Comments for Turnpike Road 40Bs due mid-August (Updated)

250 Turnpike Road has now filed for eligibilty. The Select Board will hold a forum for public comment prior to submitting the Town's letter. The Planning Board is seeking a legal opinion on 120 Turnpike Road.

Above: Given the small “frontage” on Route 9 and a prior decision to that a third building is “not permitted” on the lot, Planning members are asking Town Counsel to advise if Ferris Development is legally allowed to build a 40B on the 120 Turnpike Road site. (image edited from Town’s GIS Map)

The deadline for public comment to MassHousing on the 120 Turnpike Road 40B has been extended to the same date that comments for the newly filed 250 Turnpike Road eligibility application are due.

Here’s my update on the new application, next steps, and the public discussions on both properties this week — from full throated support to questions about the legal buildability.

Public Feedback

To consolidate comments into one document from the Town, the Select Board is requesting boards and committees to submit their comments through the Town Administrator before August 8th.*** (Anyone commenting directly to MassHousing has until the 18th.)

During the Select Board’s discussion on Tuesday, Chair Andrew Dennington clarified that the Site Eligibility Application process is for a very basic determination. It is simply to show the applicant owns and controls the site and there is “nothing completely egregious that prevents the project from being built on the site”.

MassHousing will participate in back-to-back Site Walks scheduled for the morning of July 25th, joined by some representatives of Town boards. The general public isn’t invited. (The Select Board discussed this week that as long as they don’t deliberate, there isn’t a quorum or public meeting issue.)

The Select Board plans to hold at least one forum for the public to make any concerns known prior to the deadline. (Likely as part of their August 8th meeting.) They noted that they aren’t expecting a big turnout against the property at 120 Turnpike but already know there is some neighborhood resistance to 250 Turnpike.

Newest Application

On Tuesday, the Town received the site eligibility application for the property at 250 Turnpike Road. The developer shared that here. It doesn’t appear to have changed from the June presentation. The project is for a 4 story building with 56 units, 14 of which are “affordable”. The breakdown in the application is for 36 1 bedroom, 14 2BR, and 6 3BR, each with an office.

The only notable detail I could find was the answer “Yes” to the question, “Are there any easements, rights of way or other restrictions of record affecting the development of the site?” There is no follow up explanation provided.

The project description does note that there is an easement planned through the abutting property to allow access to Route 9. However, abutters and a Planning Board member have publicly asked/made claims about a legal restriction in a past permit preventing building a residential property (even 40B) on that site based on a prior special permit restriction. You can read more about that (and my explanation of how if might be allowed) and other public concerns already raised by neighbors in June here. The developer has yet to publicly share their legal defense.

(For the details on the previously submitted application for 120 Turnpike Road project, see my post from Monday.)

Board Discussions this Week

Because the second application came in after the Planning Board met and with too short notice for the Select Board and Conservation Commission to dig into, most of the discussion focused on the application for 120 Turnpike Road.

Planning Board Legal Questions

On Monday, the Planning Board discussed their confusion about whether the 120 Turnpike Road project could be permissible given a past special permit with variances granted at the site. Chair Meme Luttrell highlighted that a 2005 decision by the Zoning Board of appeals states “a third building is not permitted by this decision” and that unlike special permits, variances go with the land.

Town Planner Karina Quinn interpreted that to simply mean that the decision wasn’t granting allowance for a third building. But Luttrell interpreted that it prohibited a third building. 

Luttrell noted that in the June meeting, Mike Ferris thought they would get around that by applying for an ANR (Approval Not Required) to split the parcel. Members noted that seemed to be confirmed by the application. (They also registered surprise that the application’s answer to the question about any restrictions on the site was “No”.)

Luttrell couldn’t see any possible way the residential property would have enough frontage to allow a “buildable” lot under state laws, which 40Bs can’t override. And if the parcel remained united, she didn’t understand how the ZBA’s decision would impact the existing office buildings.

The board decided to seek an opinion from Town Counsel before their meeting to discuss a comment letter (and before the site walk if possible). Luttrell worried about seeking an opinion from Town Counsel since he represents the Select Board’s interests. She referred to a Select Board FY24 goal to help get the 40B through. (The actual goal is phrased: “Closely monitor 120 Turnpike Road potential 40B application in Summer 2023 and also investigate its appropriateness for Local Initiative Program under Chapter 40B”.)

Member Debbie DeMuria believed Town Counsel conflict of interest only comes into play when there are contrary opinions. There wasn’t an opinion yet from the Select Board and they were simply raising a legal question. Others agreed.

Select Board Optimism

The following night the Select Board did discuss that they were generally inclined to give full throated support for the project at 120 Turnpike Road. But that was based on perception that there aren’t any public objections and only if nothing else came up. (Although, Luttrell had raised the question about the permit at their June meeting, the Select Board members didn’t appear to be aware that there might be a legal obstacle.)

The board looked favorably on the project that as sited away from residential abutters, not directing cars onto residential roads, and would get them close to their “safe harbor” affordable housing goal. They also hoped that the developer could be urged to increase units to put them over that threshold. (Board members noted that the “affordable” units under 40B laws aren’t that affordable.* They still hope to develop other more-affordable housing in town through other initiatives.)

Conservation Commission Preliminary Look

According to Conservation Agent Melissa Danza**, last night the Conservation Commission discussed the potential impacts of 120 Turnpike Road on abutting Breakneck Hill Conservation land, and visuals from the summit. They also talked about dog waste impacts. (The project includes a proposed dog walk.) Member Ben Smith recommended they use a blue roof for stormwater if the building is flat. And Danza spoke about a “proposed paved swale to the 6′ catch basin” on plans from the original construction of the property. The Land Design engineer, on the call for another item, confirmed they weren’t eliminating the catch basin.

For 250 Turnpike Rd, it was more of an “FYI” since Danza only had “the one page preliminary site plan with no grading or real information.” An abutter briefly shared neighborhood concerns. Smith explained that last night was just about initial comments to the state. He went over the Comprehensive Permit process that the project would go through if it gets past the eligibility phase.

*The affordable units are 80% AMI, which means that someone with an annual income at 80% of the Area Median Income can afford the rent without spending more than 30% of their income on housing.

**I got a helpful recap from Danza before the video from the meeting (now posted) was available to view.

***Updated (8/7/23 10:29am):  I originally referred to August 15th as the deadline the Select Board was giving boards and committees to have their comments incorporated with the Select Board’s response to MassHousing. I can’t find anything that shows that date was communicated. So I assume that was an error on my part.

(In the July 11th meeting, the board discussed getting feedback prior to their August meeting, scheduled for August 8th. The agenda listed the August meeting as scheduled for the 15th, but they had voted earlier in the meeting to move it up by a week.)

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