255WVN #233: Largest 40B, new regs
- Mar 3, 2008NEW REGULATIONS MAY HELP WAYLAND
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
THE NEW 40B REGULATIONS
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
WAYLAND'S BIGGEST 40B
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
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
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
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
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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