Friday, March 9, 2007
ZBA accepts April 27 deadline for
Abutters ask to reduce plan to 24 units
After hours of sometimes surprising debate at their March 1 meeting, the Carlisle Zoning Board of Appeals (ZBA) signed an agreement to issue a decision by April 27 on the Comprehensive Permit for the proposed 41-unit Coventry Woods 40B development off Concord Street. The date chosen was proposed by the applicant, Mark O'Hagan, who offered in exchange for the ZBA deadline to withdraw his January 29 claim to the state's Housing Appeals Committee (HAC) that the public hearing "was closed."
Submitted under the state's Chapter 40B comprehensive permit statute, the Coventry Woods project is allowed to exceed local housing density restrictions for the 22.6-acre site as long as at least 25% of the units qualify as affordable housing. The Coventry Woods plan includes 29 market-rate and 12 affordable housing units.
For months the board has wrestled with questions of how the project will affect the local aquifer (see "ZBA presses for septic analysis at Coventry Woods," Mosquito, March 2.) Normally, the 40B permit process assumes that the applicant provides the local board with data prior to the board's decision. In this case, the applicant has offered to provide some but not all the data requested, citing the time and expense involved, and the ZBA has been weighing how to respond. Follow-up data might be required as one of the conditions of the permit, to be provided to the Board of Health (BOH) in coming months. However, both Martha Bedrosian and Jeff Brem of the BOH urged the ZBA to require testing and analysis be submitted prior to issuing a permit. They worry that once the current plan is permitted, then it will be harder to redesign it substantially later, if post-permit testing turns up problems.
Hydrogeologist names more tests
The largest septic system component, system C, is to be located within 150 feet of the well next door on the Epstein/Stone property. Hydrogeology expert Jim Vernon of ENSOR, an environmental consulting firm headquartered in Westford, was invited by the ZBA to give advice on the scope of the hydrology data analysis. Vernon suggested several areas of additional investigation. Analysis had been proposed to predict the following: how system C will affect the height of the surrounding water table, whether the water table on abutting property will be raised as a result, damaging those septic systems and whether pollutants will flow from septic system C into nearby wells. Vernon's recommendations for how to accomplish this analysis ranged in cost from $10,000 to $50,000 depending on the level of detail and confidence sought. Suggestions included: measuring the direction of groundwater flow, studying the permeability of the upper layers of the soil, and doing a study to learn how abutters' wells would respond to an injection of water into the ground, simulating the effects of the septic system.
ZBA attorney Art Krieger described an offer from O'Hagan to supply some of the information discussed by the board on February 16. The applicant was willing to submit hydrologeologic analysis, but based on existing test pits rather than deeper test wells as requested. A nitrogen analysis might be provided. However, he was not willing to provide virus and bacteria transport analysis because there is no standard accepted level other than zero.
Many voiced the opinion that while it was the applicant's responsibility to demonstrate the safety of septic system C, requests for additional data from him were not likely to meet with success.
What next? Brem thought the town should do the additional testing and require reimbursement from O'Hagan as one of the conditions of the permit, Krieger advised against that idea. ZBA member Ed Rolfe opted for requiring post-permit testing. Bedrosian asked the ZBA to close the hearing and deny the permit for lack of adequate information. Krieger stressed the unpredictability of the response by HAC if O'Hagan appealed Carlisle's decision.
Shrink to fit?
Abutter and Planning Board member Michael Epstein believed the problematic septic system C could be eliminated by simply reducing the number of housing units in the development.
Epstein's attorney, Jon Witten surprised many at the meeting by asking the ZBA to issue a permit conditioned to scale the project down to 24 housing units. He gave the board a 48-page suggested draft decision based on this restriction, as well as documentation to support the claim that the developer would still make a reasonable profit.
Estimating the profits
A one-page "pro forma" tallied estimated expenses and revenues leading to an 18% profit for 24 units. By law, a 40B developer is allowed up to a 20% profit. Any amount over that, if found afterwards, would be returned as a windfall to the town. Planning Board Chair David Freedman pointed out that it would be too late for the abuttors if it was found after the fact that the developer had made an excess profit. Expenses and revenues in Witten's pro forma differed from those cited in O'Hagan's application materials. In particular, Witten used a lower site acquisition cost of $1.5 million, based on the value of the property with a traditional, low-density development. O'Hagan listed a purchase price of $2,850,000. The BOS later voted on March 6 to commission a professional appraisal of the property.
Witten predicted the 18 market-rate units could be sold for $650,000 each, and the six affordable units for $185,000. ZBA attorney Dan Hill asked for evidence to support the $650,000 sales price, and Rolfe noted that the Rocky Point/Laurel Hollow condominium units recently sold for over $700,000. (Rocky Point prices ranged from $712,500 to $785,000 for market-rate units. The two affordable units both sold at a price of $165,000.)
Cindy Nock, ZBA Chair for 40B permits, later questioned the validity of Witten's pro forma. She noted that it was not based on any concrete construction design of the applicant's. While O'Hagan had submitted preliminary specifications for the housing early in the application process when the plan called for a 56-unit age-restricted development, he has not provided any detailed drawings since the age restriction had been dropped and the plan revised to 41 units.
What are the town's priorities?
Reducing the project size would mean the creation of fewer units of affordable housing. The dozen units provided under the current plan would meet Carlisle's annual production goal and thereby qualify the town for a one-year moratorium from "unfriendly" 40Bs. Is it worth giving that up? Selectman John Williams said, "The primary goal, the most important goal is to protect the health and safety of the citizens of Carlisle. A far lesser goal is the affordable units."
Town Meeting in 2006 authorized $200,000 for an agreement with O'Hagan to increase the number of affordable units from 10 to 12, but Board of Selectmen Chair Doug Stevenson said there was nothing in that vote binding the town to support that particular plan. As nothing has been built, no money has been paid under that agreement. Stevenson urged the ZBA to concentrate on protecting health and safety, rather than worrying about maximizing the number of affordable units, "Nothing should be traded away to get that moratorium."
Williams said that Coventry Woods, at 41-units, did not mesh with the goals of the town's affordable housing plan, that calls for smaller developments scattered throughout the town. Later, Nock noted that the development was included in the town's plan, and to forego these units of affordable housing would be disheartening. Freedman addressed this in a memo he circulated later. He helped draft Carlisle's affordable housing plan, and said that Coventry Woods was mentioned only as part of the state's requirement that all existing and potential affordable housing sites be mapped. Freedman stressed, "Coventry was not included as a proposed project for any year of the plan."
The public hearing was left open, to allow additional information and public comments. ZBA counsel agreed to combine their draft conditions along with revisions that have been submitted by town officials and the newly proposed conditions submitted by Witten. The goal is to circulate the combined working document to town boards by March 9 for review prior to the continuation of the ZBA hearing on March 14.
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