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With potential project on the horizon, Shirley ZBA gets 40B tutorial


SHIRLEY – With a major 40B development on the horizon that could add 100 new residents or more to the town census and significantly impact a quiet hilltop neighborhood, members of the Zoning Board of Appeals got a crash course Monday night in how to handle it, if and when the application, now under review by Mass Housing, lands in their laps.

Town Counsel Carolyn Murray, of KP Law did the honors, paging through a Power Point presentation, underscoring key issues and fielding questions from the board and a small audience that included potential project abutters.

The presentation, which lasted about an hour and a half, was concise, comprehensive and in some ways an eye opener for a board that hadn’t dealt with a 40B application before.

Under the state law known as 40B, developers who designate 25 percent of their units as affordable can bypass local zoning laws when forwarding proposals that would otherwise be vetted via the typical permit pipeline, density in particular.

Although every town board submitted comments and concerns to Mass Housing on the proposed project – a 52 unit townhouse condo development slated for a 10-acre site off Benjamin Road – the ZBA is the only town board that will get a first-hand crack at addressing some of those concerns.

Murray told the board what it could and could not do, steps they could take to address some issues and/or mitigate others and the best way to get there from here. For starters, it might be wise, when scheduling the public hearings after the application comes in, to settle on a schedule of topics and take them up one by one, so the board can take a linear path through the process and the public knows what to expect.

That way, she said, the board wouldn’t be faced with juggling the complexities that might follow with other, more general business on its agenda. That night, for example, a public hearing on a more standard matter was scheduled right after the attorney’s presentation, which she wrapped up quickly to accommodate. The 40B proposal, however, might take more time, she said, so it’s best to be prepared.

The 40B project proposal is currently being reviewed by the Massachusetts Housing Finance Agency, a quasi-government group authorized by the state housing authority.

The review process takes 90 days. Assuming Mass Housing gives the developer – Dennis Page, of Middlesex Holdings – a green light with an official letter — the comprehensive permit application should show up in a couple of months, at which time the ZBA has 30 days to schedule a public hearing.

The decision is due no more than 40 days after the hearing closes and must then be filed with the town clerk within 14 days.

The board’s decision will include any waivers the developer asks for, “perhaps dozens of them” according to the attorney, and whether to issue a comprehensive permit for the project.

If they deny the application or any of the waivers, the developer can appeal, Murray told the board, and based on her experience, she said the developer usually succeeds.

She cautioned that if they do deny a variance request, to be as certain as can be that the denial is based on a “real” issue that will hold up on appeal, such as public health and safety.

Although in some instances, other objections may be considered. If, for example, the size and/or structure of the buildings as proposed are too far out of proportion with the surrounding neighborhood.

Surprisingly, the state considers open space to be a valid objection, she said. A project that proposes to build structures too close to allow its residents some recreation area could be sent back to the drawing board, for example.

Basically, however, the ZBA must grant the permit if there are no valid reasons not to, she said. That is, if, overall, the project doesn’t clash with state laws. Which doesn’t mean they can’t negotiate changes with the developer, or try to, she said.

Chairman Chip Guercio asked if, when it comes to issuing the permit, safety departments such as fire and police can weigh in and whether the building inspector gets a say.

The answer to both questions was yes. Although this is a one-stop process, building codes must still be met, she said. And safety can’t be compromised. If, for example, the fire chief said the access road was too narrow for a truck to turn around or the cluster was such that people couldn’t get out of a one-way street quickly in an emergency, the developer would need to make changes accordingly.

On the things they can’t do side, Murray reminded the board that filing fees must reasonable, too.

That is in real terms, not the developers’ objections, necessarily, meaning fees must be consistent with amounts the town charges for conventional, non-40B projects.

Noting that she had mentioned hiring consultants, say to assess traffic and storm water issues, Guercio asked Murray whether the developer or the town would be responsible for that cost.

The developer, definitely, Murray answered, but he would not hire the consultants directly. Instead, the ZBA would seek out someone, such as a civil engineer, to conduct a “peer review” of some aspect of the project, and direct the developer to deposit money in an escrow account to pay for it. “Don’t be afraid to ask,” she said. It’s common practice and the developer isn’t likely to object.