Ames Pond 40B Q&A: Attorney Sheds Light on Hanover Proposal

At this week’s meeting, Board of Selectmen members and concerned residents heard from Mark Bobrowski, a land-use attorney who specializes in Massachusetts 40B case law. Bobrowski will consult for the Town as the process goes forward; he has helped Tewksbury with five previous projects.

BoS chair Jay Kelly advised residents that Hanover has abandoned the “friendly 40B” Local Initiative Program (LIP) process and intends to pursue a standard 40B for its proposed complex at Ames Pond.

At the July 13 meeting, the selectmen heard a presentation from Hanover, a developer based in Houston with multiple properties in the Boston area. The company has an agreement in place to purchase the property at 300 Ames Pond Drive and plans a four-story, 324-unit residential rental community.

Selectman Jayne Wellman quizzed the town manager and assistant TM on the town’s current position in terms of affordable units. Assistant TM Steve Sadwick says the town is currently just over 10% affordable, 15 units more than the minimum. There are potentially 28 units permitted and in the works, including the Soldier On project, but once the census data reflecting housing stock comes in — possibly in September but potentially later — officials expect the town to be 50 to 60 units short.

“My question now is for Attorney Bobrowski: Is there any latitude that’s granted to municipalities for 40B housing at the beginning of census data when these numbers flip, so that they see there’s a pipeline, things are happening, or is that just a really good opportunity for developers?” asked Wellman.

“It’s more of the latter than the former,” said Bobrowski. In terms of the 10% number, “you’re either there or you’re not.”

Tewksbury’s Local Housing Partnership group currently has about $5.5 million, collected mainly from fee-in-lieu of requests approved by the Planning Board, that’s earmarked for the town to develop affordable units. However, there are no town-led projects in the works that could offset the shortfall.

“The bottom line is, it’s in our best interest to get this going, sooner than later,” said Kelly, who plans to set up a series of meetings with abutters, town boards and other interested parties. 

“One thing that we do very well, under the leadership of our town manager and historically our assistant town manager, it’s to coordinate the town department’s response and concerns around every development that takes place, and not just 40B,” said selectman Todd Johnson.  “So my expectation is that they will follow that same path that they historically execute to protect the town’s interest overall, and make sure that all the various departments have the input that’s necessary for a project of this size.”

Selectman Ann Marie Stronach quizzed Bobrowski on the cost to appeal.

“The question is more framed, if the developer were to appeal this,” he responded. “The developer has the right, as I said, to go to the housing appeals committee. No one else does.”

He pointed out that a developer could argue “disparate treatment” if a town seeks to impose conditions that are not placed on other developments. 

“Then it’s trench warfare,” he said. “The thing to do is to try to reach an accommodation where there’s an agreement signed between you and the developer that they’ve taken a little bit of a hit, and you’ve taken a little bit of a hit, and at the end of the day, you can live with it, both sides. And that avoids the appeal.”

The process does require the signature of the board of selectmen on the application. There is some leverage there for the municipality because the endorsement can be withheld or withdrawn if the applicant doesn’t play ball, said Bobrowski.

Next Steps

Kelly stated that he and the town manager will reach out to other boards and departments and put them on notice to be prepared for the eligibility letter. Still, “leverage no longer sits with the town,” says Kelly. “This is, as you just stated, pretty much a done deal, because it is now in the state’s interest for affordable housing.” 

The attorney answered resident questions about groundwater, stormwater and wetlands issues and the possibility of Hanover applying to build on the remainder of the lot. Any such development would need to be approved through normal channels as the town would no longer be subject to 40B.

Residents with questions for Attorney Bobrowski are asked to route them through the Town Manager. In this Q&A we’ll summarize what the BoS heard about the town’s options.

The full meeting is available on Tewksbury TV.

Q: How will this process work?

Attorney Bobrowski: So the process is pretty straightforward and simple. The applicant [Hanover] goes to a subsidizing agency, in this case it’s likely MassHousing. Once they get what’s called a ‘project eligibility letter’ from the subsidizing agency, they can come forward to the local Zoning Board of Appeals and can make an application for a comprehensive permit. The comprehensive permit is just what it sounds like: A one-stop-shopping approach to all local permits. So whereas the normal situation would be that you would need site plan approval from the planning board, and a special permit perhaps, all of that is wrapped into one.

There is a 30-day window, and it can be extended for an additional 15 days if needed, in which the municipality puts all comments in front of MassHousing, which considers that before it issues the project eligibility letter, and I urge you to be prepared for that because that’s an important first step in the process. For example, if you know that there’s a particular bottleneck of traffic near the location, just as an example, you might want to alert MassHousing so that they can put instructions in the project eligibility approval.

That puts the applicant on notice they’re going to have to fix that. 

Q: Does the BoS, Planning Board or another board have authority?

AB: The ZBA is in charge. They issue a comprehensive permit at the end of the process. But the ZBA should get input from all other boards as well as the police, fire, DPW and other town departments.

Q: What does the process look like, and what leverage does the town have?

AB: It looks a lot like the normal zoning application. Issues are usually the same [as with a normal development,] like traffic noise, neighborhood character, drainage. But the law has a built-in presumption that, if the municipality has not reached 10% of year-round housing stock that is subsidized and affordable, then the need for the housing presumptively outweighs local concerns. It’s been a long time since I’ve seen a denial. And that’s because the law has a series of burdens of proof built into it. If a municipality denies the 40B, then the applicant’s only burden is to show that it meets federal and state health and safety standards. That’s a pretty easy reach. 

Q: What might the town negotiate from the developer?

AB: Projects are typically reviewed or approved with conditions, and those conditions go into the mitigation details, everything ranging from landscaping, lighting, access improvements, water/sewer improvements, all that stuff is usually on the table. My role is typically to coordinate the peer review that the municipality will need and to negotiate on behalf of the municipality with the direction of the board of selectmen and/or the ZBA.

Good developers are typically willing to work with community negotiators. Most developers I work with have a mitigation budget, and they are prepared to try to do something that will help the municipality. How much, and what that mitigation is, is a matter that can be worked out.

I helped the town of Winchester, for example, with a project on the Woburn line. There was a shopping mall on Route 3, across a divided highway. Nobody from Winchester could get to the shopping mall without crossing an enormous, unsafe road. So the developer didn’t need to do this, but he stepped up to the plate and arranged for a pedestrian crossing there with a flashing yellow light. That’s the kind of thing that a good developer will take into account, and try to accomplish for the municipality. 

Q: Is there an appeals process?

AB: The developer alone has the right to appeal. I have litigated some 30 or 40 cases to the housing appeals committee. I can only think of about a dozen projects in history that have been denied.

Q: What is the effect of this project on Tewksbury’s future 40B position?

AB: The quota for affordable housing is always minimum 25%, so 25% of the units are affordable. Ten percent of units must be three bedrooms, that’s a state regulation that never gets waived, especially on a large project.

In a project like this, all of the units will count towards the town’s subsidized housing inventory number. So, if it’s a 300 unit project and 300 units are approved, that’s 300 units on your affordable rolls. It will be well into the 30-year time period before 40B becomes an issue again.