Newton ZBA continues to clash with state, developers over 40B threshold
Jan 6, 2017 at 10:57 PM Jan 6, 2017 at 11:20 PM
Attempting to gain greater control over Chapter 40B affordable housing projects in the city, Newton's Zoning Board of Appeals has again asserted the city meets criteria for the state law's "safe harbor" threshold.
But Massachusetts housing officials and the state Housing Appeals Committee have repeatedly disagreed with the ZBA's stance, rebuffing its assertion that affordable housing occupies at least 1.5 percent of Newton's developable land.
On Wednesday, the Department of Housing and Community Development (DHCD) issued its latest ruling on the subject – siding with a developer proposing a 24-unit project at an historic site in the heart of Waban.
In November, the ZBA voted 4-1, with Chairwoman Brooke Lipsitt opposed, to invoke the 1.5 percent threshold, a move that would allow the board to reject or limit the proposal without the developer being able to easily overturn the decision upon appeal.
The developer, 1615 Beacon Street LLC, which wants to renovate a historic farmhouse and build a new three-story structure at 1615 Beacon St., then asked DHCD to review the ZBA's calculations.
State challenges Newton's calculations
Louis Martin, associate director of DHCD, determined in a letter Jan. 4 the ZBA had "not met its burden of proof in asserting" the 1.5 percent threshold.
The ZBA is meeting Jan. 24 and could chose to appeal to the Housing Appeals Committee.
The Planning Department advised the ZBA in a November memo that "Newton continues to believe" it has met the 1.5 percent threshold, calculating the percentage to be as high as 1.67 percent.
But the Housing Appeals Committee, in twin rulings in June 2015, previously found Newton only had affordable housing occupying around 1.27 percent of land zoned for residential, commercial and industrial use.
Martin, in his letter this week, found the ZBA did not submit enough documentation to prove that Newton had exceeded the threshold in the time since those June 2015 rulings.
Newton and the state also continue to spar over the inclusion and exact acreage of certain affordable housing sites – and over whether golf courses should be considered developable land.
The state says the golf courses should be considered developable; the city says they should not, but Newton planners believe Newton has met the threshold even without them.
READ: DHCD's Jan. 4 letter to the Newton ZBA
Lipsitt, the ZBA's chairwoman, remains unconvinced by the Planning Department's numbers. She said in an interview Friday that her own calculations led her to believe Newton is below the threshold.
But Lipsitt said the numbers are close enough it would be reasonable for the ZBA to support either position. Her vote against invoking the threshold was based on her support of affordable housing.
"And given the fact that we could adopt either one, I think that the decision should be made based on our values as a city and what our agenda is," she said.
"I believe the city has made a statement that we are supportive of affordable housing and that we want to take every opportunity to produce it. Chapter 40B is designed for just that purpose."
Affordable housing advocates have slammed the ZBA and the city for repeatedly invoking the 1.5 percent threshold, a move that has led to the withdrawal and significant size reductions of some 40B projects.
Others argue successfully invoking the threshold merely gives the ZBA greater control over development projects here, effectively exempting Newton from a state law, Chapter 40B, that allows developers to circumvent existing zoning as long as they include some affordable units in their projects.
'Safe habor' debate dates back years
Newton officials have been split in the past on exactly how to approach the 1.5 percent issue.
After DHCD ruled Newton hadn't met the threshold in the case of a 135-unit development proposed on Rowe Street, in February 2015, the Newton Law Department advised the board to delay appealing the issue to the Housing Appeals Committee.
City lawyers wanted the ZBA to agree to temporarily put the 1.5 percent issue aside and continue hearings on the project, but the ZBA chose instead to appeal, according to text messages previously obtained by the TAB.
More recently, the ZBA invoked the 1.5 percent threshold, in a 3-2 vote, in response to the proposed redevelopment of the former St. Philip Neri church at 1521 Beacon St. in Waban.
In that case, the developer, Waban AMA Realty Ventures LLC, chose not to appeal and instead worked with neighbors to scale down what was originally a 48-unit project with 10 affordable units.
This past fall the ZBA unanimously approved an eight-unit project with two affordable units. (The developer will also construct two single-family homes by right on adjacent lots.)
The 1615 Beacon St. proposal would renovate an 18th-century farmhouse, which would hold one unit, and construct a three-story, 23-unit building directly behind it. The developer is affiliated with GFC Development Inc.
In a memo to the ZBA, the Planning Department raised concerns about size and location of the three-story structure in relation to the farmhouse, which is on the National Register of Historic Places.
Mike Moshkowitz, a member of the development team, declined to answer questions about the project when reached by phone Friday.