Friday, June 12, 2009
Housing Authority asks ZBA to wait on new regulations
A Planning Board subcommittee has been working for some time on new regulations for 40B affordable housing projects. The Zoning Board of Appeals (ZBA) had hoped to approve the changes at a public hearing next Monday, June 15, but at the Board of Selectmen (BOS) meeting on June 9, Housing Authority Chair Alan Lehotsky recommended a delay. He underlined points made in May 28 letters his committee had written to the BOS and ZBA citing inconsistencies with other town regulations and concerns the town could be opening itself to lawsuits. David Freedman, Planning Board Chair, defended his committee’s work and indicated only minor changes are needed to incorporate the recommendations of Town Counsel.
The goals of the Planning Board were to incorporate new state regulations into town regulations, while offering abutter protections and attempting to streamline the process for a developer to obtain a Comprehensive Permit from the ZBA. But the Housing Authority letter noted requirements that would apply to 40B developers and not developers of other types of housing in town. Some differences include the definition of an abutters list, a requirement that a developer submit a narrative of how a project complies with Executive Order 193 “Preservation of State Owned Agricultural Land,” and added fees for stenographic records and a notary public. Additional water testing, visual screening and green practices are also beyond what is included in subdivision regulations, according to the letter.
Lehotsky explained, “The Housing Authority is not opposed to strict regulations” but some contained in the new regulations “approach the level that becomes onerous.” He said the new regulations “could violate [state] regulations that require that we streamline the process.” The barriers for a 40B labeled “unfriendly” could be “fiscally impossible for the small developer,” he added, noting they are “out of line with sensible regulations.” A requirement for 46 copies of the application appears to be in there “just to raise costs.”
He pointed to stronger controls for water use and wells, saying, “I’m in favor of that,” but comments by Town Counsel are indicative more work is needed. “These need a lot more review,” said Lehotsky, with a goal of balancing the need for affordable housing in town and the costs of developing it.
Selectman Doug Stevenson asked if the new regulations would make it easier for the ZBA to deny an application. Lehotsky replied that the issue is making it “more expensive for a developer to file and have a hearing.” He then noted that changing regulations after issuance of the RFP for Benfield could be problematic because, according to Town Counsel, added costs due to the changes would be assumed by the town. “That gives me pause,” said Selectman John Williams.
Freedman said Town Counsel had reviewed the regulations with instructions that they conform to state requirements. The charge that there are extensive legal problems “just isn’t true,” he said, noting Town Counsel made about 12 suggested changes, most minor. He pointed to the long process of working on the regulations, starting in 2007 with the appointment of a 40B Working Group and hiring of a consultant, and wondered how it could have escaped the notice of the Housing Authority or developer that regulatory changes were in the pipeline.
Freedman countered the charge that requested documentation was unneeded work, noting that a 40B is completely different from a subdivision application. “This is information the ZBA needs to have the right to ask for.” Site control is an issue and resolution of agricultural protection funding is necessary before applying for state affordable housing funds. He said that during the Coventry Woods process, decisions were sometimes held up because people did not have copies of needed documentation. “The cost here is time,” he said. “Give the boards the copies they need.”
Freedman also took issue with characterization of the regulations as “tougher.” “These are not designed to be tougher,” he said. “They are more carefully written.”
Stevenson, in introducing the discussion, asked the parties to “work as collaboratively as possible.” He noted the committees’ goals are aligned in two areas: protecting abutters and town residents, and having defensible regulations that will withstand legal challenge. While the BOS can advise, he said, whether to postpone adoption or not “is a decision the ZBA gets to make.” John Williams added, “I am generally favorable toward the strong protections the Planning Board put forth as long as there is flexibility.” He noted the Planning Board has listened to comments and made changes as a result.
“This is not a 40B regulatory hearing” concluded Stevenson, suggesting the proposed regulations be posted on the town website and discussion deferred to the ZBA Hearing on Monday. Steve Pearlman of the Housing Authority suggested that Town Counsel be asked to respond to the Housing Authority concerns, with Lehotsky adding, “Preferably before Monday at 8 p.m.” when the hearing begins. ∆
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