December 2018 Update
Hearing held and decision awaited on 40B dispute
Does affordable housing occupy at least 1.5% of the land area in Arlington? That seemingly arcane question was debated in November at a long-delayed hearing before the state’s Housing Appeals Committee (HAC), whose decision will shape the next steps in the proposal to develop East Arlington’s Mugar Parcel.
The issue has been in contention for three years; see the December 2017 update for background.
At the hearing the Town’s experts presented a detailed analysis of highly technical land use data to support its position and demonstrate that it is properly applying state regulations. Oaktree relied on ambiguities in the rules to argue against the Town’s position.
A decision in the Town’s favor would empower it to enforce all local zoning and wetlands protection laws despite the developer’s invoking of state Chapter 40B.
HAC is expected to take several months to rule. Its decision, whenever it comes,cannot immediately be appealed to a court of law by either party. The full Zoning Board-led 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.
Arlington Land Trust continues to advocate for the permanent protection of the Mugar parcel as conservation land. The site lies almost entirely in the 100-year flood plain, is subject to regular and significant flooding, and is a critical stormwater buffer for the surrounding and downstream neighborhoods of East Arlington.
December 2017 Update
Mugar project stalled on procedural lawsuit
Proposed development of East Arlington’sMugar Parcel is now the subject of a procedural lawsuit between the Town ofArlington and the Commonwealth of Massachusetts.
The Town has sued the state over thewithholding of information by a state agency – information that is needed to confirmthe Town’s claim that it has the right to enforce its bylaws, even in the faceof a Chapter 40B housing proposal.
In December 2015 Arlington’s Zoning Board of appeals (ZBA) 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, the would-be developer, disputed the Town’s findings, and in a November 2016 decision the state Department of Housing and Community Development (DHCD) agreed with Oaktree. In early 2017 the Town appealed that decision to the next level, the Housing Appeals Committee (HAC).
The current dispute involves defining “Land area devoted to affordable housing”, which includes the area of 40B-eligible housing inventory under the jurisdiction of the state Department of Mental Health (DMH) such as group homes. In a classic Catch-22, however, the state agency that maintains the data has refused to release it citing privacy concerns. Arlington included an estimate in its calculations, but only with the real numbers can it be certain. The Town has sued to obtain the data, relying largely on a recent court decision resolving a similar impasse between the City of Waltham and the state, in Waltham’s favor.
A court decision on this point may take months, at which point the HAC hearing on the 1.5% claim resumes. A HAC decision, whenever it comes, cannot immediately be appealed to a court of law by either party. The full Zoning Board-led 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.
Arlington Land Trust continues to advocate for the permanent protection of the Mugar parcel as conservation land. The site lies almost entirely in the 100-year flood plain, is subject to regular and significant flooding, and is a critical stormwater buffer for the surroundingand downstream neighborhoods of East Arlington.
219-Unit Development Proposed for Mugar Site
Project would be Chapter 40B residential
Oaktree Development of Cambridge has informed the Town of Arlington that it intends to propose a 219-unit development on the Mugar site.

The Town Manager reported to the Selectmen in late March that Oaktree informally presented to Town Staff a development consisting of 12 townhomes along Dorothy Road fronting a 207-unit apartment complex with parking for over 300 cars.
Vehicle access to the site appears to be from the intersection of Littlejohn Street and Dorothy Road, and from the intersection of Edith and Burch Streets, but the developers alluded to an effort to obtain a new curb cut on Route 2 from MassHighway.
The project would be proposed under the state Chapter 40B law which allow streamlined permitting if a project contains a certain percentage of affordable housing.
Arlington Land Trust continues to advocate for the permanent protection of the Mugar parcel as conservation land. The site lies almost entirely in the 100-year flood plain, is subject to regular and significant flooding, and is a critical stormwater buffer for the surrounding and downstream neighborhoods of East Arlington.
A Coalition to Preserve the Mugar Wetlands is forming. For more information visit the Coalition’s facebook page.