ZBA invokes Safe Harbor for 20 Elm St. 40B

Published August 29, 2019

By MAUREEN DOHERTY

NORTH READING — The meeting lasted less than 20 minutes, but it was impactful.

Last Thursday, at its second public hearing on the 200-unit Ch. 40B proposal by NY Ventures at 20 Elm St., the Zoning Board of Appeals (ZBA) voted unanimously to invoke a “safe harbor” provision allowed under Ch. 40B which states if 1.5% or more of the town’s land area is allotted to subsidized housing under a formula devised by the state called GLAM (General Land Area Minimum), then safe harbor can be claimed, Town Planner Danielle McKnight explained during her presentation to the ZBA.

The percentage of the town’s subsidized housing inventory (SHI) acres under the GLAM formula revealed at the meeting is 1.56.

Timing is everything on this application on many fronts.

To start with, an accurate GLAM number could not be determined until the town received a calculation from the state on the number of confidential DDS sites maintained in town and the total number of acres covered by those units to protect the privacy of the people who live in these residential group homes.

The day prior to the hearing, based on its own knowledge of SHI sites and group home locations, the town had pegged the GLAM percentage to be 0.79. But at 4 p.m. on the day of the hearing, the state came through with its figures after expediting the town’s request and provided two figures: 49 confidential units occupying 59.14 acres of land.

This additional acreage bumped up the town’s total SHI eligible acres to 91.721 and the percentage from 0.79 to 1.56.

And, since safe harbor must be invoked by a community within 15 days of the first Ch. 40B public hearing held on the application, the ZBA had to take immediate action at its 6:45 p.m. hearing to meet the Friday, August 23 deadline. The town, with assistance from Town Counsel, submitted the required paperwork to the state, the applicant’s attorney and the town administrator by both certified mail and hand-delivery to preserve its rights in this process, and sent an additional notification to Nick Yebba of NY Ventures via email.

Voting to invoke safe harbor were ZBA Acting Chairman James Demetri, member Jennifer Platt and associate member Matt DeAngelo. The board also voted to proceed with the “full local hearing, with the board having the right to deny the application or to grant the application with conditions, and with the applicant having no right of appeal to the (state) Housing Appeals Committee from the board’s decision.”

In other words, if the town’s calculations are upheld by DHCD, safe harbor would put local control back in the town’s court.

By continuing the public hearing process to November, after any appeal period on the safe harbor matter would have lapsed, the board preserves the public hearing timeline which requires the ZBA close the public hearing within 180 days and issue a written decision within 40 days of closing the hearing.

Speaking on behalf of his client, NY Ventures, attorney Ted Regnante urged the ZBA not to invoke safe harbor at this stage in consideration of the fact that the state’s figures revising the SHI number had not been known less than three hours prior to the hearing. He offered to extend the public hearing for about a month to give both sides an opportunity to review this new information in a less formal way, and a less expensive way, than the appeal process to the state.

But Demetri was not convinced that accepting Regnante’s offer would preserve the town’s rights and protections under safe harbor. Regnante said a similar situation arose during a recent 40B public hearing process he went through in Reading and the state allowed the suspension of time. Those in the audience opposed to 20 Elm St. project shouted down this suggestion. Demetri asked them to not speak out of turn and maintained his position that the ZBA did not have any information from the state informing them that letting the 15-day period lapse with the permission of the applicant would preserve the town’s rights under safe harbor.

In its written safe harbor notification to NY Ventures and DHCD, the ZBA states that in addition to the figures released August 22 by the DHCD that put the town’s inventory at 1.56% it is the board’s position that it is “likely” additional SHI-certifiable group home sites exist in town. Furthermore, the ZBA also wants the state to consider the 42 units that exist in the town’s two mobile home parks, all of which are protected under the town’s Mobile Home Rent Control Board. If so, the town maintains that it can demonstrate its current SHI eligible housing list exceeds 10% under the Ch. 40B provisions, as opposed to being 20 units under 10% (9.61%), which would provide the town with a second safe harbor protection.

“Additionally, it should be noted that the town’s calculations are preliminary and were designed to be as conservative as possible, both as to total land area and affordable land area,” the ZBA notification stated, adding that the town reserves its rights to present “additional evidence, testimony, argument, analysis, exhibits, calculations and any and all other information of any kind to support a finding regarding the one and one-half percent minimum land area requirement.”