State agency rules against Arlington on 40B “Safe Harbor”
Mugar hearing resumption postponed at developer’s request
The state’s Housing Appeals Committee (HAC), in a decision that is disappointing but not surprising given HAC’s longstanding bias against local control, ruled this week that Arlington has not achieved a target that would have strengthened the Town’s hand in controlling 40B development.
In 2015 Arlington’s Zoning Board of Appeals (ZBA), after extensive research, 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 and limits the developer’s ability to override local zoning and wetlands protections.
Oaktree, the would-be developer, disputed the Town’s findings. 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.
The ZBA strenuously argued against HAC’s finding in extensive comments.
The decision cannot immediately be appealed to a court of law by the Town. If the developer chooses to go forward with the project, the full Zoning Board-led hearing process would have to continue to a conclusion (either an approval, a rejection, or an approval with conditions). At that time, the Town could bring a court challenge on the 1.5% calculation.
The ZBA announced last week that it would reconvene its hearing on the application on October 29th but the matter has now been postponed at the developer’s request. Our understanding is that they have asked to resume the hearing process in December. We’ll share more news as it becomes available.
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.