Mega-40B update


I have seen much more discussion about the mega-40B and questions have been posed to me, so while not a 40B expert, I will try to share what I do know and have learned in my readings.  Plus I own a copy of Mark Brobowski’s Handbook of Massachusetts Land Use and Planning Law, from which I can reference things.

Christian Donner asked about the infrastructure impacts and whether the state, in the form of the Housing Appeals Committee (HAC), which would review any permit denial by our ZBA and/or any conditional approval that allegedly made the project uneconomic, would take those into account.  Brobrowski states in his book:

“Boards of appeals denying or approving comprehensive permits with conditions almost invariably fall back on well-worn planning arguments as a justification.  Almost invariably, the HAC rejects such contentions.  Some of the local concerns that have been repeatedly adjudicated before the HAC include:
•    school crowding
•    drainage
•    traffic
•    sewers
•    water provisions
•    noise
•    site accessibility
•    inconsistency with local plans
•    environmental degradation
•    open space
•    density
For all practical purposes, the burden of proof for the board of appeals is set forth in 760 CMR 31.07(2)(b).  The natural environment must be “endangered”; design of the site or the proposed housing must be “seriously deficient”; and open spaces must be “critically needed.”  Only in the rare case will the local planning concerns outweigh the regional housing need.  In such cases, the board’s decision to deny or approve a comprehensive permit with conditions that render the project uneconomic will be upheld by the HAC.”

In Bobrowski’s book, each of these items has a footnote to the cases that underlie those statements, and as with all legal issues, one must know both the statues, the regulations, and the cases interpreting both, to really know the law.  One case that I read that indicates the level of expense the town in expected to absorb, stated that it is not a reason to deny a 40B development because the town has to build a new waste water treatment plant – indicating the high level of expense that the state is willing to impose on the community hosting the 40B.

Karen Scotti questioned the water supply to service the new housing, and I do not know the answer to that question, except that I do see that Bobrowski seems to indicate that is not a basis, citing Groton Hous. Auth. v. Groton Zoning Board of Appeals, HAC Dec. at 5-6  (Sept. 19, 1991).   What I have been told by Mike Sullivan is that our aquifer actually has a plenty of water, but the still DEP limits the amount that we can take out via permits because of various regional factors, such as wanting greater water flow in the Charles River.  One of my first ideas on how to reduce our property taxes was actually for the town to sell our water, where we had so much – Mike said the town cannot go into such businesses, and that was before I knew the DEP limited what we pumped out of the ground.  I attended a meeting of municipal officials about 10-15 years ago, hosted by the DEP and the Charles River Water Shed Association, at which both groups advocated for towns to limit resident water usage to 60 gallons per person per day (we were at 90, and as I understand the issue would basically have to forego lawn watering to get to 60) because the Charles River had pond fish in it instead of river fish – they were saying because the river needed greater flow, that we should use less water.  Those in attendance, with greater knowledge than I pointed to the dams on the river, the years of recorded data on water flows in the Charles showing no lessening in the amount of that flow, and a study that had been done in Connecticut on the issue that pointed to the dams as the reason the river fish had disappeared.

Shawn Collins questioned infrastructure improvements installed by The Parc, and it is my understanding, as Shawn said, that the developer did pay for the off site school bus stop and the new sidewalk.  It is also my understanding from discussions with town counsel that such extractions must be closely connected with the site itself for the extractions to be legally upheld.  I did hear Chief Kingsbury make the point that his ladders could not reach the tops of the proposed buildings at The Parc, but I never learned how that issue was resolved.

I had once suggested that the town should make any new developments basically pay for the existing town infrastructure, essentially to buy in for what prior residents have already paid, and I learned that was constitutionally prohibited in Massachusetts – I have been told that other state do allow such a buy in requirement.  The City of Boston seems to have linkage payment requirements that require developers to contribute monies.

If there is interest, I will try to arrange for the town to hold an information meeting to inform residents about the mega-40B and the town’s options.

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