Arlington ZBA appeals adverse ruling by state

December 15, 2016:  The proposed development of the Mugar Parcel is headed to the state Housing Appeals Committee for the next round of procedural argument.

Arlington’s Zoning Board of appeals (ZBA) has asserted that the Town has met one of the “safe harbor” thresholds available under Chapter 40B, that of having 1.5% of eligible land area devoted to affordable housing.  If achieved, that status gives the Town more control over 40B projects and limits the developer’s ability to override local zoning and wetlands protections.

Oaktree disputed the Town’s findings, and in its November 25th decision the state Department of Housing and Community Development (DHCD) agreed with Oaktree. These are technical arguments involving precise reading of the statutes, and have never been tested in court. It is likely that the Housing Appeals Committee, a quasi-judicial body housed within DHCD, will side with the developer as it does in the vast majority of cases.

The decision of HAC may take up to eight months, and cannot immediately be appealed to a court of law by either party.  The hearing process on the project itself would have to continue to a conclusion (either an approval, a rejection, or an approval with conditions).  At that time, whichever party continued to dispute the 1.5% calculation could raise it as an issue in a court challenge.

Zoning Board asserts ‘safe harbor’ protection from hostile 40B proposal

September 30, 2016:  The formal hearing process on the Oaktree Development proposal to develop the Mugar site began at the September 27th meeting of the Arlington Zoning Board of Appeals, with the ZBA  asserting that the Town of Arlington has met one of the ‘safe harbor’ criteria provided by Massachusetts Chapter 40B.

If a community can demonstrate that 10% of its housing stock, or 1.5% of its land area, is devoted to qualified affordable housing then it can exercise greater discretion in handling of a 40B application.  Such projects are empowered by 40B to request waivers from local bylaws regarding zoning, wetlands and other restrictions if those restrictions are more stringent than state law, and routinely do so.  And local boards are required to grant them if the stricter local bylaws would render the project “uneconomic”.  However, a Zoning Board can decline any such requests if the community has met one of the “safe harbor” criteria.

The ZBA’s calculations show that Arlington has slightly over 1.5% of its land area in qualified affordable housing.  Oaktree disputes that calculation and announced at the hearing that it would appeal the claim to the state Department of Housing and Community Development (DHCD), which should be expected to render its opinion in roughly 60 days.