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255WVN #233: Largest 40B, new regs

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  • waylandvoters1
    Mar 3, 2008

      Dear Wayland Voter,

      The latest 40B affordable housing proposal for Wayland is
      causing widespread shock and concern. The largest ever
      presented here, it spurred dozens of residents to attend a recent
      hearing on the 56-apartment building.

      Now there's a new twist. As Molly Upton explains in this
      newsletter, regulations just issued could give towns more
      flexibility in dealing with state requirements and developers'

      Under the 40B law, Massachusetts requires cities and towns to
      add housing at officially designated affordable prices. Though
      few object to the goal, the power given to developers to avoid
      local regulations often causes contention. Local zoning boards
      may have to weigh traffic, safety and environmental effects
      against the possibility of being sued by developers, some of
      whom have been accused of careless operations and making
      profits above those permitted by law.

      A 40B under construction on Old Sudbury Road was in the news
      a few months ago when the developer felled many mature trees
      in violation of agreements, including some on town land.

      The new 40B would occupy the site of the former Kathryn Barton
      nursing home on Commonwealth Road, Route 30. Plans call for
      a building 229 feet wide and 45 feet tall, exceeding local height


      As of Feb. 22 Massachusetts 40B comprehensive permit
      regulations have been revised. For both current and future
      projects, the changes give localities a bit more say and take
      some account of regional progress in affordable housing.

      Under the new rules, developers may find it more difficult to get
      as many local regulations waived as in the past. Localities retain
      authority concerning health and public safety, and more
      consideration can be given to stricter local codes.

      For projects filed after Feb. 22, the regulations reduce the
      number of units that need to be produced by a municipality each
      calendar year to qualify for a year's hiatus from 40B applications
      and impose a 180-day deadline for zoning boards to render
      decisions unless the applicant waives it.

      The quota for gaining a year's hiatus from having to consider
      40B applications is now zoning board approval within a calendar
      year for affordable units totaling 0.5% of total housing stock
      (Wayland is listed at 4703 dwellings). This is down from 0.75%.
      Thus Wayland would need to permit 23.5 units within a calendar
      year. Units now count when the Zoning Board of Appeals
      renders a decision.

      A two-year hiatus can be earned by communities adding
      affordable units totaling 1% of housing stock within a year. See

      There are new criteria by which boards may judge a project,
      such as regulations consistent with local needs and the
      environment as well as municipal and regional planning for
      affordable housing. The regulations now say all local
      requirements and regulations as well as decisions of the board
      must be "consistent with local needs."

      Examples of local requirements and regulations include "all
      local legislative, regulatory, or other actions which are more
      restrictive than state requirements, if any, including local zoning
      and wetlands ordinances or bylaws, subdivision and board of
      health rules, and other local ordinances, by-laws, codes, and
      regulations, in each case which are in effect on the date of the
      Project's application to the Board." This is in contrast with the
      previous 40B, which recognized state regulations, such as the
      Wetlands Protection Act, Title 5, and all building codes as being

      Wayland's standards on wetlands and septic systems are
      more restrictive than the state's.

      The concept of local and regional needs for low- and
      moderate-income housing in the new regulations raises the
      possibility, for example, that Wayland could be affected by
      Natick's ambitious plans for very large 40B projects.

      There is also more emphasis on planning by communities,
      which are now required to file formal paperwork to register the
      affordable units with the Department of Housing and Community
      Development, thus gaining certification, which lasts for a year.

      The new regulations touch all parts of the process, from
      considerations for the subsidizing agency, the zoning board of
      appeals (ZBA), and the appeals process. At the front end of the
      process, there are additional criteria for the subsidizing agency
      to consider when evaluating whether the conceptual design of a
      new project is generally appropriate for the site. These include
      "building massing, topography, environmental resources, and
      integration into existing development patterns."

      If a project's ruling is appealed, the appeals process also must
      consider balancing affordable housing needs in the community
      and region with the "degree to which the health and safety of
      occupants or municipal residents is imperiled, the degree to
      which the natural environment is endangered, the degree to
      which the design of the site and the proposed housing is
      seriously deficient, the degree to which additional Open Spaces
      are critically needed in the municipality, and the degree to which
      the Local Requirements and Regulations bear a direct and
      substantial relationship to the protection of such Local


      The latest 40B application, calling for 56 rental units on 3.15
      acres at 371-373 Commonwealth Road, sent shock waves
      through the neighborhood.

      The Barton site proposal differs from the other recent 40Bs in
      Wayland in two respects: it has more units and it is all rental.
      The proposed typical sizes of the units are 760 square feet for a
      one-bedroom, 1,042 for two bedrooms, and 1,232 for three
      bedrooms. Under the former and new 40B rules, a community
      can count all the units with a rental component toward its 10%
      affordable unit goal as well as toward the annual quota that
      enables a community to decline 40B applications for a year.

      The project at the Barton site also shoots through a town zoning
      loophole pertaining to building height limitation of 35 feet.
      Apparently the bylaw measures the height of a building by the
      mean height from all sides. But the bylaw does not preclude
      piling up dirt on one side. The proposal is to raise the ground
      level by 7 feet in front of the building so the back will be a straight
      45 feet, 9.25 inches tall for all the neighbors on Dean Road to
      view. Drivers on Route 30 will also be looking at 45-foot height
      from the road, in contrast to Sunrise Assisted Living at 285
      Commonwealth Road where the ground level is well below the

      The proposed development has a footprint (including patios) of
      22,162 square feet, in an L-shaped building. The total living area
      is about 65,224 square feet, with another 21,700 square feet of
      garage beneath the building. The total lot coverage by the
      building and paved surface will be 35.4%, or a net increase of
      8,319 square feet, according to the ZBA's consultant, Marchionda
      and Associates.

      The plans call for 90 bedrooms among the 56 units with 28
      one-bedroom units, 22 two-bedroom units, and 6 three-bedroom
      units. The applicant is Oak Tree Management Inc., owned by
      Wayland residents Matthew O'Connor and John O'Connor.

      For comparison, Sunrise is 60,057 square feet of living area on
      4.27 acres. There are 42 units in Willowbrook at the corner of
      Route 30 and Oak Street, which is on a much larger property.

      As the project wends its way through the Wayland ZBA, two
      outstanding issues appear to be related to drainage and
      septage, which pertain to health, as well as the height and size,
      which pertain to safety. Neighbors are also concerned about the
      density of the project and its impacts.

      The location is of some concern because it borders on
      wetlands and the general flow of water is to Snake Brook and
      ultimately Lake Cochituate. Wayland Conservation Administrator
      Brian Monahan said the proposed development entails work
      within 100 feet of bordering vegetated wetlands.


      The applicant is still preparing plans to fit the septic system on
      the property and accommodate drainage requirements. Notably,
      the application includes a 9,900-gallon septic system, calculated
      on the Title V requirement of 110 gallons per day per bedroom.
      However, town regulations for a septic system require 165
      gallons per day per bedroom. The application seeks a waiver
      from the 165 gallon regulation, stating that the town requirement
      is designed to accommodate garbage disposal systems which
      the project will not contain.

      If the Board of Health insists on the 165 gallons, and the ZBA
      agrees, that could downsize the project to 60 bedrooms. Any
      septic system of 10,000 gallons per day or more needs to be
      approved under the Massachusetts Environmental Policy Act.
      Both the proposed Town Center and this development have
      decided their systems should be just under 10,000 gallons per

      The applicant dismisses concerns mentioned by the ZBA of
      introducing nitrogen into the groundwater, saying the project is
      not within a "Water Supply Zone 2 or any Nitrogen Sensitive

      The 9,900 gallons per day capacity proposed for this
      development is larger than the 7,216-gallon existing system at
      the site, WVN research has discovered. The former Kathryn
      Barton nursing home had 59 beds, which would require 8,850
      gallons per day under current Title V regulations.

      WVN could not find in the application document any information
      on the square footage of the proposed building, or of the existing
      septic capacity. Sometimes it's the simplest questions that
      require digging. The application mentions the existing
      12,000-gallon septic tank, but that is different from daily capacity.


      On Feb. 26, the ZBA meeting devoted to this project was
      attended by more than 40 residents and broadcast live by
      WayCAM. The next meeting is April 1.

      Attendees were urged to submit their concerns to the building
      inspector before March 21 to give the proponent's attorney, Brian
      Levy, time to prepare a response. The presentations by the
      applicant's consultants indicated work was ongoing on the
      design of the septic system, as are discussions with the fire


      Many comments from public officials, ZBA consultants,
      residents, and responses by the developer have been
      presented. Fire Chief Robert Loomer said the proposed
      structure "provides very limited access for fire fighting and
      rescue operations." Given the parking spaces taking up about 45
      feet in front of the structure, he said, "it would be impossible for
      our 75-foot aerial to reach the roof of this building. In addition,
      only one side of the structure is directly accessible for exterior
      fire fighting or rescue operations, and in that case, parking stalls
      are indicated across the entire length of the accessible side. We
      question the effectiveness of the proposed fire lane, located on
      the east side of the structure."

      In its response, the applicant stated it is investigating three
      alterations for improved access for the fire department and said
      it has demonstrated that the 75-foot aerial truck would be able to
      reach the roof from the parking area.

      Chief Loomer also expressed concern "about the ability to safely
      remove residents in the event of a medical emergency" and
      requested the elevator be able to accommodate an ambulance
      cot. As currently planned, the single building with one floor of
      garage and three floors of residences would have two stairwells
      and one elevator. The applicant said the elevator meets the
      standard required for accommodating an ambulance gurney.

      The underground parking area is unlikely to have the 12-foot
      height required for fire apparatus, the chief wrote; therefore
      firefighters would have to stretch a hose approximately 300 feet
      from "the garage doors to the most distant parking stall while
      operating" below grade with the risk of additional automobiles
      catching fire. The size of this parking area and its limited access
      for fire fighting operations are of great concern, the chief's letter
      continues. At the meeting, the applicant's consultants indicated
      they are contemplating another door into the garage for use by
      fire personnel.

      Other concerns are that "fire apparatus and other large vehicles
      would have difficulty in safely reversing direction given the limited
      space provided" and the ability of the parking area in front of the
      building to support a fire truck, given the plan to place a large
      leaching area beneath the parking area. The applicant said the
      design would be reinforced and the leaching system is
      designed only with trenches, so the road structure is not over
      open chambers.

      The parking allocation may prove to be tight, given the
      dependence of metrowest residents on autos. For 56 units, the
      proposal cites 56 indoor spaces and 44 outdoor spaces.

      The school business administrator, Joy Buhler, and Police
      Chief Robert Irving both recommended requiring the developer
      to provide a sidewalk along the south side of Commonwealth
      Road, from the driveway entrance west to the intersection of old
      Tavern Road and Loker Street, which is the bus stop for
      neighborhood children traveling more than 1.5 miles to school.

      Although the applicant's presentation indicated a willingness to
      fund or construct a four-foot wide sidewalk, there would be no
      space between the sidewalk and the curb. The sidewalk drew
      many comments from residents.

      The police chief's other suggestions pertained to safety items
      within the project such as stop signs, lighting, crosswalks,
      speed humps, and security cameras. The applicant is not in
      favor of security cameras.

      Although the town requires a side yard of 20 feet, the proposal
      is for 12 feet.

      More specifics, including soil testing, are needed to see the
      impact of drainage on the site, which currently slopes toward
      Dean Road. The plan includes a tot lot and terrace behind the
      building in the area of the proposed storm water infiltration
      chamber, observed the letter from the ZBA consultants.

      The letter requested more information on the size and grading
      required for the area because of the proximity of the proposed
      storm water detention area to the wetlands. The letter also
      asked, "Will the detention area provide enough storage to
      mitigate the storm water generated by the additional impervious
      (surface) created on the site?"

      The applicant said the building will be 52 feet from the
      wetlands, twice the distance from the current building. However,
      the setback of the pavement from the wetlands will be reduced
      from 44 to 41 feet. But the "amount of impervious surface area in
      the 100-foot buffer zone will be reduced from 11,657 square feet
      to 8,045 square feet."

      No project in Wayland would be complete without a traffic
      analysis. There is one from the applicant's consultant, critiqued
      in large part for omissions of other proposed developments on
      Route 30 by a letter from the neighboring Willowbrook (which
      began life as a 40B), which requests a stop light at Loker and
      Route 30. The ZBA's traffic consultant, TEC, has also weighed in.

      A letter written by attorney Susan Bernstein, signed by 35
      concerned residents, states that the "mass and density of the
      Project are too large and therefore inappropriate for the site, the
      neighborhood and the community at large." Citing the 229-foot
      width of the building, the letter requests the applicant fund a peer
      review of building and site design by a qualified architectural firm
      prior to closing the hearing. The neighbor letter also cites
      inadequate parking and requests the board reduce the number
      of units. Other concerns are the vagueness in plans for
      drainage, lighting, landscaping.

      The letter raises the issue of common ownership of this project
      as well as the day care center nearing construction completion
      next door in regard to environmental requirements to determine
      design flows for groundwater discharge as well as septic. The
      letter claims the discharges of the septic systems should have
      been aggregated, which would require one system serving both

      It also argues that the day care facility trips should be included
      "to properly evaluate the overall impacts of these related projects
      and in order to properly evaluate the need for traffic impact

      THE SITE

      Next door, Oak Tree Management has constructed a building for
      its tenant, the Goddard School for preschool children. Goddard,
      according to its web site, currently licenses more than 280
      franchised schools in 37 states. The two sites are expected to
      add to traffic entering and exiting Route 30.

      The developer maintains that a signal is not necessary as it
      expects 255 exiting vehicle trips during the course of a weekday
      for the 40B, with 27 exits during the morning peak hour, and 18
      exiting during the afternoon peak hour. These numbers omit the
      traffic at the day care facility.

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      Wayland Voters Network
      Michael Short, Editor