The 40B proposal to build 135 apartments at 70 Rowe Street returns to the Zoning Board of Appeals this Thursday at 7 p.m. to continue the public hearing that was put on hold last December after the city declared it had met the 1.5 percent 40B threshold, a decision that the state Housing Appeals Committee has since ruled that Newton has not met. (Actual ruling here.)
Here’s the latest Planning Department memo and earlier documents can be found here
To win a 40B threshold case [especially a 1.5% case] the city needs outside counsel that specializes in real estate law. It’s my understanding that the city has been represented in this matter by the City Solicitor. [If my information is inaccurate I’d appreciate someone correcting me]. No offense to the City Solicitor, but their lack of expertise and experience in a case of this type is akin to bringing a knife to a gunfight with the developer. That leads me to question Mayor Warren’s commitment to winning, and his intent. What exactly is the nature of Mayor Warren’s relationship with the principal of Dinosaur Rowe LLC, the projects developer? [Again, correct me if I’m wrong], is this not the same person the Mayor handed a sweetheart deal at Austin Street?
Mike, what is your view of whether or not the city has met the 1.5%? I can’t seem to square the circle. I don’t personally think the issue is the City Solicitor, but the actual legal argument being incredibly weak. How are golf courses not developable land without restrictions (which they don’t currently have…).
Can someone who understands the legal reasoning of our fair city please weigh in and educate me?
@Fig– I have not studied the material sufficiently to offer an opinion on the 1.5%. Even if I had, I lack the expertise to reach an educated conclusion. It’s been my experience in acquiring 40B permits that there is a lot of grey area in the law. That’s why I use a highly skilled attorney who specializes in real estate law whenever there’s a point of contention. If it was Mayor Warren’s intention to win the case, he would be foolish to rely on the City Solicitor who lacks the specific expertise to counter the developer’s experienced counsel.
@Mike: the ruling is here. worth reading and generally pretty easy to follow.
I’m going to read over the ruling, and I’ll follow up if I have any additional comments on it. But I want to point out that the City’s need for outside counsel was in preparing the case, far more than interpreting the ruling. Preparation is everything when it comes to a case like this. Experienced counsel knows how to classify and document different property uses to the City’s advantage.
For example, from Fig’s comment I can ascertain that at least one of the city’s golf courses was a point of contention. An 18 hole golf course covers a lot of acreage. So the classification of a golf course may be enough to swing the city to one side of the 1.5% threshold or the other. There’s a loophole for golf courses in the state tax code that reduces their property tax, if [in-effect] they declare themselves permanently not developable. A good real estate attorney would know how the city could best take advantage of golf course classification.
Mike: Completely agree on the attorney bit.
But I think the golf course thing was exactly the issue, namely that they counted golf courses that could one day be developed as undevelopable land. See page 4 of Greg’s link.
Take a read, and wonder how it got to this place.
Yes, I may have inadvertently answered Fig’s question about golf courses.
I also want to add, it’s not my intention to suggest the City Solicitor is anything other than competent. But the 1.5% exemption is seldom used, and the argument in support of it highly nuanced. With so much riding on the City’s claim of 40B immunity, this situation called for specialized legal help.
Is this ruling being appealed? Time to bring in hired guns!
The reaction (or lack thereof) towards this project is interesting to me in relation to the Austin Street project which has received, in contrast, far more discussion than this project.
I just re-read all the material. With 135 units, this project will turn the streets near it including Webster and Wolcott into a 24/7 Route 9. The traffic going from Rowe Street and the congestion on Commonwealth Avenue, especially with the Shaw/Star Market delivery trucks literally blocking the street for 10 minutes at a time, is already worse than most other areas in this city. And only one street away on Auburndale Avenue, children cross to get to the Burr School. Their risks are now greater and the enrollment at Burr will spike causing a decrease in the quality of the education.
More than any other project in the city currently proposed, this is the one that permanently alters a neighborhood from quiet residential to Brookline via Commonwealth Avenue.
It is one thing to live near Washington Street in West Newton, it’s another to have Otis Street BECOME Washington Street.