Friday, April 27, 2007
Coventry Woods hearing closes, ZBA deliberations begin
After nearly two years of testimony from peer review engineers, abutters, attorneys, appraisers and other experts, the Zoning Board of Appeals (ZBA) accepted final words from the public at the April 18 Coventry Woods 40B hearing and subsequently closed the hearing to begin deliberations. Chairperson Cindy Nock thanked everyone, stating that "[Coventry Woods] has tested the patience of everyone, including the applicant. It's our job to come up with a decision with the best interests of the town. We have to think of health and safety. That is paramount."
One of the first decisions reached during the board's deliberations was to request that MassHousing withdraw its backing for the Coventry Woods project due to questions concerning the 22.6-acre development site pricing. Otherwise, the board is considering issuing a permit for fewer housing units than the applicant, Coventry Woods, LLC, has requested.
The ZBA has committed to reach a decision by Friday, April 27, a date set by the applicant and agreed to by the board. Over the past few months, the ZBA and their attorneys have been writing a draft decision that sets forth the conditions under which the applicant can develop the land with respect to the proposed plan and to 40B guidelines and laws. The ZBA deliberations will focus on fine-tuning and specifying points in this draft decision as well as ensuring that appropriate input from the abutters and concerned parties has been incorporated. According to ZBA attorney Art Kreiger, "I think you're all familiar with the issues. My recommendation is to focus on the central issues, density and configuration of the project plus setbacks. Everyone agrees that the ZBA isn't redesigning the plan."
The state's 40B law allows a developer to eliminate most local permitting procedures and file a single comprehensive permit application with the ZBA, if at least 20-25% of the housing created is affordable to those with low and moderate incomes. Carlisle can prohibit 40B developments once the amount of affordable housing stock is increased from the current 2% to the state target of 10%.
As part of his final remarks to the ZBA, Jon Witten, attorney for the abutters, presented an interesting revelation that developed recently on a similar 40B project in Sharon, Mass. According to an April 18 article in the Boston Globe, "State drops support for Sharon project on cost discrepancies," MassHousing reversed its backing for developer Michael Intoccia's Pine Woods condominium project in Sharon after, spokesperson Eric Gedstad is quoted as saying, the agency "[took] at hard look at the numbers." The Globe article states that Intoccia told the state that he planned to spend $10 million for 26 acres of land in Sharon on which he would build 104 condos. A recent appraisal of the property placed the value of the acreage at $2.5 million.
The actual letter from MassHousing to Intoccia states the reason for the rescission of project eligibility — the status granting the developer permission to proceed with a 40B application to a town — as "a new appraisal commissioned by MassHousing resulted in an as-is land value of $2.5 million, one quarter of the original $10 million value shown on the appraisal submitted with the application for site approval. This is such a substantial difference that it calls into question the underlying elements of the proposed development that we relied upon in connection with making the required finding of financial feasibility." Furthermore, MassHousing wrote that they are investigating the circumstances that led to the discrepancy of information.
MassHousing, also called the Massachusetts Housing Financing Agency, promotes the creation of affordable housing by providing low-interest loans to developers and first-time home buyers.
The 40B law limits a developer's profit to at most 20% of project costs. Additionally reported in the Globe article, is that, "Inspector General Gregory W. Sullivan released a report last February in which he accused several 40B developers of skirting the profit cap by concealing revenue and exaggerating costs, especially by inflating land costs."
Coventry Woods land value?
Witten, who also represents abutter Mass Audubon in the Pine Woods proposed 40B project, encouraged the Carlisle board to see the parallel between the Pine Woods and Coventry Woods proposed 40B projects with respect to the difference between the appraised value of the land and the amount purported in the applicant's pro formas, the list of project costs and revenues. Mark O'Hagan, the developer and applicant in the Coventry Woods 40B project, stated a $3 million site acquisition cost in his pro forma. The Board of Selectmen's recent appraisal conducted by Avery Associates states the land is worth $1.6M and its "highest value for the best use of the land" was for a "conservation cluster development with six lots."
ZBA to contact MassHousing
Witten suggested that the ZBA construct a letter to MassHousing, requesting that they withdraw their backing of the Coventry Woods 40B project based on the new precedent created by the Pine Woods 40B. "The circumstances are identical," he said.
ZBA member Ed Rolfe agreed stating, "Let's notify MassHousing and see what happens" and subsequently the board passed a motion to address the land value issue with MassHousing. On April 23, ZBA counsel Anderson and Kreiger, LLP wrote to MassHousing, asking for clarification of the project's "fundability" status, given the land cost questions.
O'Hagan commented that while he disagrees with the new appraisal figures, he was not submitting any supporting documentation at the hearing. "In general, obviously, we disagree with the numbers. We've tried hard to satisfy the board."
ZBA may limit units
The Coventry Woods 40B application hearing began in the summer of 2005 and was initially proposed as a 56-unit , age-restricted subdivision off of Concord Street. Over time, the project morphed into a 41-unit then a 48-unit because of feedback from abutters and town boards. Most recently, O'Hagan formally withdrew the 41-unit plan and submitted a 48-unit, age-restricted plan, which was rejected by the ZBA because they lacked sufficient time to have the plan peer reviewed. Fire Chief David Flannery also rejected the 48-unit plan because of problems with the main access roadway, fire lane requirements, setbacks, and a lack of guest parking.
As of Monday night's deliberations, the ZBA was narrowing the density discussion to require the applicant to "not exceed 30 units."
Water quality concerns have been discussed many, many times over the course of the project, but the words of ZBA member Steve Hinton came as a surprise to those at the April 23 board meeting when he urged they drop the requirement that "the applicant shall repair any damage to any participating abutter's water quality at its own cost." Hinton, who is an environmental engineer and serves on the BOH Water Quality Subcommittee, gave the following reasoning: The large natural fluctuation in the concentrations of various substances in well water make it hard to interpret test results. Hinton did not believe there were state standards for private wells and the substances to be measured can vary as much as 200% in well water under normal testing conditions. It made more sense earlier, Hinton said, for the town to hold the applicant responsible for water quality when it seemed the applicant and abutters were going to formally agree on a quality standard. Without such an agreement, he felt "there should be no water quality standard" imposed by the ZBA.
Other board members were reluctant to change the draft language. With the public hearing over, Hinton was the only water expert present, and Rolf said he would have preferred if this had been brought up with the BOH or project engineering consultants present.
ZBA attorney Art Kreiger tried to bring the group to consensus. Some felt it might be hard to prove that small changes in water quality were caused by the building project, but responsibility would be more certain if there were large changes. Hinton agreed to keeping the condition for water quality restoration, if it is tempered by a clause concerning causality.
Reached after the meeting, Nock also had questions about the water quality testing and said the issue may be revisited before the board issues its final decision.
To finish deliberations, the board scheduled meetings (after press time) for Thursday, April 26, and Friday, April 27, their deadline.
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