Mugar Site

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.

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.

August 31, 2016:  Oaktree Development has submitted its application to the Arlington Zoning Board of Appeals to build a 219-unit development at the Mugar site.

The entire document set is available to download HERE.  At 225 pages it is best to right-click and download the file rather than trying to open in a web browser.

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. 

September 30, 2016: The formal hearing process on the Oaktree Development proposal to develop the Mugar site began at the September 27th meeting of the Arlington Zoning Board of Appeals, with the ZBA asserting that the Town of Arlington has met one of the ‘safe harbor’ criteria provided by Massachusetts Chapter 40B.

If a community can demonstrate that 10% of its housing stock, or 1.5% of its land area, is devoted to qualified affordable housing then it can exercise greater discretion in handling of a 40B application. Such projects are empowered by 40B to request waivers from local bylaws regarding zoning, wetlands and other restrictions if those restrictions are more stringent than state law, and routinely do so. And local boards are required to grant them if the stricter local bylaws would render the project “uneconomic”. However, a Zoning Board can decline any such requests if the community has met one of the “safe harbor” criteria.

The ZBA’s calculations show that Arlington has slightly over 1.5% of its land area in qualified affordable housing. Oaktree disputes that calculation and announced at the hearing that it would appeal the claim to the state Department of Housing and Community Development (DHCD), which should be expected to render its opinion in roughly 60 days.