See also an April 12, 2004 letter from Michael Baram to Belmont Planning Board & Board of Selectmen:
Alternative Plan to O'Neill's Housing Proposal for the Belmont Uplands

To Karl Haglund & Fred Paulsen

From Michael Baram (mbaram@bu.edu)

4/23/04

At the last Planning Board meeting, we briefly discussed 40B and enviro/open space considerations. Now that O'Neill has filed his 40B application, I assume the Planning Board, Selectmen, and other Town officials will secure good legal advice on these matters.

In the meantime, I want to point out the following.

1. The Housing Appeals Committee (HAC), which hears appeals by 40B developers, has enacted Procedural Regulations (760CMR30.00) and Criteria for Decisions (760CMR31.00). These are attached FYI. The appeals commonly arise when a town has denied an essential permit or provided a permit with conditions which, according to the developer, make his project "uneconomic".

2. The Criteria for Decisions regulation contains a section on "Evidence to be Heard" regarding "matters actually in dispute" at 760CMR31.07(3). Subsections a & b deal with "Health, Safety and the Environment" and "Site and Building Design". Then subsection c addresses Open Space in terms of availability, utilization, etc. and provides that

"inclusion of the proposed site in said open space or outdoor recreation plan shall create a presumption that the site is needed to preserve open spaces unless the applicant produces evidence to the contrary."

Since O"Neill's Uplands site is included in the Town's Open Space Plan (approved by the Planning Board), subsection c creates a burden for O'Neill. But other parts of the regulation indicate that the Housing Appeals Committee (HAC) decision will ultimately be made on the basis of weighing the need for the proposed affordable housing vs. the opposing interests put forth by the town (e.g. various enviro and health considerations, open space, etc.).

Thus, it seems to me that open space in this case is a very important factor but by itself will not be conclusive. The Town should get expert opinion on this from an attorney whose practice involves 40B cases.

3. Another part of the Criteria regulation that needs expert analysis is 760CMR31.08 on "Decision and Appeal". Subsections b & c essentially provide for dealing with any Town conditions which make a specific project "uneconomic":namely, to remove such conditions which are "not consistent with local needs", and to modify other such conditions to the extent they will still "adequately protect health, safety, environental, design, open space, and other local concerns".

If O'Neill contests Town conditions for scaling down his project as causing the project to be ueconomic, I hope the Town and the HAC will consider that his Uplands project is on a segment of the whole parcel he purchased, that he strategically segmented the parcel into two parts, and sold off one part for a $42 million profit. Thus, whether Town conditions on his project on the Uplands segment make the project uneconomic or not is an issue that should be considered in the context of his speculative purchase of the whole parcel and the profit he has already made on one of the segments. Otherwise, a developer can use segmentation to reduce the Town's ability to assert local needs beyond what was contemplated by 40B. This is very relevant to project density considerations and Town attempts to scale down a project, and I urge the Town to get an expert opinion on this.

4. The HAC has made numerous decisions, the vast majority favoring 40B developers. But these decisions do not necessarily reveal that in many cases, Town assertion of local needs had likely caused developers to voluntarily scale down or relocate or provide more open space before appealing to the HAC, and that appeals were taken only after the developer was unwilling to meet all local conditions or was denied a permit. Legal expertise in 40B law is needed to determine how far a town can go in demanding project change without abridging a developer's rights under 40B.

5. Finally, I sought advice from Edie Netter, esq., a Belmont resident and attorney with extensive 40B-related practice, as to which HAC decisions could provide helpful guidance to the Town regarding its ability to scale down a 40B project and protect open space. She recommended cases involving the towns of Dennis (open space) and Woburn (density). I have not reviewed the cases yet but attach them for you to consider.

I have no experience with 40B law and practice, but think the foregoing comments may be helpful. I urge the Town to retain an attorney with 40B expertise as soon as possible.