The Carlisle Mosquito Online

Friday, November 12, 2004


State pressures BOA on Maple Street 40B

"We've got a gun to our heads," said Board of Appeals (BOA) member Hal Sauer, commenting on the 40B application in front of the board. Carlisle Woods, a proposed development that has come before the board multiple times is before, is back. This time the state is putting pressure on the town to come to a decision by January 13, a mere three months away. At their meeting on November 4, the BOA again confronted the application proposed by Massapoag Real Estate Development which calls for the development of 4.37 land-locked acres off Maple Street with no frontage in Carlisle. The access road opens into Billerica.

A long history

This parcel has had a long history in Carlisle, but because of its total lack of frontage in the town, it was never developable, not conforming to the town's zoning requirements. However, the affordable housing law, known as 40B, allows developers to bypass local requirements and allows development to occur, provided one quarter of the units are affordable. On August 5, the Carlisle BOA dismissed the application, as the initial letter of approval from the Mass. Housing Authority was based on erroneous information, provided by the applicants, on the location of the lot's boundaries. Board member Terry Herndon reminded the attorneys, James Harrington and Son, who were representing the developer, "You were off by 40 feet the first time." The applicants appealed to the state, as they said they would.

Three months to decide

With the Massachusetts Housing Authority telling the town that they were "sympathetic to the applicant," the BOA has little time and seemingly little power to stop this 40B from proceeding. Herndon commented, "Less than three months. Thank you, State of Massachusetts." This is a particularly complex development, as the builder must obtain approvals from both Carlisle and Billerica. Much to everyone's amazement, Billerica was not given the same three-month timetable that Carlisle is forced to work under.

The edict from the state to decide within three months is the town's only option. "We asked for six months but that was denied," Chair Cindy Nock told the audience. "This is our only opportunity to have input on this plan. The state can approve, with or without our input. The only way to say no to these developments is to have a plan to get to 10% of our housing affordable. [Carlisle does not yet have a formal development plan.] We can also say no to the plan if there is a safety hazard."

"A 40B isn't much fun," said Herndon. "We tried to set it aside, but they remanded it back." Planning board member Ray Bahr commented from the audience, "I find it hard to believe you have a three-month time frame, with no recourse."

Herndon asked Associate Town Counsel Rich Hucksam, "When the housing board makes these decisions, and towns challenge them, how does the town fare?" The attorney said, "The courts will only hold for the town if there is an egregious error in a point of law."

The Harringtons told the board that they have recently sent Ross Associates, an engineering firm the town has hired to review plans, the new survey which locates the parcel accurately. They also asked the board's permission to send new site plans to the engineering firm for review.

The board asked the attorneys if they were going to pay for the town's lawyer's fees in regard to this project, which had been an outstanding issue back in August. Harrington told the board, "It would be foolish to pay for legal fees for town counsel to deny our project." Later the developer's lawyers were asked if they would agree to pay the fees for a consultant, Ralph Wilmer, a 40B specialist from the law firm of McGregor and Associates, who has been asked by the board to review the economics of the project, "the pro forma," in determining whether the profit of this project is no more than 20% of the developer's costs. Harrington replied, "We wouldn't agree to pay for review of pro formaIt would have to be an extremely low dollar amount for us to pay for anythingThe board goes above and beyond what they should be reviewing."

Coordinating with Billerica

Billerica must approve development as access is from that town, and there was discussion on how to coordinate between the boards of the two towns. If Billerica does not decide within our time frame, "we could condition our decision based on Billerica's [decision]," said board member Shann Kerner.

The board asked the Harringtons if they could immediately provide 12 additional copies of the new plans, so that the board could give them immediately to the local town committees and officials who would be able to provide input to the committees such as the Planning Board, Selectmen, fire chief, police chief. The Harringtons told the board that they could, but reminded the board that, "We have already received input from the police, fire chief, etc." Board members seemed to question this assertion by their quizzical expressions.

The board will continue the Carlisle Woods application on November 18.

2004 The Carlisle Mosquito