Incomplete Town Response to MassHousing on 40B Application Now Leaves the Town at Great Risk

 

The town posted it's response to the Capital Group's 40B application yesterday.  MassHousing allows 30 days after an application is filed for the town to respond -- this response is the towns opportunity to make it's case, and typically a town will state clearly it's opposition to the project, all out deficiencies in the application, and carefully state the town's progress on affordable housing.   The letter that Lancaster sent did none of those things. 

The Response Letter Omits Reference to the Capital Group's appeal regarding their IPOD application in 2020.

There are related applications at the site that appear to allow a denial at this site, and the town should have stated that.

Massachusetts 40B regulations do try to protect communities from applicants who would try to weild 40B as a punishment: they require a "cooling off" period after another application on the same site.  The cool-off period begins after those applications are finally decided, and after any appeals are resolved.

Applicants for 40B eligibility are required to disclose any "Related Applications" in the "Previous Development Efforts" section of the 40B application.

The Capital Group includes in their application that they were denied an "Integrated Planning Overlay District" special permit for this site in 2020. However, they omitted that there is still a pending appeal of that special permit decision: Mass Superior Court Docket 2085CV00306 “702 LLC vs. Town of Lancaster et al” --this ongoing appeal makes should be reviewed as a "related application" that should meet the definition to allow a denial by the Zoning Board of Appeals.

This was raised to the town's attention multiple times, and its omission should raise eyebrows.

The Response Letter Makes Little Effort To Outline the Town's Progress towards Affordable Housing Goals:

The town should have stated plainly our existing progress toward the affordable housing goal.

The state allows 40B projects in communities in which less than 10% of the housing stock is "affordable" by definition.  While Lancaster's current Subsidized Housing Inventory (SHI) is below that threshold, we're presently on a path to exceed it with only the project that have been approved in town. 

None of this was outlined in the town's response:  the letter should have made this clear.

• Lancaster adopted an aggressive Inclusionary Zoning bylaw in 2020.
• Our current SHI inventory is 140 units.  I believe our 2020 census year-round-housing count was 2,788 units; to exceed 10% we would need 280+ units of SHI.
• The mixed-use Harbor Hills Development on Rt 70 was permitted with 2 SHI eligible units in 2020; it's not presently in our inventory -- the documentation is being submitted.  I'm not clear if this is currently included in the SHI inventory. 
• Goodrich Brook Estates is an approved 40B development that is not included in our SHI at this time.   It is still being pursued, and as currently proposed would contribute 109 units of SHI.   
• Jones Crossing is another approved 40B development, presently not included in our SHI.  Our Zoning Board of Appeals last night approved an "insubstantial change" to allow that development to move forward as rental units.   That project would contribute 32 units of SHI.
• With 109 units of SHI from Goodrich Brook Estates, and 32 from Jones Crossing, Lancaster would add 141 units of SHI for a total of 281 units.   

Why would the town not state plainly in the response that the development already on the table in our town, including already approved 40B applications, has us on a track to meet the goal?

The Response Letter Fails to Mention the Capital Group's 40B Issues in Southborough

The town should have drawn attention the Capital Group's history of misusing the 40B program.

This spring a judge in Southborough tossed out another approved Capital Group 40B project; in that case the Capital Group had used the 40B application as an inroad to a large market-rate condo project.

The judge in the case wrote:

“The practical effect of the inclusion of the condo units within the permit results in an end run around the affordable housing statute. . . The legislature likely would not condone the

manipulation of c. 40B so that major developments can bypass local authority under the pretext of affordable housing.” (Judge William J. Ritter, Mass Superior Court Docket 1685CV01359, “20 Property Owners vs. Southborough’s ZBA & Park Central, LLC “)

Why would the town not bring this up in their response?   An entire section of the application is devoted to establishing that the applicant has been a good steward of the 40B application in the past.

Other points of concern in the application:  Why are resident comments not available for review?

Credit to Lancaster: there are many very engaged residents, and the town received 38 comment letters before the 5/13 deadline.  The Town Administrator waved a copy of printed responses, but requests for a copy of that pile have gone unfulfilled.  The response letter states:

They did not.  At the May 23rd meeting, the Select Board briefly reviewed an overview memo drawn up by the town administrator.  It purported to distill many of the points made in comment letters into bullet points -- it actually included rebuttals from the Capital Group on many of the points.  Here's a sample:

The bullet point was a good one!  For the plan submitted in the 40B application, the Capital Group definitely cherry-picked 20 of their 300 acres to invent a parcel.   The land has not been subdivided in the way they show, and is not served by existing roads or services,  but the imaginary parcel includes almost exclusively upland area that avoids any wetland conflicts.  Other areas would be disturbed to service the project, but they're excluded from the calculations used in the application.

The bullet point is subsequently "answered" with language clearly from the Capital Group.  Was the Select Board already familiar with this 40A-busting "land condominium project" concept?  Were they already familiar with the "many projects" the Capital Group has used this concept on?  We'll have to presume, as no questions were asked at the meeting and the Town Administrator has declined to elaborate.

This scenario was repeated a number of times in the memo reviewed by the Select Board on Monday.   The resident comments that were collected must be released for review.

(5/27 Lunchtime Update:  the Town Administrator emailed to let me know that the resident comments would be released in the near future.  She sent me a copy, acknowledging that they are public records, and she and does intend to place a copy with names scrubbed or comments withheld where requested on the website in the near future.)

Why did the Select Board send such a soft and incomplete response?

The Select Board has been operating too closely with this single developer for several years now.  The Capital Group needs this 40B "application for eligibility" to be approved to maintain it's assertion that the town needs to choose between an Enterprise Zone Expansion that would threaten neighborhoods and conservation land, or a 40B development.  

Rather than defend the town's interests in it's response to this 40B application, the town "pulled its punches", omitted disqualifying information, and refused even to firmly request that the state deny this application.

How many towns have sent resident comments to the developer for review and rebuttal before submitting their response to DHCD?   

If this project is now certified for eligibility, it won't be on it's own merits.   The Capital Group will simply owe a debt of gratitude to the town for never opposing the project.    Residents should rightly be concerned about this incomplete response.