There’s been a lot of discussion – as well as a lot of speculation — about what might happen to Northland in the event that “no” prevails on March 3.
Just yesterday at an event sponsored by Right Size Newton, zoning attorney Dennis Murphy, who was introduced as a 40B specialist, said that the project must legally proceed as a single parcel of land, even though legally the 22.7 acre project comprises three separate parcels (go to the 2:23 mark of this video to see Murphy’s explanation.)
But it appears that the city’s law department disagrees with Attorney Murphy.
Check out page 5 of this memo from the Planning Department:
In the event the City Council’s rezoning of the Northland project is repealed by a referendum, the Northland developer may consider one or more 40B projects at the same site. The Northland site is currently made up of three separate parcels. The developer could ultimately choose to pursue multiple 40B projects, as each parcel could contain a separate 40B project. The developer could also subdivide into additional parcels by right as long as each parcel meets the frontage and lot area requirements in the City’s zoning ordinance.
Murphy also said there would be a “one year cooling off period” before Northland could propose a 40B.
Also, not true according to the same memo:
There would be no cooling off or waiting period before the developer could pursue a 40B project. There is also nothing that prevents the developer from pursuing multiple individual 40B projects on separate parcels at the same time.
And that same memo continues:
While it is impossible to predict the details of any potential 40B projects, one or more initial 40B projects at the Northland site could each contain 646 units located on separate portions of the 22-acre site.
So – all speculation aside – the answer is Northland’s project could swell from 800 units as currently approved to 1,938 units under 40B.
But would Northland go that route? Only Northland knows that for certain. Here’s what Northland CEO Larry Gottediener in his open letter in the TAB from last week:
“If NO wins, the City Council’s 17-7 approval will be overturned and the project as envisioned will not proceed. Having fully exhausted the City Council’s Land Use permitting process, Northland will then have the option to apply directly to the State for alternative permitting under an affordable housing statute known as Chapter 40B. IN that event, the most likely outcome will be three non-integrated 40B developments that total 1,500+ new apartments…The State’s 40B approval process overrides the City Council’s Land Use process and, as such, will NOT require any of the appealing elements of the Northland project that were negotiated by the City Council.”
So what the final answer to the question: How many housing units could Northland build under 40B?
1,938 but only without the millions of dollars in traffic mitigation, open space, parks, school renovation dollars and other benefits.
Oh and one more point for those who cite school crowding as a concern:
Under the current, approved project, five percent of the units will be three bedrooms. Under 40B, ten percent of the project must be three bed rooms.
So we’d get 40 three bedrooms under the current plan and the possibility of nearly 200 three bedrooms under a fully built out three parcel 40B.
Good scare tactic by you and Northland!
The truth comes out. Northlands’s not looking out for the best interests of the city and they’ll try to screw us if they don’t get what they want.
But even under 40B Northland still has to follow health and safety rules. More importantly, given all of the current 40B proposals in Newton, we will meet our 40B limit prior to Northland getting their proposals approved and there will never be that number of units built there! No way!
You left out the part where Attny Murphy said (and I’m paraphrasing):
Since all (3) parcels is shared by the same owner, it is effectively consider a single (1) parcel – debunking the 1,938 total units to be built under 40b.
Folks please watch the whole video.
Actually Matt, please reread my post. Murphy expressed that view. The city’s law department disagrees.
For those not on Facebook…
https://www.youtube.com/playlist?list=PLv-Wr4x40v4PEOLJGY-6z0V8NnOHPOI3c
@Arthur Jackson – I don’t see anyone can say thaty Northland is”screwing” anyone here. Northland is a private property owner in our city. If they want to build on their 22 acre site there are a few different perfectly reasonable and legal options.
1. Build by right under the current zoning
2. Build under the state’s 40B regulations
3. Petition the city for a change of zoning and build under that new zoning.
Northland spent the last couple of years working through the very lengthy process of #3 and the City Council approved their proposal. If the referendum’s No side wins next week then Northland is back to where they started with 3 perfectly reasonable and legal options.
It mystifies me why anyone would think trying all over again for #3 would be their most likely course of action. If they build 40B as they say they intend to or they build under the current zoning they are not screwing anyone.
Once again with any new proposal there will be pluses and minuses for the neighbors and the city – maybe more affordable housing, maybe less, maybe more traffic, maybe more impact on the school, almost certainly a loss of many or all of the negotiated concessions of the current plan.
i.e. a few years down the drain and we’re all back to square one with a totally new deck of cards – to mix a few gaming metaphors.
“You left out the part where Attny Murphy said (and I’m paraphrasing):
“Since all (3) parcels [are] shared by the same owner, it is effectively consider[ed] a single (1) parcel – debunking the 1,938 total units to be built under 40b.”
This is demonstrably false. It took no time at all for me to go to the Assessor’s database to confirm that these three parcels are owned by three, separate corporate entities. It took me another couple of minutes researching Land Court a Registry records to determine that those three parecels have, in fact, never been in common ownership. All three parcels were bought by different entities, from different owners, at different times (as much as 35 years apart).
Northland, the developer, does not own any of these properties. Separate corporations were established to own each property, which are all duly incorporated Massachusetts or Delaware corporations. There is nothing inherently improper about that and courts will recognize them as separate entities unless they disregard corporate formalities. Indeed, one reason to set up a separate corporation for each property is to avoid having the merger doctrine apply. Another reason is that each corporation may have a different set of investors or shareholders. Yet another reason is to permit individual properties to be sold to different buyers.
The merger doctrine generally applies when abutting properties are under common ownership and the owner transfers one lot in order for it to be “grandfathered” in before the zoning changes which will make the lot unbuildable. One such practice is called “checkerboarding,” which is where a single owner transfers portions of a large property to other entities it controls in order to avoid the merger doctrine. That is not the case here. Indeed, these properties have never been in common ownership. Moreover, I am not aware of a single case that is on all fours with Dennis Murphy’s legal argument.
Newton voters deserve to have complete, accurate information before they cast their votes on March 3rd. I believe that Dennis Murphy and RSN are doing a profound disservice to Newton voters by spreading inaccurate information.
@Arthur Jackson – why would anyone think Northland’s looking out for the best interests of the city? It’s not their job.
However, Northland was willing to work with the city and make compromises that the city and neighborhood wanted. They spent a lot of time and money that they didn’t need to.
If the “No” votes win, why would Northland want to go through that again?! Why waste 3 more years and pour more money into a process that has a good chance of leading to the same result – being voted down at the end.
Attny Murphy stated that under 40b you can only set aside local zoning to the degree that it makes the project financially feasible.
Here is a guide to 40bs
https://www.chapa.org/sites/default/files/40%20B%20fact%20sheet_0.pdf
Some highlights:
*Developers must restrict their profit to 10% per yr for rental developments
*Regulations allow communities to reject a 40b application if a developer submitted an application for the same site for a non 40b development within the previous 12 months
Interesting. On the “cooling off period” see 760 CMR 56.03(7):
“(7) Related Applications. For the purposes of 760 CMR 56.03(7), a related application shall mean that less than 12 months has elapsed between the date of an application for a Comprehensive Permit and any of the following:
(a) the date of filing of a prior application for a variance, special permit, subdivision, or
other approval related to construction on the same land, if that application was for a prior project that was principally non-residential in use, or if the prior project was principally residential in use, if it did not include at least 10% SHI Eligible Housing units;
(b) any date during which such an application was pending before a local permit granting authority;
(c) the date of final disposition of such an application (including all appeals); or
(d) the date of withdrawal of such an application.
An application shall not be considered a prior application if it concerns insubstantial
construction or modification of the preexisting use of the land.
I probably should’ve put that last post in context: 760 CMR 56.03 (1) describes when a decision of a ZBA denying a project will be upheld.
A decision by a Board to deny a Comprehensive Permit, or (if the Statutory Minima defined
at 760 CMR 56.03(3)(b) or (c) have been satisfied) grant a Comprehensive Permit with
conditions, shall be upheld if one or more of the following grounds has been met as of the date
of the Project’s application:
(a) the municipality has achieved one or more of the Statutory Minima, in accordance with
760 CMR 56.03(3);
(b) the Department has certified the municipality’s compliance with the goals of its
approved Housing Production Plan, in accordance with 760 CMR 56.03(4);
(c) the municipality has made recent progress toward the Statutory Minima, in accordance
with 760 CMR 56.03(5);
(d) the project is a large project, as set forth in 760 CMR 56.03(6); or
(e) a related application has previously been received, as set forth in 760 CMR 56.03(7)
@Greg, sounds like it would be helpful for Jonah Temple and/or Alissa Guiliani to definitively weigh in on the validity of Atty Dennis Murphy’s claim that Northand can only do (1) 40b given that they own all (3) properties.
https://www.youtube.com/watch?v=ABCq_harxkk&list=PLv-Wr4x40v4PEOLJGY-6z0V8NnOHPOI3c&index=1
Given importance of this point is this something you and/or @AmySangiolo can get us all clarity on?
@Matt: You’re confusing me man. Exactly what “clarity” do you want? I’ve linked to the city’s legal ruling above. They’ve already weighed in.
And then Ted Hess-Mahan (an attorney we’ve all heard of) offered his very credible analysis and unlike Right Size’s attorney, Ted showed his work.
Clarity delivered with a bow.
With respect to the “cooling off” period, the Law Department is also correct that the petitioner can file for a Comprehensive Permit under Chapter 40B without having to wait. As Amy pointed out, a “related application” is defined to include the date of filing of an application for a special permit within the last 12 months. The Northland special permit application was filed on August 10, 2018–more than 18 months ago. More to the point, however, the special permit application was for a project that was mixed use commercial and residential, and included more than 10% SHI eligible units. So, yeah.
How is this argument consistent with the message expressed previously (I’ll paraphrase) that ‘no’ voters are racist, classist, non-progressives?
Would 485 affordable units (25% of of 1,938) not be a desirable alternative to 140?
If affordable housing IS the goal, how is ‘yes’ a responsible vote?
@Greg, if I were having heart problems, my PCP would end me to a Cardiologist. Attorney Murphy is a specialist.
As for Ted’s claims, Northand’s own site lists (2) of the (3) parcels as theirs and even the Assessors Database the first word in all (3) owners is Northland. We can get into the legal semantics of the full name, it should not be hard to follow the money back to Northland Investment Corporation.
https://northland.com/portfolio/
@Greg: You missed some other points in the memo as well. “Based on the City’s current 10% calculation, in order to meet the 10% safe harbor, the City
needs to have 3,235 SHI eligible housing units. In order to achieve this, a minimum of 461 additional SHI eligible units need to be developed in the City. It is important to keep in mind, however, that the results of the 2020 census are expected to show an increase the City’s total number of housing units in the last ten years, which in turn is likely to have an impact on the City’s 10% calculation. Therefore, in the event the City reaches the 10% threshold before the new federal census data is available in the second half of 2021, it is very likely that the City will fall back below the 10% threshold after the data from the 2020 census is available.
• There are numerous development projects in the pipeline that will increase the City’s number of affordable housing units and its land area dedicated to affordable housing.2
o The Riverside project will be before the City Council for a special permit in January 2020. If a special permit is granted based on the current configuration of the Riverside project (617 proposed residential units), subject to further evaluation to determine the portion of the 14.5 acre site that is “directly associated” with the affordable units, 15% of that area will be counted towards the 1.5% calculation and 93 affordable units will be
counted towards the 10% calculation.
o There are also two 40B projects that are expected to be filed with the ZBA in the coming weeks. If approved, the project known as “Dunstan East” on Washington Street will add 2.98 acres to the 1.5% calculation and 243 affordable units to the 10% calculation. The project known as “Residences on the Charles” at 15 Riverdale Avenue, if approved, will add 3.40 acres to the 1.5% calculation and 204 affordable units to the 10% calculation.”
I believe the ZBA is taking up Dunstan East tomorrow night.
@Ted: Huh?
Three legally distinct entities and three legally distinct parcels means, I assume, three separate 40B applications.
How close is Newton to safe harbor? If the Newton ZBA / state HAC receive 3 applications for several hundred units each, would all three be ‘needed’ to reach safe harbor, or would safe harbor be met along way as each gets approved in sequence, allowing one or two of the proposals to be denied?
Separately, is there any precedent of three 40Bs of this size being proposed/approved on adjacent parcels? The ZBA cannot outright deny (since we are not in safe harbor) but I believe they can include stipulations in their approval based on planning / public safety / design concerns. Of course those stipulations cannot be uneconomic, or else the HAC will not be happy. With land currently laid out in three parcels (I believe it can be subdivided further), 646 is the maximum per parcel, but is there is a minimum that the ZBA can hold Northland to, while still following 40B guidelines (and assuming that no other 40Bs pop up in the meantime, to keep the math simple)? Some “Yes” people make it sound like the minimum per parcel is the same as the maximum per parcel, i.e. ‘whatever Northland wants’, i.e. 646. But I don’t think this is actually the case. I wouldn’t predict a much lower number, but, surely, a somewhat lower number, as the minimum. Can anyone who understands this all better please weigh in on this?
“As for Ted’s claims, Northand’s own site lists (2) of the (3) parcels as theirs and even the Assessors Database the first word in all (3) owners is Northland. We can get into the legal semantics of the full name, it should not be hard to follow the money back to Northland Investment Corporation.”
Matt, that’s not how any of this works.
I know how it works.
It ends up in the court, the the lawyers argue their cases, and the Judge makes a decision!
So @Simon: The No campaign is willing to roll the dice on the hope that a Right Size lawyer that no one is heard of is correct vs. the view of the city’s law department (with corroborating evidence from attorney and former Land Use Committee Chair Ted Hess-Mahan that your attorney may not have known about)?
I think the residents who are supporting “no” deserve more honesty about the risks from Right Size.
@Donald good question. The percentage of affordable housing units at 40B projects usually exceeds the 25% minimum.
The MASS Housing Website states that “approximately 70,000 total units have been produced under Chapter 40B, of which over 35,000 units are restricted to households making less than 80% of the area median income (AMI).”
https://www.masshousing.com/portal/server.pt/community/planning___programs/207/masshousing%27s_planning___programs_department
@Jeremy as @Amy notes Newton is close to the 10% Safe Harbor. The memo @Greg shared states the City needs 461 additional affordable units. The Dunstan East (243 units) and Residences on the Chars (203) 40B projects before the Newton Zoning Board almost equal this gap.
I think – barring legal subdivision of the lots – that massing of the 1,500+ units has to be considered. When we look at the narrow lot with the piano factory along Grove Street, the only way I can figure to get in 500+ units is to go with 2-3 mid rise buildings of 10-12 stories.
That’s taller buildings, with less setback, than what’s proposed now. Throw in a likely sea of asphalt parking lot, and you get…?
And even if it ends up in court, I’d guess it’s faster than negotiating with the town for a special permit/custom zoning again.
(As always, this is a personal statement)
I get whiplash by the RSN sudden claims to want more and more affordable housing. Since they burst on the scene they’ve been asking to make this smaller (with no indication as to what “smaller” means) and asked for less traffic on Needham Street. Now I’m hearing “No” supporters say that yes, let’s build the increased affordable housing even if it means a bigger project (more massing as opposed to height) and more cars on Needham Street. I’m not sure how a larger 40b project achieves their stated goals.
What the city and developer aimed for over the years of planning and negotiations was a project that tried to balance different pieces, including affordability, traffic mitigation, uses, commercial taxes, rentability, etc. The 40b route provides us with none of that. It’s really that simple.
I had to go back to 1995 to 1999, when Stop and Shop had purchased a piece of land that had been an industrial site that manufactured cement products. Stop and shop wanted to build a needed market on the south side of town, and as a mitigation, offered $20 million dollars to repair and restore Needham Street. The neighborhood, organized by
Citizens Organized for Responsible Development, rejected any and all changes. Traffic traffic traffic!! Court cases, lawyer fees, misinformation and distrust of the political process. Stop and shop sold the land to Avalon, who immediately built what they build, which created more traffic without any mitigation, and aggravated the student population at Countryside. With no mitigation.
I have seen these movie before, and I know how it ends. CORD disbanded as their reason to exist disappeared, without any impact on responsible development. Is the disagreement over the Northland proposal any different? No. The neighborhood organizations were wrong then, and they are wrong now.
Hi @Ted, the code @Amy shares in her first 760 CMR 56.03(7) post says…
“a related application shall mean that less than 12 months has elapsed between the date of an application for a Comprehensive Permit and any of the following:”
Since the work ‘any’ is used, does this mean the 12 months period has to meet all of the conditions that follow?
Also, sub section (c) in the conditions that follow states…
“(c) the date of final disposition of such an application (including all appeals)”
Would the upcoming March 3rd Referendum considered a ‘final disposition’ and/or ‘appeal’ of the Northland Special permit?
Thanks for helping a layperson better understand 40B regulations.
Fair question, Rick. Here is the relevant language:
“(7) Related Applications. For the purposes of 760 CMR 56.03(7), a related application shall mean that less than 12 months has elapsed between the date of an application for a Comprehensive Permit and any of the following:
“(a) the date of filing of a prior application for a variance, special permit, subdivision, or other approval related to construction on the same land, if that application was for a prior project that was principally non-residential in use, or if the prior project was principally residential in use, if it did not include at least 10% SHI Eligible Housing units; ….”
In my opinion, the Northland project is not a “related application” within the meaning of 760 CMR 56.03(7). The special permit approved by the City Council was for a mixed use residential/office/commercial development. Close to 1M square feet of the project is residential, while 193K s.f. is office space, and another 237K s.f. is commercial space. The first clause, which only applies to prior projects that were “principally non-residential in use, does not apply because the project is mostly residential in use. The second clause, which only applies to residential projects which do not include at least 10% SHI eligible (i.e., affordable), also does not apply since the residential component of the Northland project includes 15%SHI eligible units.
All of the other clause in 760 CMR 56.03(7) refer to “such applications,” i.e., related applications. Accordingly, they do not provide a safe harbor or “cooling off” period.
Just my opinion. I don’t claim to be a 40B “specialist.” But for seven years I was a member of the Massachusetts Housing Appeals Committee, which handles appeals from the grant of Comprehensive Permits, and that is how I would have come down on this issue if it had been presented to me.
Thank you @Ted. Much appreciated.
If I’m tracking it comes dow to whether Northland’s current project will be considered ‘principally residential in use’.
Not that I claim any expert bona fides here, but wouldn’t the timing issue come down to sequencing? If my interpretation of 40B is correct, wouldn’t the following hold?
* The ZBA needs to invoke a safe harbor pretty much right out of the gate, as opposed to getting 5 months through the permitting process.
* The 10% safe harbor calculation is performed at the time the project is submitted, but the affordable housing inventory is updated when a project is permitted.
I’m interpreting that to basically mean we’d get a race between Northland submitting its 40B proposal(s) and the city approving the pipeline projects.
@Ted Hess Mayan – a Question …with a 40b it seems for certain areas there is quite a bit of interpretation. In the past Newton fought on whether we had achieved 40b or not and I believe it came down to whether to count the golf course as developable land or not. 40bs are only supposed to exceed local zoning to the degree that makes them financially feasible. The issue of whether it is consider 3 separate parcels or 1 due to the common ownership. As the poster mentions above if the pipeline projects are approved and it is thought that we achieved 40b. Since these are areas where there could be some point of contention, if Northland were to try to proceed with 3 40bs who decides on the response? Is it the Mayor or the City Council or some combination? In Mayor Warren’s era there was an attempt to claim that we achieved the threshold. How do you feel Mayor Fuller would proceed?
@Newton Highlands Mom:
The Planning Department and the Law Department put together the land area calculations for the Zoning Board of Appeals (ZBA) whenever the ZBA requests information concerning whether Newton has met the statutory minimums to invoke the safe harbor provisions of 40B. The ZBA then votes on whether to invoke the safe harbor. The Mayor and the City Council do not play any role in deciding whether to assert the safe harbor provisions.
Once a 40B application is filed, the ZBA has 15 days from the opening of the hearing to provide written notice to the applicant and the Department of Housing and Community Development (DHCD) that the municipality has met the statutory minimum for a “safe harbor” under Chapter 40B, and provide the factual basis for that position, including any necessary supporting documentation. The applicant then has 15 days from the receipt of this notice and backup documentation to provide written notice the ZBA and DHCD that it is challenging the ZBA’s position, along with any supporting documentation. DHCD has 30 days upon receipt of the applicant’s notice that it is challenging the safe harbor to review the submissions and issue a written decision at to whether the ZBA has met its burden to prove that it has met the statutory minimum. Appeals of DHCD’s decision go to the Massachusetts Housing Appeals Committee (MHAC). The ZBA hearing is suspended pending a decision from the MHAC.
When I was a member of MHAC, an increasing number of appeals concerning DHCD’s determination whether municipalities had met the 1.5% statutory minimum came before the committee, including Newton. As a City Councilor, I recused myself from the case involving Newton and other similar cases that were pending at the same time because of a conflict of interest. After Newton’s appeal was decided, however, I sat in on the evidentiary hearing involving another community’s 1.5% calculation. At the time, the guidelines were fairly broad and did not give explicit instructions as to what sources of information and how the land area should be calculated. The land area directly associated with units that are eligible to be including in the Subsidized Housing Inventory is the numerator in this equation and the total land area of the muncipality (with certain exceptions) is the denominator. Experts were using aerial photography, GIS dabatases, even satellite photos to determine, for example, the area of tiny brooks that appear as little blue lines on a map because water is excluded from the calculation of the land area of the municipality. Heavily vegetated open space is also not included, so the parties were submitting photos of trees and shrubs to make their arguments. In the end, the town came up short by an area that was on the order of hundreds of square feet. As a result, in 2018, DHCD came up with new guidelines for calculating the 1.5% statutory minimum that were highly detailed and comprehensive, and described the types of evidence that could be presented at the MHAC hearing. The guidelines became final in 2019, although there continue to be minor tweaks proposed. With the new guidelines, the process for calculating the 1.5% statutory minimum is much more clear and consistent than before, although needless to say it requires a lot of effort for the municipality to satisfy its burden of proof.
I hope that answers your questions.
@Chuck: Try this: 1 ) Folks would prefer a smaller development with less traffic impact on Needham Street or 2) more affordability in the housing portion, phased-in development of the project, and shuttle service directly into Boston and Cambridge (which I think was originally proposed). If 1 and 2 are not available, then option 3 – potential 40B. It may be a lot denser – but the goal of getting more affordable housing would at least be achieved. As for the loss of the “amenities” – maybe the “amenities” which the Council negotiated were not as important to folks as the Council thought.