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Step toward 40B filed for Mugar site; town seeks more time to respond

Mugar site, Google EarthMugar: Most of it is the triangular tract west of Thorndike Field. / Google Earth

The developer of the Mugar project has taken a step toward filing a 40B application, and selectmen are seeking more time to prepare their response.

The board voted unanimously Monday, June 8, to send a letter to MassHousing seeking a 90-day extension to answer a site eligibilty application for the 17-acre Mugar site in East Arlington.

Board of Selectmen logo, Jan. 23, 2013

Selectmen's action followed a description of the legal hurdles the town faces. Jon Witten, a special counsel the town has hired to support its opposition to the 219-unit home project called Thorndike Place planned along Route 2, spelled out the twists and turns.

"Towns are not at the mercy of a rogue 40B process," he said, trying to balance what seemed to be card stacked against the town. "The town has a lot of power to push back."

The developers are moving quickly. A notice that a 40B application would be filed is dated May 19, the same day Witten and partner Barbara Huggins appeared before the town's Zoning Board of Appeals. They spent 2 1/2 hours laying out what the ZBA needed to do. That was two days before 300 people turned out at Hardy School to hear the first public discussion of the plan by Oaktree Development of Cambridge.

The request by NBM Realty LLC to make the site eligible for a 40B application, with a 196-page proposal, is dated June 8.

Seeking 90 days

Witten said the letter means the town has 30 days to respond.

A June 9 letter signed by all selectmen and copied to Arlington's State House delegation asks for 90 days.

While waiting for an answer to that, a selectmen have been invited to visit the site 1t 10 a.m. Tuesday, June 23. The board voted to name Diane Mahon as its liaison in the absence of Kevin Greeley, who will be away that day.

The site eligibility application is a necessary precursor to filing a 40B permit application with our local zoning board, Town Counsel Doug Heim told YourArlington.

"MassHousing notified us on June 8, 2015, that they had received the Site Eligibility Application (sometimes called Project Eligibility Application) and would expect the selectmen's comment on or before July 8, 2015. For the reasons set forth in the Selectmen's letter, that is not sufficient time, especially given the 196 page, detailed application submitted by the developers." Heim wrote.

"Accordingly, they asked for 90 days (until Sept. 6, 2015) to submit the selectmen's response to the very broad issue of whether or not the proposed site should be generally eligible for a 40B housing project."

Special counsel will help

Asked by Selectman Steven M. Byrne whether the town would get the extension, Witten said he thought the town might get 60 days. If MassHousing denies the request, he said, "we will help you."

Huggins & Witten specialize on defending towns against 40B projects. As his discussion indicated, the rules for the state law work better for developers. Adopted in 1969 as a measure to increase affordable housing, the law has changed over the years, particularly since 2008, to use the hope of affordable housing to secure other benefits for builders.

Arlington officials and its political representatives all are on record opposing the project. Chief reasons have to do with flooding and traffic. Despite that, Thorndike Place could still be built near Dorothy Road.

"Are we ready?" Selectman Dan Dunn asked.

Town Manager Adam Chapdelaine said Arlington is prepared for this conversation.

Heim said the special attorneys are working with then ZBA to have procedures in place.

All eyes on ZBA

That's important because while a letter to selectmen starts the process, the path to development goes through the ZBA.

"You have no regulatory power," he said of the selectmen, but "MassHousing does listen to a political delegation."

Dunn asked to hear a short version of what happens next in this process. Witten provided these steps:

-- After the town responds to the developer's application -- sooner or later, depending on what MassHousing permits -- a representative of the developer applies to ZBA for a permit, aiming to allow development to proceed.

-- The applicant asks for waivers from regulations, such as those for zoning and wetlands.

-- The ZBA has 30 days to open hearing.

-- After a hearing, the zoning board then has 15 days to declare its understanding about the town's standing with regard to affordable housing and available land area. If at least 10 percent of all units are subsidized housing or at least 1.5 percent of the total land area available for residential, commercial or industrial use is classified as eligible for such housing, then a town can be considered safe from development.

-- "Has Arlington met a safe harbor?" Witten asked. "No committee can scramble in 15 days" to determine that, so he advised the town find that out now.

-- Applicant then has 30 days to appeal the town's claim. That appeal goes to the state Department of Housing and Community Development.

-- A hearing to decide the issue must occur in 180 days.

'Uneconomic conditions'

The initial hearing before a ZBA can continue for several months. The zoning board must issue a decision within 40 days after ending the public hearing. The zoning board may approve the application as submitted, it can approve the project with conditions or changes or it can deny the application altogether.

If the board denies the application or imposes "uneconomic" conditions, the developer may seek relief with the Housing Appeals Committee. The developer must still obtain various permits required by state statutes, such as wetlands protection, state highway access permits and a local building permit.

Witten called the Housing Appeals Committee "no friend to cities and towns."

He strongly recommended in May that the ZBA should retain experts in various fields, including hydrology and engineering.

Greeley asked whether eminent domain could stop a 40B.

Witten said the approached was used by the Town of Burlington, and the state Supreme Judicial Court "ruled very unfavorably." 

Selectman Joseph Curro Jr. asked whether there is a statutory cap on using funds to pay for experts under Chapter 44, Section 53G of state law. Witten said there is none, but requests face a reasonableness test

Witten agreed with Mahon that $10,000 is available to the ZBA for consultants. The funds are separate from 53G money.

'Ace in the hole'

John Belskis, the Town Meeting member who until 2010 led a coalition aiming to change 40B, said after selectmen voted: "I say we're at 1.5. That 1.5 is the ace in the hole."

Heim asked him to share his data.

"You've got the right counsel," Belskis said, referring to Witten.

Elsie Fiore, 88, who fought East Arlington flooding for 50 years, asked when the public will be able to speak to these issues.

Greeley said the public will have ample chances.

The May 19 notice that an application would be files came from SEB LLC, a Cambridge company that includes Bob Engler, who represents Oaktree Development.

The notice says SEB represents Arlington Land Realty LLC, "for the purpose of developing a mixed-income 219 unit rental development and includes a 12-unit townhouse development titled "Thorndike Place" off Dorothy Road in East Arlington.

The later application on which the selectmen voted to seek an extension was from NBM Realty, LLC.

June 9, 2015, letter to Thomas Gleason, Executive Director, MassHousing

RE: Application of NBM Realty, LLC
for Project Eligibility approval, Mugar
Property, Arlington, MA

Dear Director Gleason:

On behalf of the Arlington Board of Selectmen, I write to request a sixty-day (60) extension for the period within which the Board of Selectmen may submit comments to MassHousing in regard to the above noted application for land known as the “Mugar property” in Arlington, Massachusetts. Our request seeks a total of ninety (90) days (the traditional “thirty day” comment period plus our requested extension period of sixty days) within which, once invited by MassHousing, to submit the Board of Selectmen’s written comments to MassHousing.

As grounds for this request, we cite to both the Board’s summer schedule and upcoming senior staff vacations, scheduled months ago. We know that MassHousing will benefit from and listen to the Town’s detailed comments on this proposed project and we respectfully suggest that we will be unable to fully and appropriately respond without a reasonable extension of time. We suggest that the 90 day requested review period is reasonable given both the timing of this application to MassHousing and the detailed nature of the same. (For example, the advance copy of the application that we have received contains 196 pages. We are not certain whether additional materials have been or will be submitted to MassHousing by the applicant or whether the applicant will correct errors already identified in the advance copy that we have received and submit the same to MassHousing prior to MassHousing inviting the Town’s comments).

For the above noted reasons, and on behalf of the Board of Selectmen, I ask for a comment deadline of ninety (90) days from receipt by the Town of MassHousing’s invitation to comment on the above noted application for Project Eligibility approval. This extension will allow the Board sufficient time to review the application, invite the applicant to make a presentation to the Board and allow the Board to invite comments from relevant Town officials. It will ensure that the Town’s response to MassHousing is thoughtful and helpful as MassHousing reviews and deliberates on the merits of this application.

Kindly confirm that this extension is acceptable.

Signed by all selectmen and copied to state Sen. Kenneth J. Donnelly, state Rep. Sean Garballey, state Rep. David M. Rogers and Adam W. Chapdelaine, Town Manager 


May 26, 2015: Speakers at Hardy send a clear message about Mugar site: NO
Cambridge Day, April 26: 3-year Cambridge master-plan process to start with Alewife

April 5, 2015: Coalition responds point by point to Mugar developer's statements

Opinion: Arlington's Belskis on 40B

March 31, 2015: Coalition seeks to preserve Mugar site from development         

Coalition to Save Mugar Wetlands: WordPress | Facebook

March 8, 2015: Belmont Uplands permit issued; opponents vow to continue


This report was published Tuesday, June 9, 2015. On Oct.  27, it was corrected to remove a link to NMB Realty, a company in Sturbridge that has no connection to the Oaktree project.

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