If a developer wants to build a Chapter 40B project that includes both commercial and affordable housing components, can a single comprehensive permit allow the entire project? The question will be considered this fall by the state’s Supreme Judicial Court. Until the court makes a ruling, applying 40B regulations to a mixed-use project like the “Village at Harvard,” proposed for the former site of Toreku Tractor on Ayer Road, will remain in a legal gray area.
However, according to members of Harvard’s Planning Board and Zoning Board of Appeals, this unsettled legal issue will not halt the project nor distract town boards from addressing tangible issues, such as the septic system and water supply. Moreover, the developer is on the record with a backup plan where the commercial portion would be either redesigned to standard zoning or eliminated to make the project residential only. The developer, Massachusetts Housing Opportunities Corporation (MHOC), has stated a preference for the current plan, which was designed with retail-commercial space at the Harvard Housing Partnership’s request.
Opponents of the project, however, view the legal case as potential grounds for an abutter’s appeal to any comprehensive permit that the ZBA might grant to MHOC.
“If I were an abutter, I’d be interested,” said Quarry Lane resident Keith Cheveralls at last week’s ZBA hearing. Cheveralls, who regularly attends hearings on the proposed development, said he is not seeking to oppose the project, but to ensure that the process is fair to the town, and especially to abutters.
“The process really needs to be well-defined, or Harvard won’t get the kind of mixed-use development it wants on Ayer Road,” he said. Cheveralls is also a member of the Shaker Hills 40B Ad Hoc Committee, formed to study a proposal for a Chapter 40B development at the present Shaker Hills golf course.
The case that the Supreme Judicial Court will deliberate is Warren Jepson & another v. Zoning Board of Appeals of the Town of Ipswich & another. The court’s amicus announcement states, “The issues presented, among others, are whether G.L. Chapter 40B authorizes a zoning board of appeals, when issuing a comprehensive permit, to override zoning requirements for a commercial use within an affordable housing project; whether an abutting homeowner and an abutting housing authority have standing to challenge the issuance of the permit.”
Last week’s ZBA hearing was lightly attended, with the developer and direct abutters absent. However, all members of the ZBA were there to consider the Ayer Road project, which proposes 24 market-rate residential units, 8 state-defined affordable units, and 8,000 square feet of commercial space.
The Zoning Board of Appeals asked the Planning Board to conduct a site plan review of the commercial portion of the proposed development, and also directed its own consultant, Nitsch Engineering of Boston, to review it. To date, Nitsch has reviewed only the residential part of the land. Nitsch Engineering’s Sandra Brok, referring to the legal ambiguity of the comprehensive permit and the commercial portion of the development, remarked, “It’s important to review that commercial component, but this is a big legal issue; it’s a big concern.”
According to Town Counsel Mark Lanza, the developer’s attorney “reluctantly conceded to go to the Planning Board for site plan approval.” Previously, MHOC had insisted that the Planning Board need not formally review the plans, asserting that a single comprehensive permit from the ZBA would suffice and agreeing to “proceed at its own risk.”
“Although we are granting a dimensional setback waiver, the law is unsettled as to whether the variance is required. So the applicant builds at his own risk,” said Lanza.
Planning Board Chairwoman Mary Essary confirmed the site plan review, but said that the ZBA was still in charge of issuing the permit. Her board was anxious, she said, to have its due input on such a large project.
The zoning board devoted much of the hearing to the potential for failure or contamination of the development’s well. According to a March 30 report by Brock of Nitsch Engineering, the site is “tight,” with little extra land to dig another well should the first run dry or be contaminated. ZBA member Robert Capobianco noted with concern that the septic system is “upstream” from the well. “Who takes the burden if this fails or is contaminated—residents or the town?” he asked.
“Residents,” responded Lanza, adding that it was an “unfair burden” to require the developer to provide a backup well in case of failure or contamination. It is up to the seller of the residential units, he said, whether to tell buyers that the septic system is upstream from the well, but he added that a homeowners’ association could, in its literature, spell out a buyer’s responsibility for repair if septic or well failed. “I would want the applicant’s consent for that,” Lanza said.
The Board of Health sent the ZBA notice of its concerns, too, requesting that it be “the granting authority for waivers [to the developer] instead of the ZBA.” ZBA Chairman Chris Tracey, though, said that the state’s Chapter 40B law requires the ZBA to grant the permits. In another letter, Ira Grossman, sanitarian for the Nashoba Associated Boards of Health, cautioned that many of the 32 proposed condominiums will have lofts and walk-out basements, which people sometimes convert into separate housing units, thereby creating the potential to overload the septic system. The ZBA discussed deed restrictions to prevent such conversions.
Debate over the project’s financial review started when Tracey explained the developer’s absence. “MHOC said they wouldn’t come if [ZBA financial consultant] Ed Marchant wasn’t coming.” Marchant did not attend because he needed “more input from the applicant” for his review. The problem, said Tracey, was that dollar amounts varied from report to report. From the audience, Cheveralls read from state guidelines, which state that financial evaluation of the entire project, or pro forma review, should wait until all peer reviews are complete. But Harvard’s consultants have not reviewed the commercial part of the site, and neither the Board of Health nor the Conservation Commission have submitted final reviews. Still, the zoning board voted to proceed and to direct Marchant to base his report on an April 16 document from the developer.
