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Mugar project returns to spotlight, with decision seen next spring

Records lawsuit in town's favor provides better data 

Mugar site, Google EarthMugar: Most of it is the triangular tract west of Thorndike Field. / Google Earth

The Mugar condo-development project in East Arlington, on hold for nearly two years, will finally get a state hearing after the town prevailed in a public-records lawsuit.

Town Counsel Doug Heim told the Select Board on Monday, Oct. 22, that a hearing is scheduled for Thursday, Oct. 25, and resuming Nov. 2. The issues to be litigated "will be fairly narrow," he said.

In a phone call Oct. 23, Heim explained that, in essence, legal arguments before the Housing Appeals Committee  will parse how state law squares with data computed to demonstrate whether Arlington does, or does not, have enough eligible land area devoted to affordable housing. The benchmark is least 1.5 percent.

Efforts by Oaktree Development of Cambridge LLC, the proposed developer, have been quiet since November 2016, when the town's Zoning Board of Appeals (ZBA) voted unanimously to appeal the state's rejection of the land-area calculation for affordable housing for the 40B Mugar project in East Arlington. 

In December 2015, the ZBA agreed that the town had enough eligible land area devoted to affordable housing -- that is, at least 1.5 percent. To the town, that number meant it had met one of the "safe-harbor" thresholds available under Chapter 40B, the 1969 law originally intended to increase affordable housing. Being in that harbor means the town can block the Mugar project.

GIS admin to testify

Adam Kurowski, who manages the town's GIS system, will testify as to how he reached his numbers, Heim said, as will a representative for Oaktree. Since 2015, the North Cambridge developer has been seeking to build 219 units on 17 acres between Thorndike Field and Route 2 in East Arlington.

The issue involved reflects a basic conflict between the need for housing and a community's desire to control development.

Since the spring of 2015, as the links at the end of this summary show, many residents and top town officials have opposed the project. The opposition has led to a lengthy delay and a dispute over whose numbers best show whether Arlington has enough affordable housing. The town has had make its best-guess estimates, because the state has argued, in part, that its data showing group homes is private information.

To get more accurate numbers, the town sued in June 2017. A ruling in that case favored the town, Heim said, and so special counsel Jon Witten will be making Arlington's case with what he believes are more accurate numbers.

Heim called the numbers showing town group-home data and water-body information "pretty solid." But he added that the data is "not perfect."

Heim, who learned recently about firmed-up dates, said he does not expect significant testimony Oct. 25.

He said he was unsure when a decision might be reached, but it may not be until March or April.

Historically, Chapter 40B of state law was enacted with aims to increase affordable housing, but the measure, updated in 2008, has been used over the years to the advantage of developers, critics say.

Waltham case cited

The town had 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 that city's favor.

In the Waltham case, the Department of Housing and Community Development (DHCD) refused to provide the same type of records under the public records laws in Superior Court, Heim told YourArlington last January. In that case, he said, the court directed DHCD to find some way of finding and sharing the information.

An Arlington Land Trust newsletter said last January that, once the lawsuit is resolved, then the Housing Appeals Committee hearing on the 1.5-percent land-area claim resumes, and the committee must decide.

After that, the Housing Appeals Committee decision cannot be appealed immediately by either party, the newsletter says. At that point, the full ZBA-led hearing process on the project itself, called Thorndike Place, would have to continue to a resolution -- approval, rejection or approval with conditions. At that time, whichever party continued to dispute the 1.5-percent 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," its newsletter said at the time.

The site lies almost entirely in the 100-year flood plain, is subject to regular and significant flooding, and is a critical storm-water buffer for the surrounding neighborhoods of East Arlington. 

The case was decided in Middlesex Superior Court. 


Jan. 29, 2018: Town suit seeking Mugar-case land data filed last June

Nov. 30, 2017: Zoning board votes unanimously to appeal decision on Mugar project
Nov. 24, 2016: By slim margin, state rules against town's affordable-housing numbers
Nov. 2, 2016: Mugar developer appeals ZBA vote; state has 30 days to rule
Oct. 19, 2016: Looking ahead to court, selectmen lay out continued Mugar opposition
Sept. 28, 2016: First zoning hearing for Mugar project draws 100, raucous opposition
Sept. 3, 2016: Developer files application for Mugar site permit, citing affordable housing
Dec. 23, 2015: Zoning board readies one of its Mugar project defenses
Dec. 9, 2015: MassHousing approves Mugar 40B application
Nov. 24, 2015: Mugar developer submits document, and town awaits 40B decision
Aug. 19, 2015: Selectmen's comments on Mugar project sent to MassHousing
July 15, 2015: Hearing on Mugar site application tough to schedule
June 9: Step toward 40B filed for Mugar sitetown seeks more time to respond
May 26, 2015: Speakers at Hardy send a clear message about Mugar site: NO
April 5, 2015: Coalition responds point by point to Mugar developer's statements
March 31, 2015: Coalition seeks to preserve Mugar site from development 
Coalition to Save Mugar Wetlands: WordPress | Facebook
March 8, 2015: Belmont Uplands permit issued; opponents vow to continue

This news summary was published Tuesday, Oct. 23, 2018.

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