Zoning Board of Appeals - Jan 5th, 2021

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Meeting conducted by remote participation. Materials were available from https://arlington.novusagenda.com/agendapublic/DisplayAgendaPDF.ashx?MeetingID=1244.

Approval of Minutes

The board approved minutes from their December 22, 2020 meeting.

Comprehensive Permit for 1165R Mass Ave

Tonight opens the hearing for a comprehensive (40B) permit for 1165R Mass Ave.

(Paul Haverty, Attorney/Consultant) Mr. Haverty is acting as a consultant for the town, via a technical assistance grant from the Massachusetts Housing Partnership. He explains that 40B allows an applicant to file a single comprehensive permit, which is heard by the zoning board of appeals. Applicants are allowed to request waivers from local bylaws, but not from state laws and regulations. Towns are subject to 40B if they have not met any of the statutory safe harbor thresholds. These include having 10% of year-round housing on the subsidized housing list, having 1.5% of land area dedicated to affordable housing, or having 0.3% of all acreage under development. There are also safe harbor provisions for recent progress and large projects.

40B applicants must be public entities, non-profits, or limited dividend corporations. They have to demonstrate evidence of site control, show a project eligibility letter issued by a recognized subsidizing agency, present preliminary building, design, and utility plans, and a submit a list of waivers sought.

There are a number of deadlines involved in the 40B hearing process. Boards must open the public hearing within 30 days of receiving an application and they have 15 days to make an assertion of safe harbor. Asserting safe harbor is not the same as denying the project. Applicants have 15 days to appeal safe harbor declarations to DHCD, which must make a decision in 30 days. The board has 180 days to conduct the hearing, and 40 days to render the decision once the hearing has been closed. Any appeals must be filed within 20 days of the decision being rendered.

Boards should hire peer review consultants, as early in the process as possible. Negotiation and work sessions are often a helpful part of the process. The board must balance regional housing needs with local concerns. A board can hold deliberations after closing the hearing. A board's final decision must take one of three forms: approve as submitted, deny, or approve with conditions. Boards cannot ask the applicant to reduce the number of units, unless that request is supported by specific local concerns. Applicants can appeal the board's decision to the housing appeals committee. Other appeals would be heard by the land court or supreme judicial court.

(Pat Hanlon, ZBA) Mr. Hanlon asks what kind of evidence is needed to support a local concern.

(Paul Haverty) Mr. Haverty says the existence of local regulations are not evidence of a local concern. Towns need to provide specific concerns that are related to the specific project. To succeed, these concerns must outweigh the regional need for affordable housing.

(Pat Hanlon) Mr. Hanlon asks if previous safe harbor appeals could influence this hearing.

(Paul Haverty) Mr. Haverty says that municipalities are not required to assert safe harbor. Not asserting in one case has no effect on other 40Bs.

(Doug Heim, Town Counsel) Mr. Heim says the board cannot consider the impact on schools, and there's lots of case law behind this. The application is for land in the industrial zone, and there's little we can do about it. Mr. Heim says denials are rare. As a practical matter, an applicant is likely to appeal to the HAC; the HAC is likely to reject the denial and approve the project as submitted. He says the state has a strong incentive to create affordable housing, even if that means overriding local zoning or other regulations.

(Roger Dupont) Mr. Dupont wishes to verify that the other 40B proposal (Thorndike Place) can't be included in the subsidized housing inventory, because no building permit has been issued. He asks where the Mass Ave project would put us, if approved.

(Doug Heim) Mr. Heim says that no one has done an official calculation. The subsidized housing inventory changes over time; units can be added, but they can also fall off. New affordable housing doesn't count towards the safe harbor calculation until it's been added to the subsidized housing inventory. Mr. Heim believes that the completion of this project would increase the town's ability to assert safe harbor at a later point in time.

(Mary Winstanley O'Connor, Attorney for the Applicant) Ms. Winstanley O'Connor says this project has been a long time in the making. They made presentations to neighbors, sought input from a number of town boards, and the Select Board issued a letter in support of the project.

The Miraks will be the developer, as a limited dividend corporation. Spaulding and Slye is a partner for design and construction. The Miraks will own the project when it's completed.

The project is designed to comply with the Master Plan, Housing Production Plan, and Open Space and Recreation plan. There will be 130 units ranging from studios to three-bedrooms, and 25% of them will be affordable.

The site will offer a variety of transportation options to residents, and there will be a transportation demand management plan. The Master Plan says that Mass Ave and the Mill Brook area have potential for growth. Ms. Winstanley O'Connor says this development will be attractive to seniors and to people who work in the area. The project will re-use buildings, showcase the Mill Brook, and provide a connection to the bike path.

(Joel Bargmann, Project Architect) Mr. Bargmann says that Mill Brook is part of Arlington's Industrial history. This was a mill site for many years, and like all sites, it's changed over time. Workbar is not part of the development, but it is on adjacent property that's owned by the Miraks.

Mr. Bargmann says they're trying to tie the Mill Brook to the neighborhood via restoration and the pedestrian environment. There will be three traffic routes to the site: Ryder St, Mass Ave, and Quinn Road.

Building #2 will be replaced, and they'll widen the traffic access alongside Workbar. The current traffic area is not large enough for a fire truck to get through.

There will be very little surface parking; most parking will be provided underneath the buildings. This will allow more impervious surface on the site.

(Kyle Zick, Landscape Architect) Mr. Zick says the development will have a courtyard and a plaza. They're planning a mixture of pavement and landscaping, drawing inspiration from the brook.

(Joel Bargmann) Mr. Bargmann says they plan to remove the windowless out-buildings in the rear of the property, along with the buildings that cover Mill Brook. The buildings will be 16' below the surface of Mass Ave.

(Kyle Zick) Mr. Zick says they want to celebrate the Mill Brook Corridor. Currently, there's almost no greenery on the site, and portions of the brook are covered and built over. They're also planning to have a bike room.

(Joel Bargmann) Mr. Bargmann says they'd like to open the brook to the community. There will be a public access walkway. There will also be a private outdoor amenity space for residents, situated away from the neighborhood.

(Kyle Zick) Mr. Zick talks more about the outdoor common area.

(Joel Bargmann) Mr. Bargmann says the construction will try to mimic the appearance of a mill building.

(Kyle Zick) Mr. Zick says the property currently has 6% green space. When finished, it will have 22%. There will be a lot less pavement.

(Joel Bargmann) Mr. Bargmann says the new layout will provide better emergency access to the site.

(Pat Hanlon, ZBA) Mr. Hanlon asks if Mr. Bargmann's presentation slides could be put into the record.

(Mary Winstanley O'Connor) Ms. Winstanley O'Connor says they can submit the slides for the record.

(Pat Hanlon) Mr. Hanlon asks if the apartment will use a fossil fuel heating system.

(Joel Bargmann) Mr. Bargmann says the heating system hasn't been designed yet. They're currently evaluating several fossil-fuel-free and high efficiency gas systems.

(Kevin Mills, ZBA) Mr. Mills asks if the fire department is satisfied with the emergency vehicle access route.

(Mary Winstanley O'Connor) Ms. Winstanley O'Connor says the fire chief and building inspector have reviewed the site plans.

(Kevin Mills) Mr. Mills asks if the new bridge (over Mill Brook) will support the weight of a fire engine.

(Joel Bargmann) Mr. Bargmann says yes, the bridge will be designed to do so.

(Susan Chapnick, Conservation Commission Chair) Ms. Chapnick says the applicants have appeared before the conservation commission for a working session and an RDA. She says that part of the site is a historic mill complex, and therefore exempt from riverfront standards. She says there's a tributary on the property, called Ryder Brook. It's not jurisdictional, because it's not considered a stream under state law. She says it may be jurisdictional under local regulations.

(Steve Revilak, ZBA) Mr. Revilak asks if there's any concern about soil contamination on the site.

(Mary Winstanley O'Connor) Ms. Winstanley O'Connor says there's no concern of soil contamination.

(Susan Stamps, Tree Committee) Ms. Stamps says the tree warden never received information about the project, and that the applicants need to submit a tree plan. She says there are 13 trees on the site, and the town can't afford to lose them. She asks that a tree plan be submitted and discussed with the tree warden, and that the tree bylaw not be waived without consultation with the tree warden.

There are no further questions from members of town boards. The chair opens the hearing to public comment.

(Robert Annese) Mr. Annese says he hasn't heard any mention of his building on Mass Ave, which will be impacted by the project. He's submitted a letter to the board. Mr. Annese says his building was built in 1845, and that he bought it in 1988. At that time, the Hyundai dealership was a gas station. He says he never expected to have a 130 unit apartment building using his right of way. The says the entrance to the auto dealership is twenty feet from his parking lot. There's also traffic from Workbar. He asks what will happen with other parcels that are owned by Yukon Realty, and what the traffic will be like. He says that one cannot burden a right of way. He believes the apartment will need more than 130 parking spaces, and wonders where the excess will go. Mr. Annese says he's okay with the concept, and with the Mirak family. He spent $250,000 to rehabilitate his building in 1992, and doesn't want to have that taken away. Mr. Annese doesn't want additional traffic on his right of way.

(Alex Tee) Mr. Tee has a list of questions, but thinks that right of way access is most important. He believes the right of way and land ownership aren't correct on drawings submitted to the ZBA. He doesn't believe that a two-day traffic study provides enough of a representative sample. He says that Ryder street is the gateway to the bikeway and to the middle school, and there are a lot of near misses. He's like the plan to control for these factors. Mr. Tee believes the project could add traffic to two dangerous intersections in the area. He asks why access to Ryder street is necessary, and why the project can't be done with a single curb cut.

(Christian Klein) Mr. Klein says there will be a dedicated hearing on traffic later, and that the traffic study will be peer reviewed. The schedule for future hearings will be posted once it's established.

(Nicole Weber) Ms. Weber says this is a landscaping area, and a lot of landscaping trucks come and go during the summer. She thinks that Mr. Zick said some good things about having more green space. She's concerned about the board going by state regulations rather than local ones, as the local ones tend to be more restrictive. She's concerned about the mature trees on the site, and about the safety of her kid who goes to the middle school. She asks if the developers plan to adopt any of the changes suggested at the neighborhood meetings. She's also concerned about shadows, and feels like this meeting is too constrained and hierarchical.

(Christian Klein) Mr. Klein asks if Ms. Weber was referring to a meeting between the developer and members of the community.

(Nicole Weber) Ms. Weber says yes.

(Christian Klein) Mr. Klein asks if there are minutes from this meeting.

(Mary Winstanley O'Connor) Ms. Winstanley O'Connor says that some people took notes, but they're aren't formal minutes. She says there were concerns about shadows during that meeting.

(Joel Bargmann) Mr. Bargmann says that a shadow study was performed, based on requests made at that community meeting, and that study can be made available to the board.

(Naren Deshpande) Traffic is Mr. Deshpande's biggest concern, and he believes it should be studied in more detail, along with parking overflow. He'd prefer the project to have one entrance from Mass Ave. He says that students routinely walk on Ryder Street, and it's also a popular access point for the bike path. He says there's a very diverse set of roadway users. He asks if there are plans to maintain the road and add lighting, to prevent conditions from deteriorating.

(Wynelle Evans) Ms. Evans says she really feels for Ryder Street residents. She says that Battle Road is a great possibility for tourism, but the plans obscure the historic nature of the site. She's concerned about the loss of a property in the industrial zone, and says the town can't afford to lose it. She says that Arlington is teetering on becoming a bedroom community. She asks about plans for the abutting properties. She says that building 1 currently contains artists studies, and she'd like to see a plan for their relocation.

(Mary Winstanley O'Connor) Ms. Winstanley O'Connor says that other members of the Mirak family have control of the adjoining sites.

(Mariah Contraras) Ms. Contraras has questions about safe harbor thresholds. She says that Arlington did an analysis of the industrial districts. That analysis examined a nearby lot on Ryder street. She's alarmed at what that might mean to her and her neighbors.

(Christian Klein, ZBA Chair) Mr. Klein wants to explain the industrial study. He says the build-outs in the Harriman study were tests to see how the proposed changes would work; there's no project imminent. Mr. Klein says that the board is limited to considering the specifics of this permit, and can't consider things that might happen in the future.

(Mariah Contraras) Ms. Contraras reiterates earlier concerns about traffic.

(Pat Hanlon) Mr. Hanlon says the board's job is to balance local concerns with the need for affordable housing. The more specific the concerns are, the more likely we can seek to alleviate them.

(Peter Maradianos) Mr. Maradianos says that he'll be impacted by this development. He says that Beck road wasn't included in the study, and that the town just reclaimed 33 Ryder Street. He says there's lots of heavy equipment traffic on Ryder Street and asks where the traffic will go. He thinks the Miraks are doing a good thing, but it's not perfect for this location.

(Susan Stamps) Ms. Stamps notes that Arlington just submitted a home rule petition to ban gas heat in new construction. She says there seems to be a lot of pavement, and wonders if some of it could be permeable.

(Kyle Zick) Mr. Zick says they're looking at different kinds of pavers. He notes that there will be an overall reduction in the amount of impervious surface.

(Mary Winstanley O'Connor) Ms. Winstanley O'Connor says she wasn't aware of the clean heat home petition.

(Nicole Weber) Ms. Weber suggests there may be a need for a traffic light at the intersection of Forest Street and Mass Ave.

(Tom Taylor) Mr. Taylor believes there are safety issues with the current configuration. He says that residents have to park in front of his house because other people are parking in front of their houses. He's concerned about children coming from the school, and says that landscaping vehicles drive quickly down the street. He believes that the new apartment will have a negative impact on property values, and he'd like the Miraks to have the abutters property assessed. He asks that Mr. Tee's PowerPoint be included in the public record.

(Rick Vallarelli) Mr. Vallarelli says the PowerPoint presentation has been added to the public record.

(Alex Tee) Mr. Tee says the project is in a flood zone and asks if there have been studies of the flood impact.

(Joel Bargmann) Mr. Bargmann says that a civil engineer will address this topic at a future meeting.

(Peter Maradianos) Mr. Maradianos says that Ryder street isn't wide enough for two-way traffic, and this should be looked at.

There's no further public comment.

The board votes that the 180-day hearing period starts on Jan 5th, and to move all documents received.

(Doug Heim) Mr. Heim has a few words to say about safe harbor. Mr. Heim says that a safe harbor assertion doesn't mean that the project is being denied. Instead, it means there's a mechanism for the applicant to appeal to the housing appeals committee. In 2016, Arlington believed it had met one of the safe harbor thresholds, but the courts disagreed. He says the board can assert, knowing that they're likely to lose. Or, they can not assert. He says that either outcome preserves the board's position.

(Pat Hanlon) Mr. Hanlon doesn't believe it will be in the town's interest to litigate through the housing appeals committee, especially since not asserting now doesn't prevent us from asserting later. He says there are issues to resolve, but they're not as conflictual as Thorndike place.

(Steve Revilak) Mr. Revilak agrees with Mr. Hanlon.

(Christian Klein) Mr. Klein says his initial thought was to assert safe harbor, because that's what the board has done in the past. But that would take a long time to get us to the same place as if we didn't assert. Now, he'd prefer to let the process proceed.

(Roger Dupont) Mr. Dupont agrees with Mr. Hanlon. He'd prefer not to assert safe harbor, in the hopes of making this a more cooperative effort.

(Doug Heim) Mr. Heim says the board doesn't have to take a vote if they're not asserting safe harbor. He says that having statements on the record are sufficient.

(Christian Klein) Mr. Klein says that peer review is next.

Hearing continued to Feb 23rd, at 7:30 pm.