Friday, August 24, 2007
Town rethinks 40B process
In the hope of smoothing the process and preventing future law suits and legal bills, on August 14 former and present members of the Zoning Board of Appeals (ZBA) met with the Selectmen to map out an improved method for managing 40B applications. The 40B state law allows a developer to circumvent local zoning in order to build affordable housing in towns with an insufficient amount. Carlisle's first large 40B development, Coventry Woods, was approved this year, but only after delays and disagreements resulting in significant legal expense. In addition, three currently unresolved law suits have been brought against the Town.
Cindy Nock and Steve Hinton have since left the ZBA but returned for this review, and ZBA chair Ed Rolfe and Administrative Coordinator Elizabeth Barnett also gave perspectives.
Barnett suggested that "a rigorous, rational set of requirements and requests" should be part of the 40B application. She noted that by laying out the process up front, Carlisle could maintain better control and avoid surprises. Also, most developers are willing to work with towns if they know in advance what the costs are, but when requests are added along the way, "it appears arbitrary."
Application checklist planned
She had surveyed several nearby towns and collected all the requirements and restrictions they include in their 40B applications. This process uncovered possible gaps in Carlisle's. For example, many towns specify that attorneys' fees are assumed by the developer. Aerial plans, elevation and other documents may be required. Some ask for a certain architectural style. The issue of monitoring profitability is often included. The impact on infrastructure, such as traffic and schools, may be set forth, as well as the cost of maintenance. While Carlisle's rules and regs may require some of these, there is currently no process for assuring everything is in place before the application goes forward.
"If we said right in the beginning, 'This is what our expectations are,' most of what we ask for would not seem unreasonable," said Hinton. "Complaints arise when we change the rules in the middle of the game." He suggested that, in addition to a review of the rules and regulations, a checklist of expectations should be developed. Before formal hearings are scheduled, a 40B applicant could sit down with Town Hall staff or board members and go over the checklist to ensure the submission packet is complete.
Nock said one of the past problems was the wasted time and loss of adherence to rules and regulations as negotiations dragged on. "We were trying to find something we could support while going through the hearings." She suggested a deadline after which, if there was no agreement, hearings would be suspended. Doug Stevenson questioned if a developer would agree to this, given the possibility of costly delay, but Hinton noted that such pressure could have forced an agreement that would have shortened the process. Rolfe said suspension would only be appropriate if density or buffers were at issue.
Hinton noted an informal advisory board formed in the middle of the Coventry Woods 40B process proved very useful in expediting inter-board decisions, and suggested this continue. He said an advisory board could also take up nuts and bolts issues and "hammer out what we don't need to talk about in a public hearing" so that hearings could make more progress on the important points. He added, "Public input is a good thing, but there can be too much at the early stages."
Other questions arose as to the management of escrow accounts and just which expenses can legally be passed on to a developer. Barnett agreed to investigate these and also to find out what the rules are regarding the town's suspending negotiations that are not making progress.
40B working group created
Selectman and acting chair John Williams suggested moving ahead with a working group to propose additions to rules and regulations and develop a checklist to be delivered to an applicant before the 40B process starts. It was decided to form the working group from those in the room with later review by interested boards. That group met for the first time on Wednesday, August 22. They hope to conclude their work by the end of November as there may be another new 40B application coming forward soon.
ZBA needs volunteers
The ZBA is now in need of four new people, two members and two associates. Anyone interested should contact Madonna McKenzie at Town Hall.
© 2007 The