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.