STONEHAM - Nearly 20-years-ago now, an environmental attorney hired by a private citizen first argued the Town of Stoneham had achieved a 1.5 percent land mass "safe harbor" that protected the community from adverse Chapter 40B developments.
Local leaders, who in the early 2000s would scoff at the safe harbor suggestion only to flip-flop and present a nearly identical legal contention in 2013 while trying to block a 264-unit apartment complex at Stoneham's Weiss Farm property, are perhaps now ready to concede that the 1.5 percent land mass calculation is too tough a case to prove.
Unfortunately, that tacit admission is being made after the town has passed up on multiple opportunities to add hundreds of Chapter 40B homes to the community's subsidized housing inventory. Meanwhile, in a lengthy 100-page decision issued in March by the state's Housing Appeals Committee (HAC) - which handles all initial legal challenges involving affordable housing projects - Stoneham's Zoning Board of Appeals (ZBA) has been ordered to issue permits for the dense "Commons at Weiss Farm" redevelopment by the Melrose line.
Even with that additional housing inventory, the Town of Stoneham will still be hundreds of units short of a wider known 10 percent minimum under the state's controversial Chapter 40B statute.
Given that reality, Stoneham's Planning Board this spring sprung into action by proposing a new "inclusionary zoning bylaw" that will require all future housing developers, when building eight or more dwelling units, to slate at least 12 percent of the project towards affordable buyers and tenants.
"This basically gives us a pathway to getting some units in without making it onerous on people to build them," said Planning Board Chair August Niewenhous earlier this month during the annual assembly in Stoneham Town Hall. "It's a big problem where if you're looking for too much [in trying to limit the size and impact of a housing project, developers] will just say, 'I'll go with 40B.'"
Finally taking action
In an acknowledgement of just how far behind Stoneham has fallen behind in the Chapter 40B safe harbor quest, Town Meeting members earlier this month unanimously passed the minimum affordable housing mandate without any debate from the floor of Town Hall's auditorium.
Neighboring communities like Woburn, which have waged numerous battles against 40B developers, instituted similar minimum affordable housing ordinances at least a decade before Stoneham.
Without question, the latest legal defeat at the hands of the HAC over the controversial Commons at Weiss Farm development has much to do with Stoneham officials' sudden pivot towards reaching an easier to prove "10 percent" safe harbor status.
Local officials have been battling the proposed affordable housing project at the 26-acre farm site by Stoneham High School since 2013.
Specifically, under Chapter 40B regulations, when a municipality does not have sufficient affordable housing inventory — a determination normally considered to be 10 percent of all dwelling units — developers are allowed to skirt virtually all local building bylaws, as long as they in turn slate 20 to 25 percent of the residential units for income-qualified persons.
Besides being generally handcuffed from denying permits for 40B proposals, cities and towns are also severely limited in the ways in which they impose conditions on such developments, if those restrictions in effect would render the construction "economically unfeasible".
Indeed under the latest HAC ruling regarding the Commons at Weiss Farm project, the state officials in their 100-page decision argued that Stoneham's Zoning Board of Appeals (ZBA), in reducing the size of the project from 264 to 124 apartments, created a financial climate where it would be impossible for Braintree developer John M. Corcoran & Company to realize a reasonable profit on the development.
"The Board’s reduction of the number of permitted units from the proposed 259 to the permitted 124…is the primary condition challenged by Weiss Farm as rendering the project uneconomic," the HAC wrote in its March 15 ruling.
"Weiss Farm alleges this condition alone renders the project substantially more uneconomic, because it lowers the overall return to project investors by over 25 percent. We find this condition substantially contributes to the change in the return on total cost of the project from the proposed to the conditioned project," the state housing officials added.
When the Corcoran Company first pitched the Weiss Farm redevelopment in 2013, the ZBA and other town officials argued that Stoneham could rightfully brush aside the 40B protections the developer felt it was entitled to under a lesser known safe harbor status known as the 1.5 percent land mass threshold.
Under that standard, cities and towns are considered exempt from adverse Chapter 40B developments, so long as 1.5 percent of a community's total "developable" land mass includes properties with subsidized housing units.
However, the HAC and the Mass. Department of Housing and Community Development (DHCD) has now rejected that claim no fewer than three times over the past eight years.
Much to the dismay of town officials and Duxbury attorney Jonathan Witten, who has been retained by Stoneham to help push back against the Weiss Farm redevelopment, both state entities are refusing to entertain the town's 1.5 percent claim while at the same time refusing to furnish information about state-managed housing projects that could prove the town's case.
"The rules of 40B are horribly slanted against the municipality. But municipalities have not fared poorly, when they stood up to a [proposal] that was the wrong development in the wrong location," Witten advised town officials during a 2013 discussion about the HAC process.
Less aggressive posture
Unlike many of its neighbors, Stoneham for the past 20 years has only faced a limited number of Chapter 40B petitions, and with the exception of the Commons at Weiss Farm petition, none of those permitting requests have been granted under duress.
Perhaps for that reason, town officials have evidenced a somewhat laissez faire attitude around previous safe harbor arguments being presented by opponents of previous Chapter 40B petitions.
In the early 2000s, a handful of residents by Christopher Street - situated with close proximity to Franklin Street and the proposed site of the current Weiss Farm project - first mentioned the possibility that Stoneham had reached the 1.5 percent threshold.
At the time, a Boston attorney had offered to present substantial paperwork to the town's ZBA backing up that claim, but the local officials, not overly concerned about the underlying petition for an eight-unit townhouse development, largely ignored that submission.
In 2005, Burlington's Gutierrez Company submitted a so-called "friendly 40B" proposal to erect as many as 350 housing units at the former Boston Regional Medical Center (BRMC) property across from Spot Pond. Town officials, who ultimately encouraged the redevelopment of the 40-acre hospital property, would yet again be presented with written objections to the proposal on the grounds that Stoneham had met its 1.5 percent obligation.
Ironically, when the Gutierrez Company in 2010 sought to remove the 40B designation to pursue a market rate redevelopment, some town leaders argued in favor of the change on the grounds that Stoneham had met the 1.5 percent land mass standard.
Similar arguments were made during subsequent Town Meeting discussions in 2012 over the creation of a residential zoning district around the old AW Chesterton site by I-93 and the Winchester line. Some citizens had argued that a minimum 40B requirement should be included in the rezoning effort to be sure Stoneham was on pace to meet the 10 percent standard.
However, opponents of that last-minute zoning amendment suggested there are no large parcels of land left in the community where an adverse 40B development could be erected. In 2014, after the Weiss Farm redevelopment was first pitched, citizens were asked to strip that special residential overlay from the A.W. Chesterton grounds, but that warrant article subsequently failed.
The 16.2-acre property off of Fallon Road now contains a 300-unit apartment complex with no affordable dwellings.