A North Andover-based developer has fought off a challenge from the Harvard Zoning Board of Appeals and will be able to build its 15 Littleton Road project according to plans that the ZBA had opposed. In a February decision, the state’s Housing Appeals Committee allowed the developer, Massachusetts Housing Opportunities Corp. (MHOC), to change two conditions that the Harvard ZBA had attached to the comprehensive permit—a permit it had granted to MHOC in Sept. 2007.
MHOC plans to build three affordable and nine market-rate condominiums at 15 Littleton Road. When construction begins, the house that now occupies the property will be razed to make way for the units. On Tuesday, MHOC president Gerard Welch said he hoped to show the ZBA final plans for the condominiums “in the next couple of months.” Construction, he said, might begin soon thereafter, though he said the schedule would depend on the housing market.
“The market is in the doldrums,” he said, “but I think Harvard might be isolated from [the housing market’s] dire conditions.”
History of the hearings
During six months of evidentiary hearings on the 40B project, the ZBA had consistently objected to what it believed were health and safety flaws in the project’s backup septic system and the long common drive. The driveway’s problem was a lack of turnaround space at the end. Larger vehicles, including delivery and moving trucks, known for their significant “blind spots,” would need to exit by backing out onto busy Littleton Road. The board was worried not only about traffic accidents, but also about residents at the condominiums.
“I’m concerned some kid will get into the blind spot. It’s not acceptable to me,” remarked ZBA member Robert Capobianco at an August 2007 meeting.
The backup septic system proposed for the 12-acre site was also flawed, the ZBA had contended. The proposed backup consisted of expansion trenches for the leach field—trenches that would be closer together than is normally allowed by Harvard’s health regulations. During the course of the hearings, ZBA member Ted Maxant said that his experience showed that expansion trenches were a meager substitute for a full-blown backup system. But the site lacked sufficient acreage for that, unless a unit or two were eliminated. Trenches would surely fail, he said at the time.
Based on its reservations, the ZBA ultimately granted MHOC the comprehensive permit, but with conditions that would improve both the backup system and the driveway. The ZBA and MHOC signed off on the conditions in September 2007, and MHOC received its comprehensive permit.
Trouble came after the permit appeal period ended, when MHOC said the driveway and septic conditions were just too expensive. It petitioned the ZBA, asking for the conditions to be, in effect, eliminated. According to a Dec. 14 affidavit sworn by the developer’s financial analyst, Michael H. Jacobs, compliance with the original conditions would incur a $500,000 loss for MHOC. State regulations say that zoning boards cannot impose conditions that would render a 40B project “economically infeasible.” They also allow 40B developers to ask for changes to specific special conditions after the appeal period for the permit itself has elapsed.
Speaking with the Press on Tuesday, ZBA Chairman Chris Tracey said he was disappointed but not surprised at the outcome.
“We knew we didn’t have a chance but we did what we had to do,” he said, noting that the Appeals Committee rarely rules in favor of zoning boards.
Tracey says he finds it “notable” that MHOC did not seek changes for the permit during the appeal period for the comprehensive permit, but instead invoked its state-conferred right to ask the ZBA for “insubstantial changes” after the fact. He wondered whether regulations were skewed in favor of 40B applicants, noting that abutters were not allowed the same standard as applicants.
“If abutters miss the standard period for appealing a comprehensive permit, they have no recourse, but the applicant does [have recourse]. That seems unfair.”
