At its December 10, 2019 meeting, the Zoning Board of Appeals heard from representatives of Arlington Land Realty, the developer of the proposed 40B housing project to be located on the Mugar land in East Arlington, and from several abutters and other members of the public. Many questions were raised by ZBA members and residents, with no resolution. The case was continued until April 14, 2020.

For more information, see the ZBA draft minutes of December 10 meeting.

Next Steps in the 40B Process   

A developer acting under Chapter 40B submits a single application to the Zoning Board of Appeals (ZBA) for a “comprehensive permit,” so-called because all permitting procedures are consolidated under the ZBA. The zoning board notifies applicable local boards such as the Planning Board, the Board of Health, and the Conservation Commission and requests their recommendations. 

Within thirty days of the receipt of the application (expected in April) the zoning board begins a public hearing, which lasts up to six months. The ZBA must issue a decision within forty days after ending the public hearing.

At the conclusion of the public hearing process the ZBA may approve the application as submitted, it can approve the project with conditions or changes, or it can deny the application altogether.

Zoning boards and other town officials often work with developers to modify the project. The board may include conditions and requirements on any aspect of the project, such as height, density, site plan, utility improvements, or long-term affordability. If the ZBA denies the application or imposes conditions which render the project “uneconomic,” the developer may appeal the decision to the state Housing Appeals Committee. HAC is generally disposed to favor developers, but may uphold the ZBA decision if it finds that “local concerns,” including health and safety matters and open space needs, outweigh the regional need for affordable housing. 

The comprehensive permit process offers two advantages to the developer: a streamlined and expedited path to permitting the project; and the ability to ask the ZBA to apply less stringent standards than those required by local bylaws, as long as they meet the state’s minimum requirements. A developer may ask for a waiver of any local regulation that it claims renders the project “uneconomic.” For example, Oaktree has already given notice that it may request:

• Waiver to forego full compliance with the Arlington Wetlands Bylaw 
• Waiver from prohibition of a new habitable structure in an Inland Wetlands District
• Waiver to allow less than 2:1 compensatory flood storage

Our Conservation Commission will review the project under the state’s Wetlands Protection Act, which cannot be waived, but Arlington like many communities has wisely adopted more stringent requirements to protect its natural resources. ALT will urge that these reasonable and prudent local environmental standards be upheld.