Town Meeting OK’s funding for 40B appeal

Published October 10, 2019

By MAUREEN DOHERTY

NORTH READING — It was a rare sight. Nearly a full house packed the Daniel H. Shay Performing Arts Center participate in October Town Meeting Monday night.

The official tally of voters, according to Town Clerk Barbara Stats, was 547. Checking in that many voters took an additional 50 minutes, delaying the start of the semi-annual affair to 7:50 p.m.

The main attraction was the request under Article 7 to amend the FY20 Operating Budget with a transfer of $125,000 from Free Cash to fund Town Counsel legal and professional expenses to enable the town to defend itself during the Ch. 40B comprehensive permit application currently before the town’s Zoning Board of Appeals (ZBA).

The issue concerns the proposed 200-unit apartment complex at 20 Elm St. by NY Ventures which, if approved as proposed, would add 50 units to the town’s subsidized housing inventory (SHI). All 200 units would count toward the SHI because they would be rental units rather than ownership units, and 25% would be rented at below market rates.

Last Friday afternoon, the town learned that the ZBA’s “safe harbor” declaration was rejected by the state Department of Housing and Community Development (DHCD). If granted safe harbor the town would not be required to entertain a project that did not meet local zoning regulations, such as the 20 Elm St. proposal by NY Ventures, if at least 10% of the town’s housing stock was subsidized or 1.5% of the town’s land area was occupied by housing deemed “affordable” by the state.

If the ZBA chooses to pursue this matter further, the next step in the process would be filing an appeal to be heard before the state’s Housing Appeals Committee (HAC). To do so the ZBA would need access to funds for the professional and legal resources necessary to defend its position.

At the outset of the meeting, under Article 1 which allows reports of committees and boards to be heard, Town Administrator Michael P. Gilleberto read a prepared statement expressing the town’s disappointment with the initial rejection of the town’s safe harbor declaration while stating that the rejection was “not unexpected and is consistent with every other determination DHCD has made denying a community’s assertion of safe harbor based on the General Land Area Minimum,” he said.

Gilleberto further stated: “North Reading has had a proud history of working with developers in the interest of siting affordable housing in the right spot, with the right density, in the right buildings. We have not turned our back on those in need, and we look forward to the opportunity for the Zoning Board of Appeals to potentially present this fact on a full record, if it so chooses, to the state Housing Appeals Committee – and if necessary, beyond.”

He explained that in order to respect the DHCD process he would not be making additional comments about the matter.

Later in the meeting, before the discussion on Article 7 began, Town Moderator John Murphy forewarned all parties that a discussion would not be allowed on the merits of the project. “This is about the funding of town counsel expenses,” Murphy said.

Select Board member Stephen O’Leary, who was presenting the article on behalf of the board, agreed that the “merits and specifics of the project itself” would not be discussed.

Upon seeing such a large crowd, he thanked everyone for attending the meeting. “This is refreshing. It is nice to see so many people willing to participate. This is where your voices are heard; this is where the money is raised and appropriated and spent,” he said.

O’Leary reviewed the timeline that began when NY Ventures filed its comprehensive permit in July 10, officially starting a 180-day cycle in the permitting process. Once the ZBA declared safe harbor Aug. 22 and notified the developer of this decision, O’Leary said they had the option to accept it or appeal it, and NY Ventures chose to appeal it to DHCD. Concurrently, the ZBA also continued the comprehensive permit public hearing to Thursday, Nov. 14 at 7 p.m. at the high school.

Back in June, when the town had approved its operating budget for FY20 this comprehensive permit application had not been filed yet, O’Leary said. But now that it has reached this point, the ZBA has a decision to make at its meeting on Thursday, Oct. 10 at 7 p.m. in the Performing Arts Center on whether to appeal the DHCD denial to the Housing Appeals Committee (HAC). Without these funds the ZBA would not be able to pursue an appeal. If the appeal is pursued, O’Leary said a new set of deadlines would also come in to play. Both the Select Board and the Finance Committee recommended pursuing the appeal.

In response to a question posed by Wendy Emerson, 100 Lowell Road, O’Leary said if the town was successful in its appeal the town would not be compelled to accept a comprehensive permit application and could then implement its Affordable Housing Production Plan (HPP) which had been developed collaboratively among several town departments and with the help of a consultant paid for  with a state grant. The town’s HPP was approved by the state in August 2018, but “before the ink was dry” on it the 20 Elm Street plan was filed.

“The state doesn’t recognize the fact that we have a plan in place and they are not allowing us to execute it,” O’Leary said, adding, “It’s not as though North Reading hasn’t done its fair share… In the past 20 years we haven’t turned down one (comprehensive permit). We have approved every single one.”

Janet Nicosia, 2 Poplar Terrace, asked what could be allowed on this property under current zoning. O’Leary said nine single family houses could be built on this property by right.

“This is $125,000 on an operating budget, which means that it is to be expended during FY2020 and you are talking about a process that could take up to two years. Is $125,000 only to carry us for legal expenses until June 30 and do you expect to come back for more?” Nicosia asked.

Initially, O’Leary said the $125,000 would get the town through what needs to be done right now and if there was a balance at the end of the fiscal year it would be “turned back into Free Cash.” He added that at June Town Meeting they’d be requesting the funds they’d anticipate needing beyond June 30, 2020.

Nicosia asked if there was an estimate on the total cost of that two-year process because the town is also being asked to vote on the legal fees for the high school appeal (under a different warrant article) which have exceeded “over $1 million so far. How much do we think this will cost the taxpayers?”

After consulting with other town officials O’Leary clarified his prior statement and said the $125,000 would “take us through June 30 and then it would be evaluated on a fiscal year by fiscal year basis.”

Donald Putney of 20 Riverside Drive moved the question which was unanimously passed on a voice vote.

The vote on the main motion to approve the $125,000 was nearly unanimous on a voice vote but a couple of voters said “no” therefore it “carried.” But the end result prompted the audience to break out in a burst of applause.

O’Leary urged the voters to stick around for other articles on the warrant, cautioning that a vote for reconsideration could come up later in the meeting if they left.

Vote for reconsideration

Following a quick vote to pass over Article 8, since the town did not have a need to rescind any authorizations to borrow, Ed McGrath of 8 Lowell Road made a motion to reconsider Article 7 while the hall was still packed with voters.

This was initially met with groans until Murphy explained the meaning behind a motion to reconsider: “If you vote yes, it comes back on the floor; if you vote no, it does not come back to the floor and it cannot come back the rest of the night… so what I heard was you want to vote no because that kills it. It means it passed and it cannot come up again.”

On the voice vote, one person voted yes and the rest of the hall voted no, eliminating any chance for Article 7 to be reconsidered.