Affordable Housing Plan Previews: Zoning Board Prepares For Comprehensive Permit Hearings

CHATHAM – Plans for affordable housing at 1533 Main St., the former Buckley property, will get their first airing before town boards over the next two weeks.

 Officials from Pennrose, the company chosen to build the project as well as a second affordable housing development on Meetinghouse Road, will preview plans for the planning board, historical commission, select board, affordable housing trust board and historic business district commission. According to town officials, the sessions will be an opportunity for members of boards and the public to provide feedback on the initial plans before they are finalized.

 Once that happens, Pennrose will apply to the zoning board of appeals under the Chapter 40B state statute, which groups all local bylaws under a single comprehensive permit reviewed by the ZBA. Last week, zoning board members received a primer on their responsibilities and duties under Chapter 40B from Town Counsel Jay Talerman. 

 Meetings on the Buckley property plans began Monday with the community housing partnership and will continue next week with four sessions: Dec. 16 at 6 p.m. with the planning board; Dec. 17 at 10:30 a.m. with the historical commission and at 5:30 p.m. with the select board and affordable housing trust board; and Dec. 18 at 3:30 p.m. with the historic business district commission. All meetings will be held at the annex and will be streamed live on the town’s website; the public can participate live or via a link available on the meeting agenda posted on the town’s website.

 Pennrose, a national company that focuses on building and operating affordable rental housing, was chosen to develop the Buckley and Meetinghouse Road properties, both purchased by the town to help ease the region’s housing crunch. Preliminary plans call for 48 rental units at the Buckley property in West Chatham and 42 rental units off Meetinghouse Road (Route 132) in South Chatham. On the Buckley land, 32 of the 48 units will be rented to people making below the area median income (AMI), with 16 units reserved for those making up to 110 percent of AMI.

 While the developer will present its initial plans at the upcoming sessions, many of the details — including the number of units, architectural styles and road layouts — can be subject to negotiations during the comprehensive permit process, Talerman said.

 “A good developer will make concessions to get to a decision in an expedited way,” he said.

 Chapter 40B was first enacted in 1969. One of the original purposes, Talerman said, was to ensure access to housing for returning Vietnam War veterans. The law originally took a “carrot” approach, waiving zoning regulations in exchange for affordable housing.

 “However, this is not how 40B evolved over the next 50-plus years,” he said. Instead, the process now involves “much more of a stick approach,” giving less deference to local zoning boards and more say to developers. It’s not always an easy process for local towns, he added.

 “It has been a particularly difficult statute for towns to deal with,” Talerman said. “It has also been an excellent tool to perhaps get around some zoning, planning, conservation and other local bylaws that could stand in the way of projects.”

 Under the 40B process, the zoning board stands in for other town boards and commissions, reviewing projects under essentially all local bylaws, including conservation, historic and health. Not covered under comprehensive permits are state regulations (including wetlands) and Title 5 septic requirements.

 The statute can be invoked by any developer if a town has not met the state-designated standard of having at least 10 percent of its housing stock affordable. In the case of affordable housing projects like those proposed in Chatham, the 40B process is considered “friendly” since the town is sponsoring the project. It provides a “master permit” review rather than requiring that a developer get separate permits from relevant boards. 

 That’s not to say that the zoning board doesn’t have the ability to shape or even deny a project, although Talerman said denials have seldom been successful when appealed. But having the ability to waive or compromise on local regulations can both help provide relief for a developer and meet the town’s goal of increasing affordable housing.

 In order to apply for a comprehensive permit, a developer must show that it either owns or controls the property in question, has a project subsidy (in this case, Pennrose is financing the project itself and utilizing housing tax credits) and submit a project eligibility letter to the Massachusetts Housing Partnership. It can take four to five months for the state agency to approve the eligibility letter, Talerman said; once OK’d, the approval is valid for two years.

 Pennrose submitted project eligibility letters for both the Buckley and Meetinghouse Road projects in mid-October, according to Housing and Sustainability Director Gloria McPherson. The land disposition agreement between the town and the developer projects comprehensive permit submission to the zoning board in January. She added that Pennrose will likely submit separate 40B applications for each project, with the Buckley property up first.

 Once the comprehensive permit application is submitted, the zoning board has 30 days to open a public hearing and 180 days to issue a decision unless the applicant agrees to an extension. That may seem like a generous timeframe, Talerman noted, but with the ZBA standing in for numerous town boards and reviewing technical matters such as sewage disposal and traffic, “six months goes by pretty quickly.”

 Under the statute, the zoning board can hire consultants to help review the plans with the developer assuming the cost. It sometimes helps to hold individual sessions on specific issues such as wetlands, septic or traffic, Talerman added, and it can be beneficial to allow public comment, especially at the initial hearing.

 “I think it’s a good opportunity to let the public feel involved,” he said. “And you’ll learn a little bit as well about how this is shaping up in terms of impact to that neighborhood.”

 The zoning board can negotiate over issues such as density, unit size and other elements of a development; in fact, Talerman said, state 40B guidelines recommend negotiations.

 “And that’s because there is no limit, no prescribed size or scope or configuration of 40B projects,” he said. “People can come in and do whatever they want, whereas under your local bylaws there are some limitations. It encourages the parties to try to work things out.” That process can sometimes take months, he noted.

 Asked if the ZBA can restrict eligibility to residents or those with ties to the town, Talerman said that was easier to do in the past, and to do so now requires that a community demonstrate to the state Executive Office of Housing and Livable Communities that there is an unmet housing need. Local officials can ask the developer to make the case for local preference to the state agency.

 Because of the technical details involved in the process and the strict timelines, Talerman urged the zoning board to keep hearings tightly focused.

 “Being regimented can really be beneficial,” he said, adding that himself or an associate will be present at all 40B hearings to provide advice and direction if needed.