by Frank Schroth
The Milton Board of Appeals voted yesterday to send a letter to DHCD that will provide evidence in support of the town’s claim that 1.5% of its acreage has affordable housing. Kathleen O’Donnell, an attorney representing the town, and Bill Clark, Town Planner, presented the materials to the board which consisted of a map and inventory of affordable units.
Ms. O’Donnell said evidence submitted supported the town’s claim that two statuatory requirements had been met.One is the amount of town acreage containing SHI units (SHI = subsidized housing inventory). The second was demonstrated progress the town made with regard to its housing production plan.
Town Planner Bill Clark working with Alan Bishop, the DPW’s GIS expert, calculate the town acreage with SHI housing to be ~93 acres. The 1.5 % requirement of Milton’s total acreage (3,555) is ~53 acres (Note: the acreage does not include such parcels and land as state highways and state owned land). O’Donnell stated the inventory of acreage exceeds state minimum. Attorneys for H&W, the developer, disagreed with the manner in which the calculation was arrived at. They did their own calculation which resulted in ~46 acres.
They also took issue with the claim of progress on the housing production plan. O’Donnell said progress had been made with recent inclusion of units from Fuller Village. The opposing attorneys challenged that arguing that units could not be applied to housing production plan until they were certified by DHCD (Dept of Housing and Community Development). They cited a variety of regulations It also became apparent that the regulations have changed over time. There was not clear agreement on how the calculation should be derived and how that calculation met existing law.
This was all a bit much for the BoA. Chair Leonard, as did member Jeff Mullen, acknowledged that this area of law was not their area of expertise. They heard what was said but Leonard did not want to get into a protracted evidentiary hearing on the two arguments being made. He did not believe either party would be well served. Mullen said “I don’t think we have enough evidence [but] . . . the town has met the burden of proof [and I] feel confident the letter should be submitted.” Member Virgina King agreed as did Chair Leonard. Leonard said the submission of the letter by the BoA did not represent an endorsement of either parties position concluding that the matter could be “handled with dispatch by skilled administrators.” The letter will be submitted no later than Monday.
Leonard also brought up the issue of peer review. The board will request a peer review of the applicant’s engineering and traffic studies. However, Leonard noted that he did not want to request they do that before a ruling arrived from DHCD in event that the ruling made a peer review moot and possible waste of funds. The developer did not share the concern and expressed interest in keeping the process moving. Leonard agreed to forward on recommendations of firms to perform a peer review. The hearing is scheduled to resume on January 22 at 7:30 at a location to be determined.
While it is hard to blame town officials for pursuing all available avenues, it is distressing to observe how Milton is being influenced by attorney Jon Witten. He has made the 1.5% land area calculation his new tactic, arguing the same point about the Weiss Farm 40B proposal in the town of Stoneham. DHCD has ruled against him on the Stoneham case and Witten has appealed the decision.
A quote from a May article in the Stoneham Independent – “…Solomon and Jonathan Witten, a Chapter 40B lawyer, insinuated that failure to compromise now could result in the town employing a stalling strategy to block the project from breaking ground.”
Let the stalling begin. Let’s hope that if Milton loses its argument in front of DHCD, Witten does not prevail in convincing the town to appeal and further delay this process (and further increase his billable hours). If we are below the 1.5% land area calculation, the developer deserves the right to move this project forward and add 90 units to the town’s affordable housing inventory.
There seems to be a least a couple of issues here, that need to be discussed.
1 Attorney Witten , I think, represents an abutter to the developer and not the Town per se as he does for StonehamThe Town has hired their own attorney to advise on 40 B s . Con incidentally she agrees, after study, with Mr. Witten
2 if DCHD agrees with the Town and Mr. Written that they have met the 1.5 % threshold , the project is not killed . The rules just change.
3 I don t see why this developer or any developer , ” deserves” to have their project approved and sanctioned unless it is a good project. It should be good for the developer , the tenants and the Town before it moves forward ,
Helping the Town meet the 10% affordable housing hurdle is important but does not merit favorable consideration action by itself.
The developer must show that this a good project to get the go ahead.
Their first proposal did not a good one, and not sure if this is any better, ( their traffic analysis is curious )but time will tell.
It. Would be helpful if the developer, as Ned Corcoran did with the Pious X development at town meeting, show a cost ( town services needed/ required ) and benefit ( taxes) analysis. Affordable housing can be shown as a benefit but should not be shown in isolation.
To confirm, you are correct regarding Mr. Witten. He is representing the Lombardis, an abutter to the property.