Zoning Board of Appeals - Oct 5th, 2021

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Meeting held via remote participation. Materials were available from https://arlington.novusagenda.com/agendapublic/DisplayAgendaPDF.ashx?MeetingID=1393.

Approval of Decisions

Motion to adopt the decision for 14 Nicod St. Passed, 5--0.

Comprehensive Permit - Thorndike Place

(Christian Klein, ZBA chair) Mr. Klein provides some context for tonight's meeting. The board received a presentation of the applicant's final proposal at our last hearing, and requested an updated version of the draft decision. There are several versions of the draft floating around, with comments and suggested edits being offered by several groups. Mr. Klein describes the goals of tonight's hearing.

(Paul Haverty, Counsel for the ZBA) Mr. Haverty explains how the board had a draft in the spring, but that was for a prior iteration of the project. It was mostly complete, but not final. The applicant has since revised their project, so it requires a new decision. We've asked for and received feedback from the applicant, and have gotten additional input from BETA and town staff. What's before the board tonight is a set of suggestions for what should be in the final decision. Mr. Haverty explains the relevant deadlines, and that not closing the public hearing in time could result in a constructive grant of the comprehensive permit. Once the public hearing closes, the board has 40 days to render a final decision, though the 40 day period may be extended with permission of the applicant.

(Pat Hanlon, ZBA) Mr. Hanlon wants to stress that the draft decision is not final. During deliberations, the board may add, modify, or delete sections.

(Paul Haverty) Mr. Haverty summarizes the board's options, which are: approve, approve with conditions, or deny. If the board denies the permit, then no member of the public will have standing to bring a case before the Housing Appeals Committee.

The board goes on to review the draft.

We filled in several dimensional values in the section on factual findings.

We verified that the applicants are no longer proposing a Blue Bike station.

(Pat Hanlon) Mr. Hanlon notes that the decision refers to the housing as being senior living with services, for ages 62+. He asks if the applicants will stand behind having that in the decision.

(Stephanie Kiefer, Counsel for the applicant) Ms. Kiefer says yes, they'll stand behind it.

(Pat Hanlon) Mr. Hanlon notes that the transportation study used a slightly different age bracket, and he asks if that will cause any difficulties.

(Stephanie Kiefer) Ms. Kiefer thinks that's okay. She says that age 62+ comes out of fair housing law.

(Shawn O'Rourke, ZBA) Mr. O'Rourke asks what would be involved if the applicant wanted to convert the facility to assisted living.

(Paul Haverty) Mr. Haverty says the applicants would have to come back to the ZBA, and ask the board to approve the change of use.

(Pat Hanlon) Regarding the sections that talk about connecting to water and sewer systems, Mr. Hanlon asks if the decision should specify sanitary sewer.

(John Hession, Civil Engineer, BSC) Mr. Hession says the project will need connections to the water and sanitary sewer systems. There are no connections to the municipal stormwater system proposed.

(Shawn O'Rourke) Mr. O'Rourke asks if section 52 can include information about the number of vehicle trips.

(Stephanie Kiefer) Ms. Kiefer mentions the reports which contain those numbers.

(Kevin Mills, ZBA) Mr. Mills says he can't tell if he needs more information, with all of the different drafts and edits floating around.

(Susan Chapnick, Conservation Commission Chair) Ms. Chapnick says the Conservation Commission hasn't reviewed all of the findings, so she can't say whether they're accurate. She believes there were suggested edits that were omitted from the draft, and she's disturbed by this. She asks how the Conservation Commission should submit comments.

(Paul Haverty) Mr. Haverty says the board cannot accept comments after the hearing closes. So, any comments must be delivered before the public hearing closes on Friday.

(Susan Chapnick) Ms. Chapnick says the Conservation Commission will submit their comments by Friday.

(Pat Hanlon) Mr. Hanlon notes that Brian Rehrig submitted suggested findings of fact regarding open space. He asks if that language was included in the draft.

(Paul Haverty) Mr. Haverty says it's not in the current draft. However, those comments were submitted during the public hearing period, and could be incorporated.

(Roger Dupont, ZBA) Mr. Dupont said he had difficulty lining up all of the changes in the different drafts. He asks if the Conservation Commission could submit their comments as a stand-alone document, rather than marking up one of the drafts.

(Susan Chapnick) Ms. Chapnick is fine with submitting Conservation Commission comments in a separate document.

(Pat Hanlon) Mr. Hanlon asks that others who wish to provide comments submit them as separate documents.

(Shawn O'Rourke) Mr. O'Rourke would like to discuss the finding in paragraph 64. It says the ZBA finds that the conditions won't make the project uneconomic. He asks if we can make this finding without seeing an updated pro-forma.

(Paul Haverty) Mr. Haverty says the applicant hasn't indicated that the conditions will make the project uneconomic. He thinks that's sufficient for the finding.

(Christian Klein) Mr. Klein has a question regarding waiver request 7. He asks if that applies to reviews done under town bylaws.

(Paul Haverty) Mr. Haverty says yes.

(Stephanie Kiefer) Ms. Kiefer says the board has already gotten services from a peer review consultant, pursuant to Chapter 53G. So, she believes the waiver should be granted.

(Susan Chapnick) Ms. Chapnick was under the impression those funds could be used for evaluations during construction. For example, to hire a consultant to verify that compensatory flood storage was provided as shown on the plans.

(Paul Haverty) Mr. Haverty believes such review funds could be used for that purpose.

(?) Someone asks if Waiver #9 is due to the need to comply with state and federal regulations.

(Stephanie Kiefer) Ms. Kiefer is asking for local stormwater review to be waived, because the applicants will have to obtain permits from both MassDEP and the EPA.

(Paul Haverty) If the waiver is just procedural, then Mr. Haverty thinks it should be denied as unnecessary.

(Pat Hanlon) Mr. Hanlon notes that several parts of the permit govern stormwater management.

(John Hession) Mr. Hession summarizes what's in Title V Article 15. He says it's really a process waiver.

The board continues the discussion of waiver requests.

Waiver 18. The applicant no longer requires a waiver for FAR. They're complying with the 0.8 FAR limit in the Planned Unit Development district.

Waiver 20 involves a 10% usable open space requirement. The applicants would like to have this waived, because they're donating a conservation parcel of approximately 12 acres.

Waiver 21 would allow signs as shown on the plans. The independent living facility would have a ground sign, a canopy sign, and several directional signs. The applicants would like to use standard road signs for directional signs, which happen to be a little larger than the one square foot limit in our bylaw.

(Pat Hanlon) Mr. Hanlon asks if there are conditions on the signs, and whether the signs are shown on the plans.

(John Hession) Mr. Hession says that Sheet C-103, Layout and Materials Plan, shows the proposed signage.

Next, we move on to conditions.

(Steve Revilak, ZBA) Mr. Revilak believes that the "Potential Conservation Parcel" should be listed among the plan sheets. The sheet has a title and a date, but not a number.

(Pat Hanlon) Regarding local preference, Mr. Hanlon would like to adopt the language we used for 1165R Mass Ave. Which is to say, we'd be rejecting the imposition of local preferences.

(Stephanie Kiefer) Ms. Kiefer is okay with this. She notes that requests for local preferences are just requests.

(Christian Klein) Mr. Klein asks about survival rate requirements for plantings.

(Susan Chapnick) Ms. Chapnick says the Conservation Commission typically imposes a requirement of 100% survival for the first three years, and then 80% at the end of the third year. The idea is that failed plantings have to be replaced during the first three years, and there needs to be 80% survival at the end of the three-year period.

(Steve Revilak) Mr. Revilak noticed a requirement that all plantings be native non-cultivars. There was a considerable amount of discussion about a similar requirement in another 40B decision. Mr. Revilak asks if this language is okay.

(Susan Chapnick) Ms. Chapnick says the Conservation Commission suggested edits there.

There's a discussion about whether some conditions in Section C should be moved to Section I.

(Pat Hanlon) Mr. Hanlon feels the board should eliminate duplicative language, and find an appropriate section for each condition.

(Susan Chapnick) Ms. Chapnick would like to see submission of a planting plan as one of the conditions for approval.

(Christian Klein) Mr. Klein points out that the applicants have submitted a planting plan for the development parcel (sheet L-101).

(Susan Chapnick) Ms. Chapnick would like to have planting plans for areas that are being restored, and the compensatory flood storage areas.

(Pat Hanlon) Mr. Hanlon recalls an earlier hearing, where a member of the public suggested the applicants put in a convenient store. He asks if the applicants would be interested in considering this.

(Stephanie Kiefer) Ms. Kiefer says they'll take that point, but that decision will likely be left to the operator. Such a condition might require a waiver change. Depending on the operator's decision, they could come back to the board and ask for permission.

(Pat Hanlon) Mr. Hanlon asks about conditions that would unbundle parking fees from rent, and the struck condition that asks for a review of the parking fee schedule.

(Stephanie Kiefer) Ms. Kiefer says that condition was from the 172 unit proposal. The current project will have 84 garage spaces, which is much reduced from the earlier iteration. She asks what board concerns would warrant review of the fee structure.

(Pat Hanlon) Mr. Hanlon says he's really asking why someone proposed to strike that section.

(Kelly Lynema, Planning Department) Ms. Lynema says that transportation demand management (TDM) usually involves monitoring parking demand and unbundling parking from rent.

There's a discussion about TDM. Ms. Kiefer refers the board to VAI's memo dated 9/3, and Mr. Thornton's email dated 10/1.

The board notes that the conditions in F.11 don't match the signage posted on Lake Street.

(Stephanie Kiefer) In condition G.2, Ms. Kiefer suggests adding "or as required by the state building code".

(Kevin Mills) Mr. Mills asks why there was a suggestion to strike G.8.

(Stephanie Kiefer) Ms. Kiefer says the prior proposal had a much larger garage. She suggested striking this condition because it's now a smaller project, and because of the change to senior housing.

(Kevin Mills) Mr. Mills asks about security systems for the garage.

(Gwen Noyes, Architect) Ms. Noyes says the garage will have a security system, but it won't necessarily be a key-card system.

(Christian Klein) Mr. Klein addresses the four storm drains at the corner of Littlejohn St. and Dorothy Rd. Mr. Hession's memo suggests the town look at their flow capacity, and perhaps use the construction as an opportunity to perform maintenance or improvements. The town has a stormwater easement across part of the property.

(Kelly Lynema) Ms. Lynema says she'll need to have the engineering department review Mr. Hession's memo.

(Christian Klein) Mr. Klein notes that the town's stormwater system is not directly related to this 40B project.

(John Hession) Mr. Hession says the intersection of Littlejohn St. and Dorothy Rd. is a low point. But, there are storm drains along Littlejohn St. which are part of that system.

(Stephanie Kiefer) Ms. Kiefer wishes to comment on some of the conditions in Section F. She largely concurs with BETA's suggestions. Again, she refers the board to VAI's memo dated 9/3 and Mr. Thornton's email of 10/1. She says this isn't a transit oriented development. She also offers to provide some wordsmithing, to tie the conditions to specific plan sheets.

The chair opens the hearing to public comment.

(John Yurewicz) Mr. Yurewicz says he was in Belmont yesterday, and there were 42 contractor vehicles parked along the roadway. He says people have been fighting development on this site for decades, and they've been successful. He hears the the board has three options, and if we deny the permit then the Housing Appeals Committee will approve. Doesn't the town have a leg to stand on? He asks the ZBA to shoot the project down.

(Steve Moore) Mr. Moore refers to BSC's stormwater memo, which was one of the documents delivered this week. He asks if that will become part of the official documentation, and whether it's binding on the applicant.

(John Hession) Mr. Hession says the memo is a reflection of the design. Those features are included in the plans and stormwater report.

(Brid Coogan) Ms. Coogan says she had the sewer people come out to her house on Edith St, and they've told her that it's a combined system, with both stormwater and sewage. She understands the project is connecting to the municipal sewage system, but it seems like that's also the stormwater system. She asks if they'll have 6" pipes leading to a 4" main.

(John Hession) Mr. Hession says he can't speak to Edith Street specifically. He says there are two sewer lines along Dorothy Road, and that DPW has asked them to connect to a dedicated sanitary sewer line there. He believes the town has separated stormwater and sewer systems, and that the sanitary sewer line they're connecting to is a 12" main.

(Christian Klein) Mr. Klein says he'd have to check with DPW, regarding the sewer line flow on Edith Street. He wasn't aware that the town had any combined stormwater/sewer systems.

(Matthew McKinnon) Mr. McKinnon says that flooding is a concern. Heavy rain turns Littlejohn St. into a raging river. Neighborhood traffic is extremely light, and 400 additional trips/day is an egregious increase in traffic. There was no traffic counting done inside the neighborhood. Lake Street traffic backs up. Cars taking left turns are a hazard to cyclists. It can take minutes to get to Lake street. People exiting the site will worsen traffic backups. Does it make sense to put a business into a residential neighborhood? It's really scared some of us. Consider whether the small streets can handle the traffic.

(Christian Klein) Mr. Klein asks if the 400 trips in the traffic impact report is 400 round trips or 400 one-way trips.

(Derek Roach, Transportation Engineer, VAI) Mr. Roach says it's 400 one-way trips, or 200 round trips. They've estimated peak hour increases of 30 trips exiting and 19 entering. For Margaret St, it will be 31 entering and 31 exiting during the peak.

(Christian Klein) Mr. Klein asks about the number of additional trips.

(Missed Mr. Roach's answer)

(Stephanie Kiefer) Ms. Kiefer notes that the traffic projections don't take the proposed traffic controls into account. Scheduling deliveries outside of peak hours, for example. She says that independent living isn't really a business; it's a residential use.

(Matt McKinnon) Mr. McKinnon asks how the times of Amazon deliveries will be controlled. He wasn't aware that one could control their delivery times.

(Stephanie Kiefer) Ms. Kiefer says that food vendor deliveries can be controlled; Amazon would be more difficult. She says the jitney service can be used to consolidate grocery runs.

(Matt McKinnon) Mr. McKinnon says there's cut through traffic when Lake Street is backed up. Traffic cuts through the neighborhood to try and jump around the backup on Lake Street.

(Jennifer Watson) Ms. Watson says there's no worse place to develop than this site. Costs will be borne by neighbors. It will costs neighbors hundreds of thousands of dollars in home values. She asks why the Housing Appeals Committee (HAC) would approve the project if the ZBA denied it.

(Paul Haverty) Mr. Haverty says the odds of sustaining a denial in front of the HAC are long, and that the vast majority of ZBA denials are overturned. The statue is designed to encourage the creation of affordable housing. A decision that denies the permit might not be in the best interest of abutters.

(Christian Klein) Mr. Klein points out that the applicants can go back to an earlier version of their design if the ZBA denies their permit.

(Jennifer Watson) Ms. Watson doesn't think people are taking the threat seriously. Some people already have two sump pumps. If this is approved, the new buildings will be elevated and we won't be.

(Christian Klein) Mr. Klein says that the buildings are elevated in response to Cambridge's report on climate change vulnerabilities. He doesn't see this development changing any of the flooding in the neighborhood.

(Pat Hanlon) Mr. Hanlon says there's an area where the applicants are making an improvement, by providing 2:1 compensatory flood storage. Much of the concerns have to do with local flooding, which is caused by an inadequate stormwater system.

(Bill Fuchs) Mr. Fuchs wishes to comment on several of the conditions. He believes that I.11 needs a timeline for mediation and reporting. I.17 seems to assume that nitrogen fertilizer will be used, but there are other kinds of fertilizers that might be advantageous. I.18 doesn't permit the use of herbicides, but without them it may be hard for new plantings to be successful. He suggests that herbicides be allowed with approval.

(Marty Nover, BETA (peer review consultants)) Ms. Nover says that the Conservation Commissions suggested edits that address many of the points that Mr. Fuchs raised.

(Bill Fuchs) For I.24, Mr. Fuchs suggests a separate condition for invasive control. It usually takes five years, plus continued maintenance. Three years is likely not long enough. I.25, I.34, and I.35 seem to prohibit invasive species control; Mr. Fuchs suggests that invasive species should be exempted from these sections.

(Marci Ide) Ms. Ide doesn't know where to start. She's never seen such a hostile 40B. This is one of the last undeveloped parcels in the area. Residents are not being heard. This project is not affordable, only 25% of the units are. Someone will be profiting from it. It should be 100% affordable units. Sneaking something like this in with a 40B is disturbing. This is impacting many people. The project is still 75% market rate. There are "Do Not Enter" signs on Lake Street because residents have been asking for them for years. There was a significant concern about cut-through traffic on Mary Street. Dorothy Road is quiet. The traffic studies were done during a pandemic. The building is way too big, especially with the townhouses in front. She hopes people can use common sense about what to do. There hasn't been enough time to review all of the documents, and public comment should be extended. There are so many questions, and some people have just found out about this project.

(Christian Klein) Mr. Klein asks who sets the affordability requirements for 40B projects.

(Paul Haverty) Mr. Haverty says the requirements are set by the subsidizing agency, and state regulations prohibit a board from imposing requirements beyond what DHCD requires.

(Nicholas Ide) Mr. Ide says there have been a lot of changes and the whole thing feels rushed. The documents in the agenda have many changes, and he believes some key details are missing or outdated. He'd like to talk about traffic and flooding. He says that none of the traffic studies looked within the bounds of this neighborhood, and believes the increase in traffic will be significant. He says it's not clear what the baseline traffic counts include. The Housing Appeals Committee won't understand our neighborhood. The map on page 125 is not up to date and not accurate. The flood plain data is probably out of date. He's not sure how decisions can be made based on outdated data. He thinks the HAC won't see the actual impacts in the actual neighborhood. He fears that no one at the state will listen to us about the size and scope of this project. A large building doesn't belong here. Please extend the comment period.

(Heather Keith Lucas) Ms. Keith Lucas wants to talk about traffic. She feels that an additional 412 trips/day be like rush hour all day long. She asks if the board can impose additional conditions, which might not be in the current draft decision. For example, no driven piles.

(Christian Klein) Mr. Klein says the board can adjust conditions, right up until the time they vote.

(Pat Hanlon) Mr. Hanlon says the board can, and ought to change findings and add data, based on what's in the record. The board is free to exercise judgment on facts of record, but we can't receive any new facts once the public comment period ends. He says this is just a draft, and the board is free to tear it up and start all over again.

(Heather Keith Lucas) Ms. Keith Lucas asks if the decision is the only document used if an appeal case goes forward.

(Paul Haverty) Mr. Haverty says the decision would be appealed, but it's not likely to be the only document used in the appeals process. New evidence can be established during court hearings.

(Heather Keith Lucas) Ms. Keith Lucas feels that some descriptions of the neighborhood aren't accurate. She asks the board to please include accurate descriptions of the neighborhood. She's disappointed at how quickly everything is moving.

(Christian Klein) Mr. Klein believes there is a condition that prohibits the use of driven piles.

(Erin Freeburger) Ms. Freeburger is curious about the impact of tree removal, and whether there's been an inventory of plants and wildlife. She thinks this is important because of the sponge effect of trees. We need to know the impact of tree removal. The larger concern is that we're being exposed to an irreversible decision, and we don't have sufficient information about it. Finally, we've engaged the neighborhood. Ms. Freeburger says she wants to represent neighbors who couldn't be here tonight but are also concerned.

(Robert DiBiase) Mr. DiBiase says he has a Nest camera. There's been no traffic study done at the point of entry to the property. He says his Nest camera picks up 40 vehicles per day. This will be the end of this cul de sac of a neighborhood. This will be a large development, and I'm a direct abutter. All the data hasn't been fully digested.

(Helene Martel) Ms. Martel says she's got two sump pumps that run continuously. Did anyone go over to the entrance of where this monstrosity will go? After last week's rain, it was a lake. It's a flood plain. Ms. Martel says she's lived here for 24 years. When her child was young, she said that the area was already developed, as a habitat for wild animals. This will be out of scale traffic, flooding, and environmental destruction. Closing the public comment period tonight would be travesty.

(Steve Moore) Mr. Moore says the outcome of these proceedings are limited. The decision is changing a lot at the last minute. It's not possible to deny the Mugar their right to try to develop their property; that's the right of the current owners. The abutters probably don't have the right to request that it remain undeveloped forever. If the ZBA votes this down, all of the conditions go away. It's pretty clear that the state would sustain an appeal. That's the reality of the situation. What we have here, while imperfect, is better than having no conditions at all.

(Matt McKinnon) Mr. McKinnon says that when explaining the project to people, he also explains the Mugar family and their philanthropy. He hopes the Mugars are listening. He wouldn't want their name to be a stain on our town.

There are no further comments from the public.

(Christian Klein) Mr. Klein asks members of the board if they have enough information to close the public hearing tonight.

(Steve Revilak) Mr. Revilak would like to see the hearing stay open until Friday. He'd like to get comments from the Conservation Commission, and anyone else who wishes to submit them.

(Pat Hanlon) Mr. Hanlon agrees. Before we started deliberating, we'll need a consolidated final draft. He thinks people should have time to review a consolidated draft. If possible, he'd like two more weeks to clean things up and get the draft into shape.

(Shawn O'Rourke) Mr. O'Rourke thinks the board needs time to get a single draft in place, so people can comment on it.

(Kevin Mills) Mr. Mills agrees. He thinks we owe the neighborhood a consolidated document.

(Christian Klein) Mr. Klein says the applicants have let us know that they're interested in closing the process. But he believes the process would benefit from having the time to clean up the decision so that people can really understand it. He asks the applicants if they'd be willing to extend the public comment period by two weeks.

(Stephanie Kiefer) Ms. Kiefer understands the board's concerns. There isn't any new information that needs to come in for the project. She appreciates that the board is taking their job seriously. She's concerned about extending for two weeks, but suggests the applicants might be amenable to a shorter extension. The project is what the project is, and we've improved upon what it was five years ago. It's designed to address climate change, and we've committed to preserving 12 acres of the site in perpetuity. She asks if the board can consolidate the draft decision by October 12th.

(I had to stop taking notes for a little while, in order to give my hand a break. At this point, we've been going for over four hours.)

There's discussion about whether to extend the public comment period, and for how long, and if it might be possible for the board to render a decision less than 40 days after the hearing closes.

There's a motion to extend the public hearing until October 21st. Passes, 7--0.

There's a motion to continue the public hearing to October 20th at 7:30 pm. Passes, 7--0.

The board's goal is to render a decision by November 23rd.

Upcoming dates

Upcoming dates for the board are:

  • Oct 12. Regular meeting, with five hearings.
  • Oct 20. Continuation for Thorndike Place
  • Oct 26. Regular meeting, with two hearings.
  • Oct 28. Begin deliberations on the Thorndike Place decision.

Meeting adjourned.