MassHousing approves Mugar 40B application

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UPDATED, Dec. 10: The proposal to develop the Mugar site, 17 acres along Route 2 in Arlington under Chapter 4B of state law can proceed to the next step after approval of eligibility from MassHousing.

The letter providing the go-ahead, in the works since June, was is dated Dec. 4, and Town Counsel Doug Heim, told selectmen about it Monday, Dec. 7. Town officials are expected to continue resisting the project, as they have from last spring, when it was announced.

Oaktree responds

Gwen Noyes, senior vice president of marketing at Oaktree Development of North Cambridge,  the developer, confirmed what WickledLocal initially reported -- that she had spoken with the civil engineer who is looking at studies for further site evaluations.

In the next step in the process, Oaktree would apply for a comprehensive permit from the Arlington Zoning Board of Appeals and appear before that board, but was unsure when.

A town source says application may also be made to the Conservation Commission.

She said that approaching winter weather makes site evaluations difficult, and they are needed before appearing before the ZBA.

Two days before the approval letter is dated, a spokesman for MassHousing told YourArlington that "The review of the application and related materials is complete. The decision-making process is in the last stages at the executive level. The final decision on whether to grant project eligibility will be made soon."

Special Counsel Jon Witten has been working with the town since May on the matter.


Globe: Dec. 10: David Mugar to retire from Esplanade fireworks


Some history

SEB LLC, a representative of Oaktree, applied for 40B eligibility in June. Town and development officials have been wrangling since August about the submitted documents.

The proposed 219 units of housing near Route 2 have drawn persistant opposition from nearly all town officials as well as Arlington's legislative delegation.

Chapter 40B is a 1969 state law aimed to increase affordable housing, but its more recent history shows it is used to allow projects to avoid local zoning rules.

40B enables local zoning boards to approve affordable housing under flexible rules if at least 20 to 25 percent of the units have long-term affordability restrictions. 

The program is controversial, because the developer -- a public agency, nonprofit organization or limited-dividend company -- has the right to appeal an adverse local decision to the state in communities with little affordable housing (less than 10 percent of its year-round housing or 1.5 percent of its land area). 

Communities that have not yet met one of these thresholds can also receive one- or two-year exemptions from state appeals by adopting a housing production plan and meeting short-term production goals.

As of July 2011, 47 cities and towns are appealproof -- 39 because they have met the 10-percent goal, at least three more because they have met the land area standard, and another five with two-year exemptions. Communities above the 10-percent or 1.5-percent threshold can still accept 40B development proposals at their choice.

For a history of the Mugar project, see the links below.

Comments from MassHousing's approval letter 

In the approval letter, Thomas R. Gleason, MassHousing executive director, has the following comments beyond the findings. They are quoted in full:

While Comprehensive Permit Rules require MassHousing, acting as Subsidizing Agency under the Guidelines, to "accept written comments from Local Boards and other interested parties" and to "consider any such comments prior to issuing a determination of Project Eligibility," these rules limit MassHousing to specific findings outlined in 760 CMR 56.04(1) and (4). While many of the public comments submitted to MassHousing are important considerations for your development going forward MassHousing is required only to find that a site is "generally appropriate for housing" based on its review. As such, these issues are not within scope of the Agency's review under existing regulations.
Nevertheless, these public comments are important and should be seen as integral considerations for your development going forward.

Specifically, the Selectmen's letter noted that Arlington has a history of planning for growth and development through the update of the Town's Comprehensive Plan, Housing Plan and Open Space Plan and view the proposed development as inconsistent with local planning.

MassHousing Determination and Recommendations

MassHousing staff has determined that the Project appears generally eligible under the requirements of the Program, subject to final review of eligibility and to Final Approval. As a result of our review, we have made the findings as required pursuant to 760 CMR 56.04(1) and (4). Each such finding, with supporting reasoning, is set forth in further detail:
1. It is important to note that Comprehensive Permit Rules limit MassHousing to these specific findings in order to determine Project Eligibility. If, as here, MassHousing issues a determination of Project Eligibility, the Developer may apply to the Zoning Board of Appeals of the Municipality for a comprehensive permit. At that time, local boards, officials and members of the public are provided the opportunity to further review the Project to ensure compliance with applicable state and local standards and regulations.

A number of the Municipality's comments highlighted elements of the application that the Municipality viewed to be missing and/or incomplete. Over the course of our review, it is not uncommon to request additional information of the applicant to clarify any outstanding items. Prior to completion of our review, all outstanding matters have been resolved and the application is complete. Based on MassHousing's site and design review, and in light of feedback received from the Municipality and abutters, the following issues should be addressed in your application to the Zoning Board of Appeals, and you should be prepared to explore them more fully in the public hearing process:

• Development of this Site will require compliance with all state and federal environmental laws, regulations and standards applicable to existing conditions and to the proposed use relating to floodplain management, wetland protection, river and wildlife conservation, water quality, stormwater management, wastewater treatment, and hazardous waste safety. The Applicant should expect that the Municipality will require evidence of such compliance prior to the issuance of a building permit for the Project.

• The Applicant should be prepared to provide sufficient data to assess the Project's potential traffic impacts on area roadways including traffic volumes, crash rates, and the safety and level of service (LOS) at the site entrances and area intersections.

• The Applicant should be prepared to address Municipal concerns relative to the size, scale and density of the Project and its impact on the character of the surrounding neighborhood, and to fully describe the proposed measures to address and mitigate these concerns.

• The Applicant should be prepared to provide detailed information relative to proposed water and sewer use, potential impacts on existing capacity, and appropriate mitigation.

• The Applicant should provide a detailed planting plan identifying existing vegetation which will preserved along with proposed new planting.

MassHousing has also reviewed the application for compliance with the requirements of 760CMR 56.04 (2) relative to Application requirements, and has determined that the material provided by the Developer in the application is sufficient to show compliance.

This Site Approval is expressly limited to the development of no more than 207 rental units and12 ownership units under the terms of the Program, of which not less than 52 rental units and 4 homeownership units shall be restricted as affordable for low or moderate income persons or families as required under the terms of the Guidelines. It is not a commitment or guarantee of NEF financing and does not constitute a site plan or building design approval. Should you consider, prior to obtaining a comprehensive permit, the use of any other housing subsidy program, the construction of additional units or a reduction in the size of the Site, you may be required to submit a new Site Approval application for review by MassHousing. Should you consider a change in tenure type or a change in building type or height, you may be required to submit a new site approval application for review by MassHousing.

For guidance on the comprehensive permit review process, you are advised to consult the Guidelines. Further, we urge you to review carefully with legal counsel the M.G.L. cAOB Comprehensive Permit Regulations at 760 CMR 56.00.

This approval will be effective for a period of two years from the date of this letter. Should the Applicant not apply for a comprehensive permit within this period this letter shall be considered to be expired and no longer in effect unless MassHousing extends the effective period of this letter in writing. In addition, the Applicant is required to notify MassHousing when the following steps occur: (1) the Applicant applies to the local ZBA for a Comprehensive Permit, (2) the ZBA issues a decision and (3) any appeals are filed.

Should a comprehensive permit be issued, please note that prior to (i) commencement of construction of the Project or (ii) issuance of a building permit, the Applicant is required to submit to MassHousing a request for Final Approval of the Project (as it may have been amended) in accordance with the Comprehensive Permit Rules (see especially 760 CMR 56.04(07) and the Guidelines including, without limitation, Part III thereof concerning Affirmative Fair Housing Marketing and Resident Selection). Final Approval will not be issued unless MassHousing is able to make the same findings at the time of issuing Final Approval as required at Site Approval.

Please note that MassHousing may not issue Final Approval if the Comprehensive Permit contains any conditions that are inconsistent with the regulatory requirements of the New England Fund Program of the FHLBB, for which MassHousing serves as Subsidizing Agency, as reflected in the applicable regulatory documents. In the interest of providing for an efficient review process and in order to avoid the potential lapse of certain appeal rights, the Applicant may wish to submit a "final draft" of the Comprehensive Permit to MassHousing for review.

Applicants who avail themselves of this opportunity may avoid significant procedural delays that can result from the need to seek modification of the Comprehensive Permit after its initial issuance.

If you have any questions concerning this letter, please contact Jessica Malcolm at 617-854-1201.


Nov. 24, 2015: Mugar developer submits document, and town awaits 40B decision

Oct. 7, 2015: Selectmen respond to MassHousing; agency expected decision soon
Sept. 25, 2015: Mugar developer submits 8 project documents after August deadline
Aug. 19, 2015: Selectmen's comments on Mugar project sent to MassHousing
Aug. 13, 2015: Details few as Mugar site developer looks ahead
July 15, 2015: Hearing on Mugar site appliocation tough to schedule 
June 29, 2105: July 22 meeting set as developer moves toward 40B Mugar application
June 9: Step toward 40B filed for Mugar site; town seeks more time to respond
May 26, 2015: Speakers at Hardy send a clear message about Mugar site: NO
Cambridge Day, April 26: 3-year Cambridge master-plan process to start with Alewife
April 5, 2015: Coalition responds point by point to Mugar developer's statements
Opinion: Arlington's Belskis on 40B
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 report was published Wednesday, Dec. 9, 2015, and updated Dec. 10, to add a link and conformation of comment.