It’s been awhile since I’ve sent an update, and for that I apologize. The truth is however, up to now we haven’t really had much new to report on. Many of you were at the meeting in Mid-November, and at that time we believed that Mass Housing would be ruling on the Project Eligibility (site approval) within the next few weeks. Well, as the calendar passes and a new year begins, Mass Housing still has not rendered a decision. Determination of Project Eligibility by Mass Housing is really the first step in the 40B process, and one that is generally met with speedy approval. So why the delay? We don’t have a clear answer to this frustrating question, but as stated in the past, this remains the longest open application in 40B history (over a year since initial application). I can tell you that we are in constant contact with Rep. Cutler’s office, who is adamantly against the project and serves as one of our intermediaries with Mass Housing. We also routinely request copies of all correspondence between Mass Housing and the developer, and since the amended application was submitted in August communication has been very light.
At last report, Mass Housing stated to expect a decision in early January. As far as correspondence, in Mid-December Mass Housing requested that the developer submit more detail regarding unit placement and overall site design, including proposed open space areas and walking trails. We have not seen a response from the developer.
We have a few theories for the delay;
1 – The developer has been very sloppy in his approach, resulting in a request for an amended application in July which we and the town believe was resubmitted with unverifiable and incomplete information. These discrepancies have been pointed out to Mass housing, and we believe the entire application is predicated on this erroneous information.
2 – Unfortunately Mass Housing is biased towards approval of these projects. They are a quasi-public agency that drives investment in affordable housing across the state. It’s basically the state’s bank for financing affordable housing, and as such likes to see business applications approved. When looking at previous correspondence on this project, it’s hard not to suspect that they are guiding the applicant to the point of approval. That’s bad news of course, but it does seem like the applicant is being very stubborn in his approach, resulting in further delay. There are massive, glaring problems with this application (along with a previous denial in 2005), that are making it difficult for Mass Housing to rubber stamp this one through.
3 – Perhaps the most unbiased explanation for the extended delay is there has been some shake-up in the ranks at Mass Housing. On January 9th,
MassHousing’s Board of Directors voted to appoint Chrystal Kornegay as the Agency’s Executive Director. Kornegay, who currently serves the Baker-Polito Administration as Undersecretary of Housing and Community Development, will assume the Executive Director role following a brief transition period.
Kornegay succeeds Tom Lyons, MassHousing’s Managing Director of Government Affairs and Communications, who has been serving as Acting Executive Director, and Tim Sullivan, who previously stepped down as Executive Director to pursue a private sector employment opportunity.
Tim Sullivan left the agency a few months ago, and it’s logical to assume the vacancy created some delay in their process.
I don’t know Chrystal Kornegay, but we can expect that anyone appointed to this position is passionate about affordable housing. It’s our hope that she pursues this passion with a reasonable and responsible approach, and it’s our job to make certain she is aware of Pembroke’s longstanding proactive actions towards the creation of affordable housing, and the legitimate and unique objections to this specific project.
Due to the above stated appointment, we have reached out to the legislators representing communities along the North river urging them to once again submit in writing their objections to this particular 40B application. Our attorney is also working with the town on submitting yet another letter of non-support. Remember, there is overwhelming opposition to this project from the Town of Pembroke, every Town Department, the North River Commission, the North & South river Watershed Association, and our State Representatives (Cutler, Catwell, Meschino, DeCoste, deMacedo, and O’Connor). If you know any of these representatives, please feel free reach out to them and reiterate our concerns.
As a process reminder;
If Mass Housing rejects the application as they did in 2005, the applicant can submit a new application at least 90 days following the denial. All issues noted for denial must be addressed with evidence that the reasons for Mass housing’s rejection have been remedied. In addition, other issues may need to be addressed including the concerns raised from Pembroke officials.
It’s our belief that should the application be denied for a second time, it will be difficult for the developer to submit an economically feasible plan. In past correspondence with Mass Housing, he has said little to imply that he is willing to substantially change the footprint that was rejected in 2005.
IF Mass Housing approves the application it does not mean that the project goes forward. It gets messy and takes time, but in summary;
Once the project is determined to be eligible, the developer submits an application for a comprehensive permit to the local ZBA. The ZBA is empowered to grant all local approvals necessary for the project after consulting with other relevant boards, such as the Planning Board, and the Board of Health.
State regulations, such as the Wetlands Protection Act, Title 5, and all building codes, remain fully in effect under the comprehensive permit. Therefore, the local Conservation Commission will review the project regarding compliance with the state’s Wetlands Protection Act.
Within thirty days of the receipt of the application, the zoning board begins a public hearing, which typically continues for several months while concerns are explored and addressed. The zoning board must issue a decision within forty days after ending the public hearing. The zoning board may approve the application as submitted, it can approve the project with conditions or changes, or it can deny the application altogether.
If the ZBA rejects the affordable housing development, the developer may be able to appeal the decision to the State Housing Appeals Committee (HAC), which can overrule the local decision unless the proposed development presents serious health or safety concerns that cannot be mitigated. This right of appeal is only available in communities where less than 10% of the year-round housing meets the statute’s definition of low and moderate income housing or where low and moderate income housing exists on sites comprising less than 1.5% of the municipality’s total land area zoned for residential, commercial or industrial use.
Pembroke is close to, or at the 10% and 1.5% hurdle marks.
WE remain active while we wait. We will pass on any relevant updates via e-mail and Facebook s they come.
Here’s to an exciting 2018,
On behalf of C.A.P.N River Association