal that makes sense for both sides. With Riverside and all of the Golf Course land, Newton gets to 1.43%. (I’m skeptical that the City will be able to get the necessary limitations on all of the golf course land.)
As H.L.D. points out, the City is still short in meeting the 1.5% test.
@Eric: Mayor Warren wants 800 more housing units in Newton. But he also knows that 800 units built under Special Permitting by the Aldermen would give a shape to those units a lot more palatable to Newton voters because they would have much more local control over what gets developed. The current suggestion is to increase the “affordable” or subsidized units to 20% from 15% in Special Permit developments, so a higher percentage of newly built low to moderate income units would remove that difference between the 40B Comprehensive Permit’s nearly laissez-faire development and locally controlled Special Permit development. I don’t know whether the SHI would include all the rentals in a 20% subsidized Special Permit development with eligible AMI (as a 40B would), but if Newton were to have met its 1.5% 40B land coverage necessary to satisfy the State 40B Regulation, it wouldn’t matter. Win-win. There would still be lots of units being built for the needy, the elderly, millennials, cyclists, the disabled, pedestrians, etc. But with local guidance. So the Mayor would have an adoring public if he were to pursue 40B satisfaction successfully, combined with a push to develop those 800 units within the local permitting program.
Interesting that 3 of the 6.9 acres submitted for the highly-touted “transit-oriented” Arbor Point at Woodland development was kicked out because “the transit facilities are not ancillary to the housing.”
ancillary – providing necessary support to the primary activities or operation of an organization, institution, industry, or system.
@Tricia – My reading of that section was that the developer only controlled 3.9 acres of the site under its ground lease. So only those 3.9 acres should be included. The City asked for all 6.9 acres of land owned by the MBTA at that location to be included in the inventory. I think its hard to argue that the train tracks and platforms are ancillary to the housing, even to transit-oriented housing.
well, this was expected and rather obvious. Of course it was rejected. To be honest, it didn’t make much sense in my opinion.
The Ciy’s continued efforts to restrict the development of affordable housing should ultimately exclude them from receiving CDBG and HOME Funds. These funds would be very much appreciated in more deserving communities.