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Zoning Board of Appeals
Tuesday December 10th at 7:45pm
Lyons Hearing Room, Town Hall Second Floor

Oaktree Development will appear before the Zoning Board of Appeals to begin the public hearing process on its proposal to build a 291-unit housing project in East Arlington. The meeting is scheduled for 7:45pm.

An overview of the 40B permitting process is below. More background on the proposed project is available on the ALT website and from the Coalition to Save the Mugar Wetlands, which will hold a public discussion at 7:30 pm Tuesday on the steps of Town Hall prior to the Board of Appeals hearing.

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, 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. That timeline for the proposal by Oaktree Development was paused by various state-level administrative proceedings from the time of its original submission in 2015 until the hearing resumes on December 10, 2019.

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.

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.

Read the full ZBA document.

Read the HAC findings.

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.

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.

What’s Happening with Mugar?

December 3, 2017 Update

In 2015, Oaktree Development proposed a 219-unit housing development on the environmentally sensitive Mugar parcel in East Arlington, invoking the state Chapter 40B provisions which allow housing developments with a certain affordable component to skirt local land use controls.

The project has been on hold since December 2015 when 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 far 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 the state Department of Housing and Community Development (DHCD) agreed with Oaktree.  In early 2017 the Town appealed the 1.5% decision to the next level, the Housing Appeals Committee (HAC).

In a separate court proceeding, the Town of Arlington sued the state to obtain data needed to support its 1.5% calculation, and the Town prevailed.

Now – finally – the 1.5% appeal is scheduled to be heard by HAC in late October. HAC may then take several months to hand down a decision.

When that decision comes it cannot immediately be appealed to a court of law by either party.  Instead, the actual substantive hearing process on the project would commence, led by the Zoning Board of Appeals, and continue to a conclusion (either an approval, a rejection, or an approval with conditions).  At that time, whichever party continues to dispute the 1.5% calculation could raise it as an issue in a court challenge.

Why shouldn’t the Mugar Parcel be developed?

The 17-acre Mugar parcel lies almost entirely in the 100-year floodplain as defined by the 2010 FEMA mapping, and includes substantial wetland areas.  The site is a remnant of the Great Swamp of Alewife Brook, a tidal marsh which once handled tidal floodwaters naturally, but has been degraded and filled over the past century.  With increasing development, and increasing rainfalls, our surrounding and downstream neighborhoods, streets and roadways are threatened with more frequent, and more severe, flooding.

Oaktree’s development scheme calls for 219 units of rental housing and over 300 at-grade parking spaces to be built on the western end of the site, covering acres of the site with impervious surface and displacing identified wetlands.

In invoking the provisions of Chapter 40B, the developer has given notice that it intends to seek waivers from many of the local Arlington regulations that protect sensitive natural resources.

Arlington Land Trust continues to advocate for the permanent protection of the Mugar parcel as conservation land.  The site is subject to regular and significant flooding, and is a critical stormwater buffer for the surrounding and downstream neighborhoods of East Arlington.