Monthly Archives: February 2012

To catch people up on some of the things I have been doing about the proposed 40B:

• I had the Board of Selectmen set up the 40B informational meeting for Tuesday, February 28.
• I spoke with Superintendent Robert Maguire, and he told me that he  has asked his expert on evaluating school enrollment changes resulting from developments, Dr. Kennedy, to opine to him on the expected additional school children that may result from both the proposed West Street and Medfield State Hospital developments.  Dr. Kennedy has already done a couple of reports on the proposed MSH development.
• I spoke with Joanne Muti, Representative Daniel Winslow‘s legislative aide, and a former Walpole selectman (because of quotes I had seen attributed to her in a recent email), and she told me that Walpole refused to permit The Preserve.  The developer was initially seeking to permit over 400 units, and their ZBA denied a comprehensive permit.  The state Housing Appeals Committee (HAC) on appeal reversed the town’s decision and granted the permit.  At some point, Walpole ultimately negotiated the number of units down such that The Preserve is over 300 units.
• I spoke with Walpole Town Administrator, Michael Boynton, who told me that he started to work in Walpole just after the HAC had overturned the ZBA’s denial, and that his dealings with Gatehouse were all positive.  He said that he found the people from Gatehouse with whom he dealt to be good to work with.  He said there were sewer issues because of the location, and that HAC basically just told the town that was up to them to fix.  He also said that they did get more school children.  Finally he suggested having our Chief and Superintendent call their counterparts in Walpole to get the details.
• I will ask that Chief Meaney get information from Chief Rick Stillman of Walpole, and that Superintendent Maguire get information from his counterpart in Walpole, on the effects of The Preserve on town systems in Walpole.
• I communicated with Representative Denise Garlick yesterday and she confirmed for me that it was not correct that she “supported” the proposed 40B project on West Street – one person had incorrectly stated so in an email.
• It was confirmed at the Board of Selectmen meeting last night that Medfield does not meet any of the three tests under which towns can qualify out of 40B’s, namely, the 10% affordable housing test, and also the following two lesser know and used tests that also allow towns to qualify out of 40B’s:
  1.  If 1.5% of developable land is already occupied by affordable housing,  or
  2. If development of the proposed site would result in development of more than 0.3% of the town’s developable land that year

At the Board of Selectmen meeting last night my colleagues agreed with my suggestion initiated last week at Representative Denise Garlick’s event, that the town hold an informational meeting to discuss Massachusetts General Laws c. 40B, and we settled on Tuesday February 28 as the date to hold that meeting.

Details will follow as to the location (hopefully the Medfield High School auditorium) and other arrangements, as they are made.

Town counsel cautioned in remarks last night that legally there is just not much town’s can do when a developer files to permit a 40B.  There can be some discussions/negotiations between the town and developer around the densities and size and types of units.

I have become aware that there is a lot of current discussion in town about 40B projects, and suggestions are being made for people to attend the Board of Selectmen meeting tomorrow evening to seek to discuss 40B.  While I am delighted to see my fellow residents at our meetings, just so that you are not disappointed, I wanted to share with you my plans to address the current concerns, as well as what I expect will happen tomorrow evening at the meeting of the Board of Selectmen.

Tomorrow night, I plan to ask my colleagues on the Board of Selectmen to support setting up an  informational meeting for residents, to be held at a later date, at which we as a town can all hear from and discuss with knowledgeable experts who can tell us how 40B operates and just what towns can and cannot accomplish in response to proposed 40B developments.

Some people seem to think that such a discussion should happen at tomorrow evening’s Board of Selectmen meeting.  While I absolutely agree that we as a town should have a meeting to discuss 40B’s, and the West street proposal in particular, however, tomorrow evening does not appear to be the optimal time to do so where no arrangements have been made to make it a successful meeting.  Therefore, I do not want people to be disappointed by thinking that an extended discussion is intended to happen at the Board of Selectmen tomorrow evening.

How Did We Get Here

Last Wednesday evening at Denise Garlick’s event there was a lot of discussion of the proposed 40B, and at that time both Mike Sullivan and I agreed that we would seek to set up such a meeting at a later date.

Why Have No Arrangements Been Made for a Successful Meeting on 40B Tomorrow Night

I am but one member of a three member Board of Selectmen, and therefore I need my colleagues involved (neither were at Denise Garlick’s meeting) – and I also think it is both important and better for the town if all our selectmen are involved.  So it is my hope to get our other two selectmen involved when we meet on Tuesday evening.  Because of the Open Meeting Law I am only allowed to speak with them at our meetings, so as I write this I am not even aware as to whether they have any idea so much discussion is occurring.

What arrangements are needed

For any meeting about 40B to work best, we need to make some basic appropriate arrangements –
•    to have the right agenda,
•    to have the right presenters, and
•    to have the right location that accommodates all interested residents.
In other words, some minimal planning is needed.  Mike Sullivan says that the town counsel Mark Cerel has been asked and has agreed to present.  Others may be appropriate to ask too, and I want to discuss that tomorrow night.  We especially need the right location, as the Board of Selectmen meeting room accommodates a limited number, and I do not want people to be shut out.  Mike also mentioned to me that Mark Cerel may want time to pull together some materials.

Current Sources of Information

Information is essential to people making correct decisions, and the planned meeting will go a long way to providing that information.  For those who want more information right away, I have posted at my blog (https://medfield02052.wordpress.com/) some links to resources that I have gather over the years from having been an attorney, from having been on the Zoning Board of Appeals of the Town of Medfield, from having written a decision that permitted a 40B (the one on Dale Street next to the railroad tracks), and also from ones I specifically tracked down last Friday afternoon in my effort to assist people who are currently trying to figure out how 40B works and how to deal with what has been proposed.

Conclusion

I think people seeking information about 40B would be much more satisfied, and in the end better informed, if they opted to attend the informational meeting on 40B’s at a date yet to be determined, than to attend the Board of Selectmen meeting on Tuesday evening.  However, people are always welcome at our selectmen meetings, as all our meetings are always open to anyone, and I will be happy to discuss what I know of 40B.  Also, our meetings are usually broadcast live via Medfield TV.  I am writing in detail because I prefer that people know in advance what to expect will happen and what will not happen at our Tuesday meeting, so that people can make their own informed decisions about whether to attend.  As a selectman I make a commitment to attend lots of meetings in town on your behalf, but I also recognize that the town government cannot expect residents to attend multiple meetings as a regular course.  I welcome you to join us tomorrow night, but if you can only spare time to attend one meeting and want to get the biggest return on your time, opt for the later meeting.

I have heard a lot of interest in the past two days about the proposed 40B development on West Street and the whole process under Massachusetts General Laws c. 40B, so this afternoon I put together materials that would assist people to understand the 40B process.  I gathered materials that I have access to as an attorney, and I also went through the materials I accumulated when I sat on the Medfield Zoning Board of Appeals and had to both hear the comprehensive permit application and write the decision for the over 55 project that exists now off of Dale Street, called, I believe The Village at Medfield.

These are my suggested selective Links to Information about Massachusetts General Laws c. 40B:

1.    The statute – http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleVII/Chapter40b

2.    Repeal 40B site – http://www.affordablehousingnow.org/

3.    Commonwealth of Massachusetts, Executive Office of Housing and Economic Development (EOHED) – 40B website –  http://www.mass.gov/hed/community/40b-plan/

4.    Citizens’ Housing and Planning Association (CHAPA) –  http://www.chapa.org/chapter-40b

5.    Massachusetts Housing Partnership’s  Local 40B Review and Decision Guidelines A Practical Guide for Zoning Boards of Appeal Reviewing Applications for Comprehensive Permits Pursuant to MGL Chapter 40B – https://www.masshousing.com/portal/server.pt/gateway/PTARGS_0_210_365_0_0_18/Local40B%20ReviewDecisionGuidelines.pdf

6.    Supreme Judicial Court case holding that the town’s taking of land via eminent domain after a 40B was announced was not done in good faith and would be voided – http://masscases.com/cases/sjc/399/399mass771.html

The familiar 10% affordable housing threshold is one of three in the statute.  The other two tests beyond the 10% affordable housing test, that allow towns to keep 40B’s out are:

1.  If 1.5% of developable land is already occupied by affordable housing,  or
2. If development of the proposed site would result in development of more than 0.3% of the town’s developable land that year

There was a 2009 Housing Appeals Commission case (Arbor Hill Holding Limited Partnership v. Weymouth Board of Appeals) which upheld Weymouth’s denying a permit to a proposed 40B project because the town exceeded one of those other standards.

Lastly, attorney Mark Bobrowski authored the excellent Handbook of Massachusetts Land Use and Planning Law, which has a chapter on comprehensive permits, which  is written for attorneys.