NY Ventures appeals town’s safe harbor defense

Sep 12, 2019 by

Updated September 17, 2019

Published September 12, 2019

By MAUREEN DOHERTY

NORTH READING— To the surprise of no one, NY Ventures has filed an appeal of the town’s claim of “safe harbor” status under the GLAM (General Land Area Minimum) exemption in its comprehensive permit application.

The 21-page objection poking holes in the town’s August 23 claim of safe harbor was filed last Friday, September 6, with the state’s Department of Housing and Community Development (DHCD) by the applicant’s attorneys, Theodore C. Regnante and Jesse D. Schomer of Regnante Sterio LLP.

It is now up to the DHCD to review materials submitted by both the town and the applicant and issue its determination within the next 30 days after which either party may file an appeal with the state’s Housing Appeals Committee (HAC).

Concurrent with its appeal, the town’s Zoning Board of Appeals (ZBA) continued the public hearing on NY Ventures’ application to Thursday, November 14 at 7 p.m. in the Performing Arts Center at NRHS, 189 Park St. in order to stay on track with the statutory requirements of Ch. 40B filings that require public hearings to be closed within 180 days unless an extension of time is granted by the applicant.

The developer is seeking to build a 200-unit apartment complex of five identical 5-story buildings at 20 Elm St., each with four residential levels situated on a podium of ground-level garages on land that was once part of the Thomson Country Club.

Under the state’s Ch. 40B law, the most common measuring stick used to determine if a community must entertain a comprehensive permit application states that at least 10% of its housing stock must be deemed affordable and included on the town’s Subsidized Housing Inventory (SHI).

The town’s inventory falls just below that threshold at 9.61% or 20 units. NY Venture’s proposal adds 50 new affordable units to that total and would subdivide 19 acres of the 24.2-acre parcel. The balance of the site would be occupied by Teresa’s Prime Steakhouse, Grill 19 and its in-ground pool (Resorts North), all part of the Teresa’s Hospitality Group whose principal owner is Nick Yebba.

However, during the first public hearing on Aug. 8, attorney Dan Hill who represents the local opposition group, Defend Ipswich River Communities (DIRC), urged the Zoning Board of Appeals to invoke safe harbor by another method under Chapter 40B — a GLAM calculation — which is a rather complicated formula where the town has to prove that 1.5% of its total land area is devoted to affordable housing. This safe harbor claim must be asserted within 15 days of opening the public hearing..

Initially, the town’s GLAM percentage appeared to be 0.79% but land used for group homes under the state’s DDS had not yet been figured into that calculation because the addresses are kept confidential to protect the privacy of the residents who live in them.

A few hours before the second ZBA hearing on the 14th day the state provided the town with two figures — 49 confidential DDS sites on 59.14 acres of land to bring the town’s total SHI eligible acres to 91.721, according to Town Planner Danielle McKnight. This increased the town’s SHI percentage of acres to 1.54829%, rounded to 1.55%.

The secretive nature of these confidential sites makes it extremely difficult for the town and the applicant to verify its accuracy. The applicant’s 21-page appeal sought to find the holes in the math on a number of the town’s calculations, not just the confidential sites, with both sides interpreting the guidelines issued by the state and the regulations differently.

Regnante Sterio’s appeal states the burden of proof lies with the town to prove its assertion of safe harbor and further states that the town also “failed to comply with the procedural and evidentiary filing requirements of the state’s “Guidelines” and Regulations. It also asserts that the town made “calculation errors” on Total Land Area (reduced by 227.44 acres), Affordable Land Area (reduced by 47.55 to 51.2 acres) and Group Home Acreage (reduced by 44.47 to 48.13 acres) which would reduce the town’s GLAM percentage from 1.55% to between 0.66% and 0.72%. The applicant’s final figures, if proved true, would be below the 0.79% figure the town believed it had prior to being given the confidential DDS figures by the state.

Next steps

The Select Board did not discuss the particulars of the applicant’s objection to the town’s safe harbor claim at Monday night’s meeting. However, the members did express support to recommend a potential warrant article at the upcoming October 7 Town Meeting to adjust the town’s operating budget, approved last April, to include adequate funds to hire the expert consultants needed to enable the town to fight the project.

They directed Town Administrator Michael Gilleberto to identify a dollar amount and the source of the funds to support adequate legal and engineering advice to enable the board to provide a recommendation of the funds needed to pursue this course at Town Meeting to the voters.

The original version of this story incorrectly stated the number of affordable units proposed was 25. Ch. 40B requires 25% of the units to be affordable. If the 200 units proposed are approved this development would add 50 new units of affordable housing to the town’s Subsidized Housing Inventory (SHI).

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