SOME FACTS REGARDING 40B DEVELOPMENT – THE BASICS

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Chapter 40B of the Massachusetts General Laws is a law passed by the state legislature in 1969 as a means to promote affordable housing. While it has been used steadily since it was enacted, its usage has increased in recent years as new housing has become scarce and all housing so expensive. Also, while demand for diverse housing types such as town houses and apartments has increased, many suburbs do not provide zoning for these housing types so 40B is the only way for developers to build them. However, while related to the housing types, the key advantage for developers under Chapter 40B is increased density.

Chapter 40B sets as a goal that every city and Town in Massachusetts have 10% of its housing stock as “affordable.” So what is affordable? Affordable housing is defined as housing that requires 30% or less of income for a household whose total income is 80% of the median for the metropolitan area it is part of. For the Boston region (of which Sherborn is a part), that works out to about $90,000 for a family of four. It is adjusted upward or downward for larger and smaller households. To be eligible for 40B, development projects must guarantee that at least 25% of its units are affordable (or 20% if the affordable threshold is lowered to households with just 50% of median income). There are also limits on how much profit can be made on the projects and there are auditing requirements.

Okay, so how does 40B development work? While there is no specific penalty for towns that fail to meet the 10% threshold, towns with less than 10% have very limited ability to deny a housing development that is proposed under 40B. People sometimes say that 40B developments can be built while ignoring local laws. That is almost, but not quite accurate. Development projects must provide a specific list of waivers from local laws and regulations it is seeking. If a waiver is denied, the developer can appeal that decision to a state body called the Housing Appeals Committee (HAC). The HAC can then overrule the Town if it finds that the denial makes the project “uneconomic.” Since its mission is to promote affordable housing, the HAC usually (but not always) finds in favor of the developer. Similarly, if a condition is imposed that the developer objects to, he can appeal to the HAC.

To initiate a 40B development, the developer submits a project to the state (usually either MassHousing or MassHousing Partnership) for an initial determination called a Project Eligibility Letter (PEL). With a PEL, the developer then applies to the Zoning Board of Appeals for a “comprehensive permit.” The ZBA then acts as the permit granting authority for the Town rather than the normal entities of Planning Board, Conservation Commission (ConCom) and Board of Health (BOH). The Planning Board can comment on the proposal and the ConCom and BOH can apply state rules and regulations rather than stricter local rules in its evaluation of the project. A public hearing is required and it usually takes several nights of hearings to resolve the issues raised. The final decision is in the hands of the ZBA, and the ZBA is limited to 180 days from the date of application to make a final decision.

As stated above, if a Town’s housing includes 10% or more of affordable housing, it gains the authority to deny a 40B development. There are a few other provisions that give Towns some control. First, there is a “large project” limit. If a project will increase the base number of housing units in the Town by 6% or more, then the project can be denied. If the number of affordable units has increased by 2% of the total housing stock within the previous year, the Towns enter “safe harbor” for 1 year and can deny applications during that time period. If a Town has an approved Housing Production Plan and the affordable housing percentage increases by 1%, it gets “safe harbor" status for two years, or if it increases by .5% it gets one year of safe harbor.

Finally, it should be noted that affordable units are listed by the state in its Subsidized Housing Inventory (SHI). Only units listed in the SHI count toward the 10%. While the 25% minimum applies to both ownership and rental projects, for ownership projects, just the 25% of units that are affordable are listed on the SHI.  For rental projects, 100% of units are listed. Thus, rental projects represent a faster way to reach 10% than ownership projects. Also, there is a provision for a Local Initiative Project (LIP). Under LIP, a developer can obtain consent from the Select Board to support the project when the Select Board believes it is in the best interests of the Town. In addition to facilitating the approval process, the Town gets some advantages such as a local preference for 70% of the affordable units.

Much more detailed information is available on the State web page: https://www.mass.gov/chapter-40-b-planning-and-information

SOME FACTS REGARDING 40B DEVELOPMENT

I understand that many people are not familiar with, or at least not clear about what 40B development is and how it is affecting Sherborn. Therefore, I thought it might be helpful to provide some information about what it is, how it works, what past projects in Sherborn have been developed under 40B rules and what future projects are being proposed. This will be done in three separate posts as follows:

THE BASICS – WHAT IS 40B?

This will be an explanation of what it is and how it works.

PREVIOUS 40B PROJECTS IN SHERBORN

This will include a brief review of the existing 40B projects in Sherborn that are under construction.

CURRENT PROPOSED 40B PROJECTS IN SHERBORN

This will review the presently-proposed 40B projects that are either in some state of the permitting process or in preliminary discussions with Town officials.

Why is the Town testing Jameson Field as a potential leaching field?

Background

For many years, there has been discussion about the issue of considering municipal sewer to the Town Center. The 2001 General Plan noted the difficulty of maintaining septic systems on small lots without impacting groundwater quality, and noted that there had been discussion about a small wastewater treatment plant to serve the area. There also has been speculation about whether Jameson Fields would be a suitable site for a leaching field for a shared septic system or wastewater treatment plant. Knowledge of whether this is an important asset or not is of critical importance to the potential of the Town Center. Any potential use of the fields for this purpose would be subject to much further analysis and votes of the Town.

The newly adopted 2019 Master Plan addresses water and septic issues. It notes that "locations of many Town Center wells and septic fields, which were installed many years ago before today's stricter standards were in place, no longer would be allowed, and they pose a potential health risk. Options for current businesses are limited as there is little room for expansion of septic capacity. Indeed, ground water supplies are currently vulnerable to contamination by existing septic systems. It also states that, in addition to a potential health threat, "it could threaten town finances by forcing expensive emergency infrastructure remediation."

The Select Board appointed the Town Center Options Committee (TCOC) in 2014 to study the technical and financial options available to add water supply and/or wastewater management systems. The TCOC work to date shows further development of the Town Center is constrained by septic disposal capacity and water supply.

One of the recommendations of the Master Plan is to:

C. Support and guide the TCOC with resources needed to complete the analysis of the technical feasibility and projected costs of installing and maintaining a public water and/or septic system within a strictly limited Town Center district.

Previous studies have considered the possibility of a wastewater treatment plant serving the Town Center. The Town worked with Metropolitan Area Planning Council (MAPC) and the Charles River Watershed Association (CWRA) to study the "smart sewer" concept in 2013. The TCOC consultant also prepared a cost estimate for a wastewater treatment system. Both of these efforts lacked the essential information of whether Jameson Field had any capacity to serve as a leaching facility for any wastewater treatment system. A nonbinding vote in the 2007 Town election favored encouraging the formation of a water and/or sewer system to serve the Business district by a 2-1 margin.

Current Efforts

In 2018, a proposal for a private development included the option to locate a wastewater treatment facility leaching field at Jameson Field that would be paid for, in part, by the developer. Several financing options were discussed but the discussions never advanced beyond the preliminary concept stage. However, the discussions did bring to light the fact that no one knows whether using the fields as a leaching area is technically feasible, before even considering financial feasibility.

Some knowledge of the Jameson Field is already available. It is currently the leaching area for the Pine Hill School septic system as well as the Pine Hill School stormwater management system. It also serves as the leaching area for the Fire Station septic system. The Fire Station leaching area is raised due to high groundwater, but the Pine Hill School system is not raised.

Regarding the potential development of a municipal water and/or wastewater system for the Town Center, the Master Plan also states that "The successful solution will depend on the residents' ability to define and agree upon specific additions and changes that are consistent with their shared vision of the future of the Town Center."

Due to the factors stated above, the Planning Board decided that any discussions about the future of the Town Center hinged on whether or not there is technical feasibility of locating a leaching facility at Jameson Fields. Therefore, at the meeting of the Sherborn Select Board of May 23, 2019, the Planning Board asked the Select Board to authorize funding to conduct limited preliminary soil testing that could potentially determine either that a leaching facility was not feasible or whether enough promise could be found to justify additional testing. The Select Board authorized the funding and asked the Planning Board to spearhead the effort.

With input from members of the Planning Board, Board of Health, Town Center Water Options Committee, DPW Director and Town Planner, a local engineering firm familiar with the Town was asked for a proposal. After considering the opportunity, the firm declined because, while it had extensive experience with septic systems, it believed its lack of experience in analyzing conditions for a wastewater treatment facility led to the conclusion that a firm more experienced with such facilities would serve the Town better.

An RFP was drafted and sent to three firms with experience working in Sherborn and with designing wastewater treatment plants. Two proposals were received and both offered excellent credentials. After much review and consideration Stantec was selected.

With some coordination among DPW, Board of Health and Stantec, the testing day was scheduled to be on November 5. DPW supplied an excavator and Stantec provided a certified soil evaluator. Three test pits were dug and soil logs were prepared for all three pits down to 12-15 feet. No groundwater, ledge or impervious soil was encountered to those depths.

The test results indicated highly permeable soils with fast perc rates of under 2 minutes per inch at all three sites. The soil logs also indicate one area at Test Pit #2 with a "Redoximorphic Feature" at 30" from the surface. This can be an indication of high ground water. However, the certified soil evaluator at Stantec states that "Stantec does not believe the observed "Redoximorphic feature" is an indication of high groundwater but rather is an indication of variegated colors. This test pit was done adjacent to forested hill." In any case, monitoring pipes have been installed at all three test pits and will be monitored in the next few months through Spring to determine if groundwater rises within the pits.

Conclusion

While not definitive, the initial test results do not preclude consideration of Jameson Fields as a leaching area for a wastewater treatment facility. The soils are very permeable. Groundwater does not appear to be an issues based on these results but the monitoring pipes that were installed will need to be checked periodically, especially during wet times of year, before a conclusion can be made on that. Capacity has also not been determined. More testing and substantial analysis is required before any decisions could be made.

TOWN MEETING IS APRIL 24 -- PLANNING BOARD HAS 5 ARTICLES

Town Meeting is coming up next Tuesday, April 24, 2018! The Planning Board has 5 zoning articles on the warrant. The Board is proposing and recommending changes to the accessory apartment bylaw, creating outdoor entertainment regulations applicable to the entire Business General district rather than tying it only to restaurants, allowing certain limited events not tied to agriculture to be hosted by farms, and replacing the unworkable "cluster" subdivision bylaw with a more workable version. The Board is not recommending the fifth article to allow commercial solar facilities outside the solar overlay district by special permit. More work is needed on that one.

A more complete discussion (as well as the complete text) of each of those articles can be found on the Town web site at https://www.sherbornma.org/home/news/april-24-2018-annual-town-meeting-information. Click on the item called

Planning Board Summary of Changes to Zoning Articles (April 19, 2018).

Town Meeting begins at 7:00 PM at Lindquist Commons at Dover-Sherborn High School in Dover.

PLANNING BOARD TO HOLD HEARING ON ZONING CHANGES

The Sherborn Planning Board will hold a public hearing regarding its proposed amendments to the Zoning Bylaw on Tuesday, March 6, 2018, beginning at 7:00 PM at Town Hall. The Planning Board is proposing 5 amendments to the Zoning Bylaw for consideration at this year's Annual Town Meeting in April.

The five articles sponsored by the Planning Board are the following:

1. Accessory Apartments -- This article would loosen the requirements to qualify for a special permit by removing the limit on occupancy to relatives and domestic help and allowing the collection of rent. It would require that the owner occupy either the main house of the apartment.

2. Outdoor entertainment in the Business General district -- This amendment would remove the restriction against outdoor entertainment from restaurants and apply it to the entire Business General district. It will still require a special permit and there would be restrictions on hours and noise.

3. Farm events -- This article would help support the sustainability of agriculture in Sherborn by allowing farms to hold special events like weddings or other personal recognition events. Farms wishing to host such events would be subject to site plan review and there would be restrictions on hours and noise.

4. Solar facilities -- Currently, large scale solar photovoltaic facilities are allowed by right but limited to an overlay district that consists only of the closed landfill site. This article would provide for locations outside the overlay district but only by special permit. A maximum of 10% of any such facilities could be located on land that had been in active agriculture or woodlands within the previous five years.

5. Open Space Subdivisions -- The current open space subdivision bylaw has never been used and includes several disincentives. The proposed replacement is based on an updated state model and contains many important updates. It would flip the current situation by allowing open space subdivisions by right and requiring a special permit for conventional development. It would also require that at least 60% of the parcel be preserved as open space, provide maximum flexibility for design within the parcel but require an expanded setback from the entire perimeter. It would still require that a conventional plan be provided to determine the number of housing units that could be permitted and then allow flexibility in arranging those units. The minimum required  protected open space could include no greater percentage of wetlands than the parcel as a whole has.

After receiving input from residents, the Planning Board will prepare a report recommending that Town Meeting support each articles as is, support them with changes, or oppose them. Town Meeting is on Tuesday, April 24.

"COMPLETE STREETS" FORUM TO BE HELD ON JANUARY 16

The Planning Board will host a community forum on January 16, 2018 at 7:00 PM in Town Hall to discuss the draft prioritization plan for the Town's Complete Streets program, as well as how the plan relates to the draft Circulation element of the new General Plan.

The Complete Streets program is a MassDot initiative that encourages streets to serve multiple functions in addition to vehicular travel. The intent is to encourage safe movement for all users, including bicycle and pedestrian access, better connections between transit and other modes, handicapped accessibility, street trees and other measures to encourage walking and improved health, and reduced costs through reduced maintenance costs.

The MassDOT program has three tiers. Tier 1 is adoption of a Complete Streets policy, which Sherborn has already done (and for which it has won a national award from Smart Growth America). Tier 2, which is 100% funded by MassDOT,  is the development of a prioritization plan of identified  projects that will advance the goals of the program. The projects can include sidewalks, bike lanes, off-road trails, road and intersection improvements that enhance use by multiple users, street trees and benches, improved crosswalks, etc. The prioritization plan, being prepared by consultants Green International,  is the focus of the forum. Once a prioritization plan is approved by MassDOT, the Town becomes eligible for Tier 3, which is funding to implement the projects in the plan.

A sampling of the projects included in the draft prioritization plan include:

• ·         Sidewalk on east side of North Main Street;
• ·         Tighten curb radii at Coolidge/North Main and Eliot/North Main;
• ·         Repair sidewalk on North Main north of Hunting Lane.;
• ·         Provide ADA-compliant curb ramps with detectable warning panels at crosswalks;
• ·     Improve Bay Circuit Trail trailheads with crosswalk, connecting sidewalk, wayfinding signs, etc.;
• ·         Install speed feedback devices on North Main and Eliot.