Lawyer: Town must be impartial with Weiss Farm proposal - Stoneham Independent: News

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Lawyer: Town must be impartial with Weiss Farm proposal

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Posted: Thursday, October 10, 2013 1:06 pm

STONEHAM, MA - An affordable housing legal specialist this week exhorted citizens and local officials against trying to block an apartment complex on Weiss Farm before the developer has an opportunity to formally present his plans.

During a special forum on Tuesday night in Town Hall on the state's Chapter 40B or affordable housing regulations, Duxbury attorney Jon Witten warned opponents of the Weiss Farm redevelopment that town officials need to remain professional and fair when reviewing the proposal, which technically, has still yet to be formally submitted.

"I don't recommend that you prejudge anything just because of the nature of the law. You have courts that will treat a community very poorly, if it prejudges an application before it gets across the threshold," said Witten.

Witten, who has been retained to represent Stoneham's interests in eventual public hearings before the town's Zoning Board of Appeals (ZBA) on the Weiss Farm proposal, has successfully worked with a number of cities and towns across the Commonwealth on similar petitions submitted under the state's Chapter 40B or anti-snob housing rules.

Late last spring, Weiss Farm owner Donna Weiss disclosed that she intends to sell the 26-acre parcel off of Franklin Street near the Melrose line to Braintree-based builder John M. Corcoran and Company, which plans to construct as many as 300 apartment units at the site under the state's affordable housing regulations.

In circumstances where a municipality does not have 10 percent of its housing stock dedicated towards affordable buyers and renters, developers are allowed to skirt virtually all local building bylaws, as long as they slate 20 to 25 percent of the residential units for income-qualified persons.

The town may also prove that it has met the minimum limit by proving that 1.5 percent of Stoneham's total land mass includes property dedicated for low-income or other qualified persons.

As Witten explained on Tuesday night, so-called affordable units must be listed as subsidized by an entity recognized by Mass. Housing, in order to be counted towards that 10 percent guideline.

The Duxbury lawyer met on Tuesday night with various citizens, including members of the Friends of Stoneham, a non-profit advocacy group established specifically to fight the Weiss Farm redevelopment.

The community organization this summer successfully collected enough signatures to force the Board of Selectmen to convene a special town meeting, during which $250,000 was appropriated by the assembly for the sole purpose of hiring legal assistance and other consultants during comprehensive permit proceedings before the ZBA on the project.

On Tuesday night, some members of the public questioned why the town, as well as members of the ZBA, shouldn't just come out now and make it clear that they oppose the 40B project, which abutters claim is far too dense for a neighborhood already burdened by heavy traffic, wetlands, runoff, and drainage issues.

However, the 40B expert repeatedly cautioned against that strategy and made it clear that while he understood the neighborhood's concerns, the ZBA had an obligation to carefully consider the merits of the petition.

"The municipality's obligation is to take every application honestly and openly to give an applicant a fair shake, whether the community wants it or not," Witten commented.

The process

While the Duxbury lawyer continually insisted that the ZBA must act impartially, Witten also assured the residents that Stoneham can mount a defense against some of the most detrimental impacts of the apartment complex by carefully soliciting input and advise from a host of consultants to be hired by the town.

He also contended that if that testimony proves that the project itself carries too many health and public safety concerns to be adequately mitigated by the ZBA by adding conditions to an approved comprehensive permit, the town officials are within their rights to deny the petition.

"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," said Witten.

According to the state's affordable housing regulations, the Board of Selectmen will have the first opportunity to object to components of the proposal when Concoran and Co. seeks a so-called project eligibility letter from Mass. Housing or another approved agency.

That state permission essentially declares that the entity about to proceed with an affordable housing project is eligible for financing and has agreed to profit limitations on the development.

While the Selectmen will have 30-days to issue comments on that initial proposal, Witten surmised that its extremely unlikely that Mass. Housing will withhold the project eligibility letter as a result of any objections lodged by the town officials.

"Rarely has Mass Housing denied a project for this project eligibility ticket. You can count the number of times on two hands [that has happened] over the past two decades. You should assume that the ticket will be granted by Mass. Housing," Witten explained.

After the developer receives that approval, he will then be able to submit a formal application to the ZBA for a comprehensive permit. The ZBA must set up and hold an initial public hearing within 30-days of that application.

According to Witten, upon receiving that petition, it is critical that town officials check to see what types of waivers from local zoning bylaws are being sought by Concoran and Co., because the ZBA will likely want to hire consultants to examine whether the applicant's reasoning for those requests is valid.

One of the most important considerations to be made by those consultants is whether the requests for relief should be denied due to public health and safety concerns. However, in doing so, the consultants must be careful to ensure that forcing the developer to comply with the regulation won't carry such a high price-tag, that it renders the entire project "economically unfeasible".

"The developer is going to ask for a waiver from any type of regulation that can possibly interfere with a project. [The ZBA] can only waive a local regulation if [making the developer adhere to the law] would render the project uneconomic. That's the test," Witten said.

In the case of an affordable housing project with rental units, legal precedent has established that a development will be rendered uneconomic, when the petitioner's rate of return drops below 10 percent.

Hiring those consultants quickly is important, the attorney emphasized, because the ZBA technically has 180 days from the opening meeting to gather all relevant testimony. The public hearing must then be closed — unless an extension is granted by the petitioner — and a final written decision on the comprehensive permit must be issued within 40 days.

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