Zoning Board of Appeals - Dec 22nd, 2020

Conducted via remote participation. Meeting materials were available from https://arlington.novusagenda.com/agendapublic/DisplayAgendaPDF.ashx?MeetingID=1239.

Approval of Minutes. The board approved minutes from their December 8th meeting.

Approval of 50--52 Newcomb St Decision. The board approved their decision for Docket 3639, 50--52 Newcomb street.

Thorndike Place continued comprehensive permit hearing. The board continued its Chapter 40B comprehensive permit hearing for Thorndike Place.

(Paul Haverty, Attorney for the Town) Mr. Haverty gives a brief presentation on the comprehensive permit application process. It is a review of 40B with respect to areas where the ZBA is concerned.

A comprehensive permit subsumes all local rules. There is one hearing process in front of one body, the ZBA. This is the so-called one-stop shopping aspect of 40B. The single hearing doesn't preclude other state statutory schemes, such as compliance with the Massachusetts wetlands protection act, the need for a building permit, and so on. The application requires only preliminary plans, and the applicant is allowed to request waivers from local regulations.

The Massachusetts Department of Housing and Community Development oversees 40B, and they've established regulations, including what items must be included in a 40B application. In reviewing these applications, the ZBA can not treat subsidized housing differently than market-rate housing.

The board has 180 days to conduct the hearing, and 40 days to draft a decision. If granted, the permit must have enough specificity for the applicant to determine whether the project is financially viable. Any pro-forma review must be done 30 days before the end of the 180 day hearing.

The board can approve the application as submitted, approve with conditions, or deny the application. In the latter two cases, the applicant is allowed to appeal to the housing appeals committee (HAC). Abutters can appeal decisions through land court or superior court. The HAC will look at the difference between local concerns and local needs, and the board will have the burden of proof for showing that local concerns outweigh local needs. The applicant will have to prove that the board's decision makes the project uneconomic (i.e., financially unviable).

Local concerns can include health, safety, welfare, the environment, architecture, and planning concerns. Mr. Haverty says that efforts to cite environmental concerns are rarely successful. For example, Holliston lost a 40B appeal where they denied a permit because the project did not comply with local wetlands regulations. Mr. Haverty says that in general, the HAC tends to side with applicants.

Mr. Haverty suggests that any permit conditions be tied to health, safety, or the general welfare.

(Christian Klein, ZBA Chair) Mr. Klein makes a correction to the previously announced hearing schedule. He says the 180 day period ends on Monday April 5th, and not Friday April 9th.

(Roger Dupont, ZBA) Mr. Dupont asks about procedural details for examining project financials. When should a board request this information, to allow or peer review?

(Paul Haverty) Mr. Haverty says you have to look at the end of the 180 day hearing period and work backwards. The board can't request financials until its issued a draft decision, and the applicant claims the decision would make the project uneconomic. Mr. Haverty says that a review of financials generally isn't useful, unless the board has a question about whether a specific condition would make the project uneconomic.

Also, the board cannot ask the applicant to reduce the number of units without tying that request to a local concern.

(Pat Hanlon, ZBA) Mr. Hanlon asks if local concerns are limited to regulations in local bylaws. For example, he feels that climate change is a local concern, but there are no state regulations that address it.

(Paul Haverty) Mr. Haverty says the HAC has seen many cases where conditions went beyond what was in a municipality's local bylaws, and they tend to strike those down. The HAC will likely say that it's incumbent upon the municipality to fix regulations they believe are deficient.

(Pat Hanlon) Mr. Hanlon asks about cases where the conservation commission routinely requires something that goes beyond what's in the local regulations.

(Paul Haverty) Mr. Haverty says the town would have the responsibility of showing that it isn't treating the 40B project any differently than non-40B developments.

(Roger Dupont) Mr. Dupont has a question about changes to MassDEP stormwater regulations. When do they announce that new regulations are forthcoming, and when do those new regulations go into effect?

(Paul Haverty) Mr. Haverty says that the state wetlands protection act is administered by the local conservation commission. The effective date of new regulations will be whatever MassDEP says it is. They have some flexibility in deciding how new regulations are phased in.

Next, the board discusses proposed waivers.

(Stephanie Kiefer, Attorney for the applicant) Ms. Kiefer says that under chapter 40B, the ZBA administers all local regulations via the comprehensive permit process. The intent is to expedite the hearing process and facilitate the production of low- and moderate-income housing. The board has the power to grant waivers, and shall grant waivers where local regulations are not consistent with local needs.

Ms. Kiefer says the applicants are requesting waivers from sections 23, 24, and 25(D) of the local wetlands bylaws, to the extent their provisions are not reflected in state statutes. The size of the project was reduced from 219 to 176 units, and the applicant has redesigned and condensed the site. The new site plan allowed the applicants to achieve the 2:1 compensatory flood storage ratio that's required by local bylaws. However, they'd prefer to keep that requirement in the waiver list, in case that adjustments need to be made later in the hearing process.

Regarding vegetation, state laws do not treat adjacent upland resource areas (AURAs) as resource areas, whereas the local regulations do. This project will require some grading in AURAs.

Section 24(B) requires approval and in-kind replacement of plants, but gives the conservation commission flexibility in how the regulation is applied. Section 24(E) requires a species inventory and replacement plan. Ms. Kiefer feels this is an analysis requirement without a set performance standard. She's seeking a waiver from the procedural requirements, so that the applicant can simply do replacement in kind. She'd like the planting plan to be a condition of the permit, and believes that flexibility will allow for a better restoration plan.

Regarding work in the AURA, local regulations define the first 25' as a no-disturb zone, and 25--100' as a restricted zone. Ms. Kiefer feels this is not a precise performance standard, but more of a sliding scale, based on the function of the area. She says that state law doesn't consider buffer zones a resource area. The goal is to protect the resource area and keep the buffer healthy. Work in the AURA will just be at the edges. The applicant intends to protect the AURA, but will need to make limited alterations.

(Christian Klein) Mr. Klein ask if the waiver list could be more specific.

(Paul Haverty) Mr. Haverty says the waiver requests are broad, but mostly with respect to procedural requirements. Outside of procedural requirements, the waiver requests don't seem overly broad. Mr. Haverty says they can be narrowed with conditions, and we'll need to be clear about the difference between substance and procedure.

(Stephanie Kiefer) Ms. Kiefer agrees with Mr. Haverty. She says there is a broadness, which she expects to be narrowed with conditions. She thinks the applicant has already done an alternatives analysis by shrinking the scope of the project, and by going with the alternative that reduced impact.

(Pat Hanlon) Mr. Hanlon says it sounds like we're expecting to narrow the waiver requests to something more specific. He asks where in the process Ms. Kiefer can have a productive conversation with Mr. Haverty. He'd like there to be time for some back and fourth before the hearing ends.

(Stephanie Kiefer) Ms. Kiefer thinks this can go in hand with the wetlands and floodplain discussion.

Next, the board wishes to review answers to several outstanding questions.

(Christian Klein) Mr. Klein goes through the outstanding questions. First there was a request for additional investigation of prior-known isolated vegetated wetlands. Some testing was done previously, but the results were negative or inconclusive. This request is beyond the scope of what's allowed under peer review. However, we can ask the applicant to perform additional study, if the board decides to do so.

Second, there's the issue of rainfall models. Arlington's 2016 bylaws don't mention climate change, and they require the use of the Cornell rainfall data. The question is whether our conservation commission requires applicant to use models with more rainfall than the Cornell model.

(Steve Revilak, ZBA) Mr. Revilak asks which matters for the purpose of this hearing: the conservation commission's practices today, or their practices in 2016 when the application was submitted.

(Paul Haverty) Mr. Haverty says the 2016 practices are the ones that matter. DHCD doesn't want municipalities to change their regulations after 40B hearings have started.

(Christian Klein) Mr. Klein notes that that MassDEP may change their regulations in the future, and asks which regulations would apply.

(Paul Haverty) Mr. Haverty says the project will be governed by the regulations in place when the applicant file their Notice of Intent.

(Steve Revilak) Mr. Revilak says he attended a working discussion between the applicant and the transportation advisory committee, where they discussed Thorndike Place's traffic impact assessment. A member of the transportation advisory committee asked about a direct connection to the minuteman bikeway. Scott Thornton of Vanasse said the idea had been brought up, but there were concerns about the environmental impact of a direct connection.

Mr. Revilak notes that the Alewife Greenway path connects to the Minuteman Bikeway near the route 2 underpass, and the connecting segment is a boardwalk that runs through a cattail marsh. Mr. Revilak would like to understand how the environmental impact of a connection between Thorndike Place and the Minuteman Bikeway would differ from the existing connection between the Alewife Greenway and the bikeway.

(Susan Chapnick, Conservation Commission Chair) Ms. Chapnick says the commission has considered this. She asks Chuck Tirone to talk about the process.

(Chuck Tirone, Conservation Commission) Mr. Tirone says that boardwalks are a public use, but the applicant has to make the request. He says the process for considering a connecting boardwalk would look at the amount of area disturbed during the construction of the boardwalk, plus the amount of area disturbed on the rest of the site. He says the commission reviews proposals, but does not design them. Such a proposal might be viewed favorably, but it would have to be discussed during a Conservation Commission meeting.

(Susan Chapnick) Ms. Chapnick states that the conservation commission provided an additional comment letter to the ZBA on December 18th, regarding potential permit conditions.

Regarding section 23(C) of the local wetland bylaws, Ms. Chapnick notes that the applicants are meeting the 2:1 requirement for compensatory flood storage. She no longer sees the need for this waiver, and believes the scope can be narrowed later in the process.

Ms. Chapnick agrees that section 24 doesn't provide exact specifications, but there is detailed guidance and the conservation commission has standards in this area. The conservation commission recommends that the applicant list the amount and kinds of all plantings, and detail how they'll compensate.

Ms. Chapnick says that regulations for the AURA are not completely discretionary. In addition to providing an alternatives analysis, applicants are required to define zones within in the AURA. She says the conservation commission recommends keeping the 0--25' buffer as a no-disturb zone, and performing mitigation (vegetation replacement, for example) for any disturbances in the 50--100' buffer.

Ms. Chapnick says that the request for BETA to study the area suspected of containing isolated vegetated wetlands (IVWs) was the commission's misunderstanding of the 40B process. She recommends the ZBA conclusively determine that they do or do not exist. One of two boring sites contained hydric soil, which is evidence, but not conclusive. The presence of invasive plants also make it difficult to make a conclusion. She requests that the IVWs be mapped and treated as a resource area with a surrounding AURA.

She asks that the applicants be responsive to community concerns regarding stormwater management, and to comments submitted by the DPW. She says that the stormwater management plan must account for roof runoff.

Ms. Chapnick acknowledges that local bylaws from 2016 require the Cornell method for determining precipitation, and says that forthcoming state regulations will use NOAA 14+. The NOAA model is more current, but it doesn't consider the effects of climate change. She recognizes that the applicants don't have to use the newer models, but suggests that they do so.

The chair opens the hearing for public comment.

(Clarissa Rowe) Ms. Rowe is the founder of the Arlington Land Trust. She says they've hired Weston and Samson to look at the project data, and plan to release their findings when they're available. She says there's a regional need to address climate change, and that sea level rise should be part of the conversation. She says that Cambridge has done a lot of study, and that Arlington cannot think of itself as an island. A storm surge that tops the Amelia Earhart dam will flood this area.

(Pam Heidell) Ms. Heidell is also a member of the conservation commission. She says that the NOAA precipitation models are not based on modeling; they're based on real data from 256 measurement stations in Massachusetts. The newer models require more stormwater capture, but she believes that's appropriate here.

(Jennifer Griffith) Ms. Griffith says groundwater is her biggest concern. She says the groundwater level is high and she believes this building will impact the flow of water underground. Houses in the area wouldn't be buildable in today's world. She believes that anything the applicant does will impact groundwater, and she hopes they won't build.

There are no further comments from members of the public.

(Steve Revilak) Mr. Revilak notes that sea level rise and Cambridge's 2070 modeling of 100-year sea level rise/storm surge events have been discussed at these hearings.

(Pat Hanlon) Mr. Hanlon would like the applicant to understand that he'd feel uncomfortable voting in favor of this project, if he felt there would be adverse consequences. Flooding in particular. He doesn't want to see the board do something that it will come to regret later.