Zoning Board of Appeals - Mar 11th, 2021

Meeting held via remote participation. Materials were available from https://arlington.novusagenda.com/agendapublic/DisplayAgendaPDF.ashx?MeetingID=1287.

Thorndike Place Comprehensive Permit

Tonight's hearing was devoted to the 40B Comprehensive Permit hearing for Thorndike Place.

The board reviews the status of the 180 day hearing schedule.

(Christian Klein, ZBA Chair) Mr. Klein states that today is the 155th day and April 5th is the 180th. If tonight's hearing is continued, March 30th may be the earliest date for the continuance. That's close to the end of the 180-day period.

(Stephanie Kiefer, Attorney for the Petitioner) Ms. Kiefer says she'd be willing to tack on an additional week.

March 30th and April 8th are tentative continuation dates.

(Paul Haverty, Attorney for the town) Mr. Haverty suggests extending the hearing period to April 9th, just to avoid ambiguity. He asks the applicant to provide written approval for extending the hearing until April 9th.

Pro-forma review is the next topic.

(Christian Klein) Mr. Klein notes that pro-forma review takes place after the board has rendered their decision, if the applicant claims that the decision will render the project uneconomic. If the applicant makes this claim, then the board can request an accounting. Mr. Klein suggests the board retain an accountant for this review. The review would be eligible for Chapter 53G funding and cost between twelve and fifteen thousand dollars.

(Paul Haverty) Mr. Haverty says we have a draft decision, but there are pieces of information that need to be filled in before the applicant could prepare a pro-forma. He points out that the applicant could accept the decision as drafted.

(Christian Klein) Mr. Klein says he'll hold off on asking for accountant fees for now.

Next, the notice of project revision to Mass Housing.

(Christian Klein) Mr. Klein says the Select Board wishes to submit comments to MassHousing, under 56.04(5), and MassHousing has fifteen days to respond.

The board votes to send a letter to MassHousing, asking for expedited review of the project changes.

The chair recalls that the public comment period was cut short at the last meeting, because the time reservation for our Zoom meeting was running out. He re-opens public comment on the architecture and urban design aspects of the project.

(Eric Segal) Mr. Segal says he's lived in the neighborhood for 37 years. He's experienced the issues with parking and flooding. He's also stood out on Mass Ave holding a Black Lives Matter sign. He understands the concerns about flooding and parking. He believes affordable housing is an issue of racial justice, and there's not enough of it in Arlington. This project will be life-changing for 40 families, and that has to be balanced with the environmental issues. He believes the law is on the developer's side, and the project is likely to happen. Given that it's likely to happen, he'd like to see the town support it with conditions that mitigate the effects of flooding and traffic.

(Heather Keith Lucas) Ms. Keith Lucas has lived here for fifteen years and she disagrees with Mr. Segal. She says this is a vulnerable population in a flood zone. Arlington is majority white and well-positioned, and there are better alternatives for affordable housing. She says that the intent of improving affordable housing will have detrimental impacts on those it purports to support. She wants the ZBA to ensure that flooding will be contained, and the tenants cars and belongings won't be flooded.

(Patricia Browne) Ms. Browne would like to raise three points. Traffic: she asks if the width of the street has been addressed, and states that the streets are narrow. Second, she says when the project was redesigned, the option for affordable home ownership went away. Third, she says that we're moving towards green energy and asks if the apartment building will cast shadows on neighboring homes.

(Mark McCabe) Mr. McCabe is concerned about traffic, flooding, and crowded streets. He says the development doesn't reflect the neighborhood and that it's hard to understand all 40 pages of the draft decision. He notes that the project is expected to generate 486 additional car trips on an average weekday, and thinks this will be a complete disaster when the pandemic is over. He says that doing a traffic study during a pandemic is like trying to measure snowfall in July. He's concerned that the board will be granting waivers. The development will have an adverse impact, and the neighborhood will be completely changed by development on this site. He doesn't like the idea of building affordable housing in a floodplain and thinks there are better places to build it. He says the town's had a lot of trouble enlarging parking facilities at Thorndike field.

(Robert DiBiase) Mr. DiBiase has lived here for 30 years, and he has many concerns about the excavation for the foundation. He says that no one has stated the displacement of the foundation and asks where the water will go. He's concerned about modular buildings. He says that a street needs to be 25' wide to accommodate delivery and this street is only 24' wide. The modulars will require cranes, and the applicants need to prove that they can be delivered to the site. He believes the construction will restrict movement for the elderly and emergency vehicles. He says that Vox on Two has above ground parking and pumps that run 20 hours per day. He asks what will happen to his property when the applicants run pumps. He hopes the board will look closely at this and make sure there won't be property damage.

(Matthew McKinnon) At the last hearing, Mr. McKinnon asked if the Mugar's had made any previous donations to assist with homelessness. He'd like Ms. Kiefer to provide an answer.

(Stephanie Kiefer) Ms. Kiefer says she isn't aware of the Mugars engaging in a public/private partnership to address homelessness.

(Matthew McKinnon) Mr. McKinnon says he interprets Ms. Kiefer's answer as "no" He says the applicant hasn't done a thing to help the homeless population that's living on their property.

(Janette Cummings) Ms. Cummings asks if any of the board members have visited the site.

(Christian Klein) Mr. Klein says he made a site visit last week, and measured the width of the road.

Several board members nod in response to Ms. Cummings question.

(Clarissa Rowe) Ms. Rowe says that many know her as an affordable housing person. She's one of the people who helped bring the community preservation act to Arlington, which has been a valuable source of funding affordable housing. She's against this project because the site is a swamp. She doesn't want anyone to live in this location and have their cars flooded. She says the state delegation is against this, and the Select Board has opposed the development for decades. She says the town has a good friendly 40B on Mass Ave, and this isn't a friendly 40B.

(John Yurewicz) Mr. Yurewicz has lived here for 35 years. He asks where the $350k of good neighbor money was before. He says residents don't want this building to be built. He says it's an invasion. He says the building will cause flooding in his garage. He asks if the piles will be driven or aggregate.

(Gwen Noyes, Oaktree Development) Ms. Noyes says they've consulted with a geo-engineer, who's ensured them that aggregate piles can be used. They plan to use aggregate piles, not driven ones.

(John Yurewicz) Mr. Yurewicz says there will still be vibration from the aggregate piles. He says the opposition has been going on for decades, and hopes this isn't a foregone conclusion. He wants the ZBA to stand up for the neighborhood and vote the project down. He says that delivery trucks will wipe out low tree limbs on Littlejohn Street.

(Erin Freeburger) Ms. Freeburger says the ongoing sustained opposition has to be considered. She says it feels like there's a lack of context. The roads are narrow, and she doesn't believe that questions are being adequately answered. She wants the ZBA to help the neighborhood understand that they're hearing us. She asks what the height and square footage of the building will be. She doesn't trust Oaktree's rendering of the project.

(John Hession, BSC) Mr. Hession says that the elevation of Dorothy Road is 10'.

(Erin Freeburger) Ms. Freeburger says she doesn't know what that means. She wants to know how tall the building will be.

(John Hession) Mr. Hession says he's getting to that. Dorothy Road is at elevation 10. The buildings first floor would be at elevation 13', or three feet above the surface of Dorothy Road. Each story is 11' high, so the top of the fourth story will be at elevation 57'. The difference between 57' and 10' is 47', so the building will be 47' tall at its highest point.

The total floor area will be between 195,000 and 196,000 square feet; that includes all four floors of interior space.

(Erin Freeburger) Ms. Freeburger asks about the square footage of the buildings footprint.

(Scott Vlasak, Architect) Mr. Vlasak says the footprint is 51,497 square feet.

There are no more comments on architecture and urban design.

(Christian Klein) Mr. Klein says the board has three options: they can approve the plans as submitted, approve with conditions, or deny the application. The applicants can appeal a denial, or an approval with conditions. If the ZBA approves, with or without conditions, then abutters can appeal the ZBA's decision.

(Path Hanlon, ZBA) Mr. Hanlon asks: if the ZBA were to deny the permit and the petitioner appealed to the housing appeals committee, would abutters be able to intervene in the HAC's proceedings?

(Paul Haverty) Mr. Haverty says that appeals are limited to those with standing -- people who are affected in a way that the rest of the town is not. They'd have to show that the ZBA did not act in the best interests of the town. He says that approval with conditions generally provides more ability for abutter appeals. Depending on the situation, appeals would go before the housing appeals committee or land courts.

The draft decision is the next topic for discussion. Mr. Klein displays the text of the draft. He'd like to go through the first two sections with the rest of the board, and then take feedback from the petitioner.

Comments from the board included:

• Noting the dates of local bylaws that applied to the proceedings.
• Providing a better description of the site.
• Finding a better way to state the number of acres devoted to development and the size and types of resource areas on the site.
• Noting the degree of public opposition during the hearing process.
• Mentioning the notice of change to the subsidizing agency.
• Including a broader discussion of the elements that make this a challenging site. These should provide a framing for the project conditions.
• Mention of issues regarding site access.
• Suggestions to break up several paragraphs in the procedural history, because they contain both conditions and elements of procedural history. Conditions should appear in the Conditions section, and not the procedural history.
• A suggestion to note concerns about the condition of the property that would be deeded over to the town.
• There's a suggestion to note the number of comments received. Mr. Haverty advises against attaching all of the comments as an exhibit, because they'll have to be filed in books in deed books at the registry. He thinks it's okay to quote specific comments, though.

The chair asks the petitioners for comment.

(Stephanie Kiefer) Ms. Kiefer says the she hasn't had the opportunity to consult with her team on the draft decision, but she'd like to offer preliminary comments. She suggests including a list of all documents considered by the board, including peer review comments. She says this could be an appendix, or listed in the body of the decision.

(Paul Haverty) Mr. Haverty says a document listing can be helpful, but there isn't a legal requirement to include one.

(Stephanie Kiefer) Ms. Kiefer agrees that there's no legal requirement, but she feels that a document list can provide context to the proceedings.

Ms. Kiefer suggests a more contextualized description of the factual findings. For example, stating where on the site the project is located and what the project consists of. She offers to provide suggestions as a redline.

(Pat Hanlon) Mr. Hanlon thinks that several groups in town will want to introduce revisions, and redlines are a practical way to do that.

(Stephanie Kiefer) Ms. Kiefer would like to include descriptions of where the resource areas are located, amenities included in the project, and so on.

(Shawn O'Rourke, ZBA) Mr. O'Rourke would like to emphasize to the public that the decision document is just a draft, so the board has a starting point to work from. He notes that the board hasn't made a decision on whether to adopt them.

The chair opens the hearing to public comment.

(Anna Kukharskyy) Ms. Kukharskyy says it seems like the 2020 FEMA maps and CCVA assessments from Cambridge and Boston aren't being used here. She thinks that's unwise. She says she moved into new construction in the neighborhood, and flooding issues started within months. She doesn't want to place vulnerable people in a flood-prone area. The traffic studies don't account for the new light on Lake Street. She says that Vox on Two isn't appropriate for traffic comparisons. She says the traffic study is misrepresentative, the graphics are deceptive, and she questions the integrity of the developers. She says the MBTA is outdated and severely in debt, and questions the project's usefulness as transit-oriented development. She says she tried to use public transit after moving in, but wasn't able to make it work.

(Steve Bitteker) Mr. Bitteker says that every aspect of this project is flawed, and there are ethics questions involved. The 40B process is outdated, and it's relied on our outdated zoning maps. Mr. Bitteker says that the R1 district includes cemeteries and it shouldn't; if they weren't part of the R1 district then Arlington would have met its safe harbor threshold. This is a large corporation trying to game the system and cheat. Zoning cemeteries in R1 is wrong. The traffic study was done during a pandemic; it's false data given to game the system. He says that Oaktree was asked to blend into the neighborhood; this is spot on for Mass Ave, but not here. He says this is a single- and two-family neighborhood with quiet streets.

(Pat Hanlon) Mr. Hanlon asks Mr. Bitteker to make his point without resorting to personal attacks. The personal attacks aren't very convincing.

(Steve Bitteker) Mr. Bitteker says he's seen the entire site underwater. The house at 58 Dorothy Road had water pouring into the garage. The street was flooded. He has nothing against affordable housing, but not under flawed, false pretenses.

(Marci Shapiro Ide) Ms. Shapiro Ide is concerned about gigantic trucks and the fact that these are draft conditions. She asks the board to make a finding that the building does not fit into the neighborhood. It doesn't fit. She disagrees with the traffic studies. As for affordable housing, this won't solve our problems. She says we can't overlook the environment. Just because Cambridge is building things on the other side of route two doesn't mean it's okay. She thinks that the Mugars should listen to the residents, and that we've built more affordable housing in the interim.

(Sarah Augood) Ms. Augood says the development is unsuitable. Her basement floods, and it's new construction. She believes that $100k won't be enough to remediate the site -- the actual amount will be more like ten times that. She wants consideration of the wildlife and how pests will be removed. She wants to see the pest control plan approved by Arlington's Animal Control officer, and doesn't want poisons to be used.

(George Hakim) Mr. Hakim says his house was recently re-done. It was built by Carney construction who does a lot of work in Arlington and really knows the area. Mr. Hakim says that Carney filled in the basement; they have a crawl space rather than a full basement. He says this will be built into the ground and will displace groundwater. Wetlands are important. We're close to a city, which creates lots of wastewater and pollutants. He thinks this won't be a useful place for people to live. He says that affordable housing for home-ownership is good, but this isn't it. Rental properties don't provide a path to long-term wealth.

(Steve Moore) Mr. Moore has a comment on point 21 Tree Planting. He says the select board requires watering plans to go along with tree plans, and believes this project should have a three-year watering plan for any new trees. He asks the ZBA to read the Select Board's letter, and encourages them to take those points under consideration.

(William Logan) Mr. Logan wants the board to consider the possibility of loss of use of Thorndike Field. He thinks the field will flood more often if this project is built. He asks the board to consider flooding and traffic. He says that traffic will put a heavy burden on the neighborhood.

(Matt McKinnon) Mr. McKinnon has a question. If the ZBA denies the permit outright, and the HAC overturns the ZBA's decision, would abutters have the right to sue as individuals?

(Paul Haverty) Mr. Haverty says that such a decision from the HAC could be appealed in court, by individuals with standing. Standing generally means abutters to abutters, within 300'.

(Matt McKinnon) Mr. McKinnon says he's afraid of the town getting a piece of donated land that will be a burden to the tax payers. He says that ecological disaster cleanups are the most expensive.

(Robert DiBiase) Mr. DiBiase says that Oaktree has done numerous developments in the area, and that he's driven around to look at them. He thinks that none of their other developments have the impact that this one will. He thinks Oaktree's other projects blend into the neighborhood, but this one doesn't.

(Patricia Browne) Ms. Browne asks what will happen to neighbors that suffer damage as a result of this development. She'd like to know what the developer's obligations are.

(Paul Haverty) Mr. Haverty says that developers would have liability, if the property owner can establish that the damage was a direct result of the construction.

(Brian Rehrig) Mr. Rehrig wants to comment on item 33. He's not sure that constitutes a finding. However, the board's determination of the value and condition of the land would constitute a finding. He thinks it's important for the findings to include more of a description as to what makes this site unique. He urges the board not to leave the drafting of this document up to the applicant, but to allow the Conservation Commission and BETA group to provide feedback.

There are no further comments from the public.

(Kevin Mills, ZBA) Mr. Mills asks about the elevation of the basement floor, relative to Dorothy Road.

(John Hession) Mr. Hession says the elevation of Dorothy Road is 10' and the elevation of the basement floor would be 2.83'. The water table is at elevation 3'.

(Steve Revilak, ZBA) Mr. Revilak has a question about the notice of change and project eligibility letter. He asks what would happen if the funding agency decided that the revised project was no longer eligible.

(Paul Haverty) Mr. Haverty says the agency could invalidate their letter of project eligibility. However, it's much more likely for the funding agency would issue a revised letter.

(Pat Hanlon) Mr. Hanlon asks if the eligibility letter is strictly under the discretion of the funding agency.

(Paul Haverty) Mr. Haverty say yes, and there's no appeal of the funding agency's determination.

Hearing continued Tuesday March 30th, at 6:30pm.

Meeting adjourned.