Apologies for not doing something about this earlier but the Land Use Committee met on Tuesday to discuss the Washington Place Project and the rezoning of the Orr Block.
Land Use did not vote on a request by developer Robert Korff to withdraw his proposal, which would have been the next step towards his recent plans to move forward with the project as a 40B (a move that would not need the City Council’s approval but might result in a building that is taller and denser that Korff had proposed and the Newton Village Alliance was battling).
Instead there will be a discussion of the project among the full council (operating as a Committee of the Whole ) on Monday, March 20 at 7 p.m.
Many supporters of the project (and perhaps even some opponents) are hoping the March 20 discussion will convince Korff to proceed with the project as presently proposed. BUT since the Committee of the Whole is NOT empowered to vote on the 20th — and an added complexity that I will get to in a minute — there will be no iron clad way for Korff to determine if the project has the needed 18 council votes to approve a zoning change and move it forward without taking the 40B path.
Complicating matters, someone correct me if I’m wrong but since Korff’s special permit application remains before Land Use there remains a legal restriction on councilors being able publicly say if they favor this project because, as Councilor Hess-Mahan reminded us on a recent thread:
The special permit review process is a quasi-judicial function, and therefore ethically councilors may not declare whether they support a project or not until after the public hearing is closed. Regrettably, the public hearing has been held open for many months, so there has been no opportunity to publicly take a position on this project. That being said, councilors can take a position on rezoning because it is a legislative function. This is, however, complicated by the fact that the rezoning does not take effect unless and until the special permit has been approved and exercised. So no one should cast aspersions on councilors who have not said in public whether they support the project.
Like I said, it’s complicated.
‘Withdrawal of the withdrawal’ – chances like this I can never remember ever happening in Newton. A second bite at the apple does not happen often, let’s get it done before we have the 40B comprehensive permit pre-empting our local control!
I fear the objectors are going to vote “no” simply to take a “stand” against “the man”. Politicians are unlike business people who have to compromise to survive. Its still going to be an “ideological” no
I am confused…why does Korff think his 40B would get any different response from the ZBA than several earlier 40B’s in which the 1-1/2% safe haven has been invoked. Wouldn’t the City be sued by those earlier developers if the ZBA didn’t continue to invoke the safe haven? This 40B will bounce up to HDCP, back to ZBA, up to HAC, back to ZBA, and await a move by the developer to the “real” courts that could legally decide the merits of the City’s calculations of the 1- 1/2% of developable land. That could take years and a lot of money. A developer would need a very deep pocket and a lot of time to get a “final” judicial ruling. But, if Korff is buying up all of Newton (Riverside and what else?) maybe he can wait it out. He’d be better off negotiating with the Council and lowering his sights one or two stories!
@Sallee: The city’s 1.5 percent claim is a tenuous one that other communities have also struggled to make. Every indication is that it won’t hold up in Newton either.
Sallee:
“That could take years and a lot of money. A developer would need a very deep pocket and a lot of time to get a “final” judicial ruling”
Korff checks all those boxes and more. Just look their portfolio
http://www.markdevelopmentllc.com/portfolio. Infact the lawyers costs are just overhead for them as they likely have in-house lawyers anyway
As long as the market is stable, waiting for years for a ruling is still profitable for them as land values continue to increase. Other developers fighting 40B simply cannot waste time/money to fight.
If Korff wins, his ruling will OPEN the floodgates like CRAZY in Newton for 40B developers and the ruling will give them a easy go ahead.
@Greg: I’ll believe that if, and only if, a judicial (not quasi-judicial) court of the Commonwealth rules that way!
In my opinion, the City should have allowed a taller structure, which would have avoided all this risk and posturing back and forth. But now Land Use has been handed a second chance, so let’s hope they make the best of it.
Sallee:
What the 1.5% stance ends is a legal argument. There are shades of grey involved on both sides, but I really do think it is a stretch. Perhaps with a sympathetic judge.
What it really does is set up a dynamic that makes it harder for a developer to do 40B in Newton. Because Newton has the 1.5% “argument”. Therefore, a developer knows he has a battle on his/her hands until the 1.5% stance is resolved.
What folks on this thread are saying though is that once this developer challenges it in court is that if he wins, everyone will know that the emperor has no clothes, that the argument was complete bull, and it will then be more likely that more 40Bs occur in Newton. Or he could lose, then 40Bs are basically done for a while. Always possible. It’s a gamble. Folks who do development on this blog are trying to give you their thoughts on the likelihood of the gamble being successful.
You can certainly say that the developer should put his money where his mouth is. If you truly believe your argument is correct based on review of the statute and the consultation with the various experts that NVA brought to their seminar, I could see why you’d want that.
Fig: It’s all a gamble. 1-1/2% and 10% are moving targets. If Korff were to appeal to the MA Supreme Judicial Court and get a ruling that 1-1/2% had not been reached, his addition of so many acres on the Orr Block would position the City for another run at the 1-1/2% again. Ad nauseum. Definitely a contest of wills. This is all a negotiation. Korff is certainly the Goliath in town, backed with Walgreens as a client and seemingly enough money to outlast all challenges. (Thanks for the link to Mark Development by Bugek above…we should all check it out). But remember David defeated Goliath. I would hope that Mark Dev. would make the pot so sweet that all 24 Councilors would have to accept its offer. Korff could drop the MU4 request, drop down a story, increase the number of units in the official SHI so the whole development counts toward the 10%, keep the subsidized units in the moderate income range, non-officially counted in the SHI, reduce the number of parking spaces somewhat, fix the MBTA Newtonville Commuter Stop and offer mitigation for Walnut Street enhancement and STILL make money. Remember…no one seems to check on the profits estimated by these developers vs. what they actually make on their investments. 40B allows only 10% profit. Let’s hold them to that and recoup for the City all they make above that (in rental or condo sales) for the next 20 years.
Sallee,
Can we add a pony to your list of conditions? I’d like a pony
@Sean: Me too! You don’t get unless you ask! Remember, MD doesn’t hold all the cards!!!!! This is all about negotiations and they’re pros at that; we can be, too. They even brag about that on their website.
No, Mark Development doesn’t hold all the cards but I’m starting to wish that Robert Korff did. I was skeptical of his plans 2 years ago but since then he’s met with anyone who asked and changed his development and his mitigation offers several times to be more in line with what Newton said it wanted. Each time the bar kept moving. Who wouldn’t get frustrated after 2 years? He will never meet the ridiculous terms continuing to be set by those who don’t want the development anyway.
I would like the additional 3 bedroom apts and extra affordable units so if he gets approval for his project or fights for 40b, I will support him. I read he now owns the Riverside Development and will pursue a 40b there as well. (Correct me if what I read was wrong.)
If the 1.5% claim in Newton is defeated and Korf goes with Washington Place and Riverside as 40bs, Newton will have its 10% and could stay that way a while. If Austin Street gets out from under it’s frivolous suits and gets built we will have even more.
Of course with time and all the fighting the price for the market rentals only goes up more – as does the AMI. And I hear interest rates are about to go up to add more cost to these projects.
Let’s start building and see if all the terrible predictions come true or if we go on with our lives with a little bit more density and diversity in our community. My bet is on the latter.
If I ever have to negotiate anything touch, I want Sallee backing me up.
That’s tough, not “touch”
100 parking spaces for 160 apartments plus commercial and retail is ridiculous. can we start a betting pool for how soon the residents will demand on street winter parking? I saw that there will be money set aside for public transit subsidies–that’s a joke. People that live in $600k condos own cars, especially in Newton.
Newsflash: if he could make more money with 40B he wouldn’t even be talking to the City.