Concerns.... Chapter 40B & the 1.5% Standard
On December 18, 2014, the City announced it had reached and surpassed the 1.5% Land Area Minimum Standard for compliance with the requirements of the State’s Chapter 40B law, with 1.88% of Newton’s developable land dedicated to subsidized affordable housing. That evening, the City delivered a letter and supporting documentation to 40B developer Dinosaur Rowe LLC, and cc’d the State’s Department of Community and Housing Development (DCHD) asserting that the City had met the 1.5% threshold.
On the same evening, Newton’s Zoning Board of Appeals (ZBA) invoked the 1.5% threshold in a hearing on Dinosaur Rowe LLC’s proposal for a 135-unit 40B luxury housing project on Rowe Street. Neighbors had expressed deep opposition to the massive size, density and impacts of the proposed development. The ZBA Chairwoman advised the developer to return to the ZBA with a greatly scaled-down proposal, and continued the public hearing to February 12, 2015.
On December 29, 2014, Dinosaur wrote to the DCHD, challenging Newton’s assertion of the 1.5% standard on two technical grounds – that the City hadn’t provided enough documentation to Dinosaur on December 18, and that the City hadn’t asserted the 1.5% standard before Dinosaur made its application for a 40B permit on November 5, 2014 (whether or not the City had met the 1.5% standard by that date). In subsequent letters to the DHCD on January 8 and January 12 of this year, Dinosaur repeated those claims, and also claimed that the City’s calculations of the land comprising the 1.5% were incorrect. On January 14, 2015, Newton's Law Department sent a letter to the DHCD refuting all of Dinosaur's claims.
On January 23, 2015, DHCD Associate Director Leverett Wing wrote to the ZBA, asserting that the City had not provided sufficiently detailed documentation listing all the land parcels that factored into its calculation of the 1.5% threshold, and finding for Dinosaur on that technicality. The DHCD letter also specified that the ZBA hearing on the project would be “stayed” until the conclusion of any appeal. The City Solicitor Donnalynn Kahn, has been quoted in the media as saying that the City believed it had sent the documentation that was required by the regulations, and would appeal the DHCD’s decision.
People who are familiar with the DHCD are not surprised, as the DHCD finds for the developer in the majority of cases. The DHCD-controlled Housing Appeals Committee (HAC) also typically decides cases in favor of the developer. This matter will be most likely be resolved in the courts, after the DHCD is finished reviewing it. Some have estimated it could take up to two years for the 1.5% threshold invocation to be resolved. As Dinosaur continues to fight against the 1.5% and for its 135-unit proposal, other developers may adopt a wait-and-see approach. A 40B proposal for Goddard Street seems stalled, with the developer awaiting the outcome of the Rowe Street 40B case.
If, as seems likely, the 1.5% issue will play out in the courts, developers may find that trying to use the 40B route to build more than what is allowed under Newton’s zoning ordinance involves more risk and uncertainty than they wish to assume. Since the City is on record as confident that Newton has met and surpassed its obligations under Chapter 40B to provide subsidized affordable housing to those in the region eligible to obtain it, removing the grip of 40B over Newton allows our community to address the housing affordability needs of seniors and others in Newton who are asking for assistance. To better understand why the 1.5% invocation is so important for Newton, this column from the Newton TAB might be useful.
On the same evening, Newton’s Zoning Board of Appeals (ZBA) invoked the 1.5% threshold in a hearing on Dinosaur Rowe LLC’s proposal for a 135-unit 40B luxury housing project on Rowe Street. Neighbors had expressed deep opposition to the massive size, density and impacts of the proposed development. The ZBA Chairwoman advised the developer to return to the ZBA with a greatly scaled-down proposal, and continued the public hearing to February 12, 2015.
On December 29, 2014, Dinosaur wrote to the DCHD, challenging Newton’s assertion of the 1.5% standard on two technical grounds – that the City hadn’t provided enough documentation to Dinosaur on December 18, and that the City hadn’t asserted the 1.5% standard before Dinosaur made its application for a 40B permit on November 5, 2014 (whether or not the City had met the 1.5% standard by that date). In subsequent letters to the DHCD on January 8 and January 12 of this year, Dinosaur repeated those claims, and also claimed that the City’s calculations of the land comprising the 1.5% were incorrect. On January 14, 2015, Newton's Law Department sent a letter to the DHCD refuting all of Dinosaur's claims.
On January 23, 2015, DHCD Associate Director Leverett Wing wrote to the ZBA, asserting that the City had not provided sufficiently detailed documentation listing all the land parcels that factored into its calculation of the 1.5% threshold, and finding for Dinosaur on that technicality. The DHCD letter also specified that the ZBA hearing on the project would be “stayed” until the conclusion of any appeal. The City Solicitor Donnalynn Kahn, has been quoted in the media as saying that the City believed it had sent the documentation that was required by the regulations, and would appeal the DHCD’s decision.
People who are familiar with the DHCD are not surprised, as the DHCD finds for the developer in the majority of cases. The DHCD-controlled Housing Appeals Committee (HAC) also typically decides cases in favor of the developer. This matter will be most likely be resolved in the courts, after the DHCD is finished reviewing it. Some have estimated it could take up to two years for the 1.5% threshold invocation to be resolved. As Dinosaur continues to fight against the 1.5% and for its 135-unit proposal, other developers may adopt a wait-and-see approach. A 40B proposal for Goddard Street seems stalled, with the developer awaiting the outcome of the Rowe Street 40B case.
If, as seems likely, the 1.5% issue will play out in the courts, developers may find that trying to use the 40B route to build more than what is allowed under Newton’s zoning ordinance involves more risk and uncertainty than they wish to assume. Since the City is on record as confident that Newton has met and surpassed its obligations under Chapter 40B to provide subsidized affordable housing to those in the region eligible to obtain it, removing the grip of 40B over Newton allows our community to address the housing affordability needs of seniors and others in Newton who are asking for assistance. To better understand why the 1.5% invocation is so important for Newton, this column from the Newton TAB might be useful.