Corrected and updated February 10, 2017
The Municipal Affordable Housing Trust’s controversial request to the Planning Board for changes to town bylaws to create a zoning change specifically for the historic Poor Farm property is now on hold. At the Planning Board’s Monday night meeting, member Michelle Catalina reported that Town Counsel Mark Lanza had told her that because the proposed bylaw changes do not contain an affordable housing component, they might be considered “spot zoning” and not stand up to legal challenge.
The trust purchased the 28-acre Poor Farm property at 166 Littleton Road in August 2013 for $1.1 million for the purpose of creating affordable housing. In October 2014, the trust selected a developer for the project, but faced with neighborhood opposition, the plan fell through, and in December 2014 the trust voted to sell the property. In June 2015, a private developer expressed interest in the property, but the purchase and sale agreement with the developer was terminated and the property was back on the market by December 2015. Last month the trust requested that the Planning Board consider an update to the town’s clustered housing bylaw that would apply only to the Poor Farm parcel.
Bylaw could be challenged
At this week’s Planning Board meeting, Catalina cited a 2014 decision by the Massachusetts Land Court in a case concerning a zoning change in the town of Swampscott. The town had changed its bylaws so it could rezone a town-owned parcel and sell it to a developer who intended to create a high-density housing area. Neighbors challenged the bylaw changes, contending that they amounted to spot zoning. The judge agreed with the homeowners, deemed the rezoning invalid, and declared the bylaw changes stricken from the zoning law. To avoid a similar legal challenge, according to Town Planner Bill Scanlan, Harvard would have to prove that the bylaw changes promoted public health, public safety, and public welfare and weren’t undertaken merely to raise the value of the property to developers.
Lanza reviewed the case and expressed the opinion that, provided the overlay district included an affordable housing component, it would be in keeping with other such districts that have been approved by the Massachusetts attorney general. He advised in an email to board members that the outcome would depend on the “language and provisions” of the bylaw amendment.
Planning Board members agreed that changes to the proposal that include an affordable housing component could not be made ready in time for the upcoming April 1 Annual Town Meeting. They unanimously voted to defer the proposed changes to a later date.
During the meeting, Planning Board members expressed frustration that not enough is known about the potential of the Poor Farm parcel to accommodate clustered units. They directed Scanlan to find funds for a feasibility study that would include septic percolation testing on areas of the property not included in previous tests commissioned by the trust.
Abutters make no comments
Three residents from the neighborhood most directly affected by the proposed change were present but left the meeting without comment. In the meantime, the town will continue to carry the cost of the Poor Farm mortgage, and the Poor Farm parcel remains subject to a potential Chapter 40B action. Chapter 40B refers to Massachusetts Comprehensive Permit Act, which allows developers building affordable housing units to override municipal zoning bylaws. The purpose of the law is to encourage the creation of affordable housing in Massachusetts.
Editor’s note: This article has been corrected and updated. In the original article, comments attributed to Town Counsel Mark Lanza were reported incorrectly. The article stated that Lanza had cited the Swampscott case to Planning Board member Michelle Catalina as a recent decision of concern in the effort to create an overlay district for 166 Littletoon Road. In fact, it was Catalina who brought the case to the attention of Lanza.
