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Letter to MassDevelopment
to oppose a 40 B development on the Uplands, but including an Alternative Site recommendation.
(This is a necessary step towards acceptance by the town of the 40 B proposal from the Developer).

June 17, 2004


Anthony E. Fracasso

Senior Vice-President, Investment Banking


75 Federal Street, 10th Floor

Boston, MA 02110


Re:       Town of Belmont Comments on the Belmont Uplands 40B Eligibility

            Application, Acorn Park Road


Dear Mr. Fracasso,


            Thank you for the extension in the deadline to comment on the Project Eligibility Application for the proposed 40B proposal (the “40B Proposal”).  The Belmont Board of Selectmen used the time to thoroughly review the above application and distribute copies to all municipal departments, boards and committees.  A public hearing was also held to solicit comments and recommendations from interested residents.

            We have evaluated the proposal by applying “Guidelines for Housing Programs in Which Funding is Provided Through a Non-Governmental Entity” (the “Guidelines”).  David J. Bancroft, Senior Vice President, MassDevelopment, confirms that MassDevelopment follows the Guidelines in determining Chapter 40B Project Eligibility.

            In determining Project Eligibility (Site Approval), MassDevelopment must find that the proposed housing design and land use plan are generally appropriate for the site and for the site location in which the site is located.  In addition, MassDevelopment may consider overall density and size, environmental impact (including principles of “smart growth”), community impact and consistency with local housing need.

            In issuing a determination of Project Eligibility (Site Approval) MassDevelopment may require revisions or amendments to the project in order to meet program objectives.  Paragraph 11 of the Guidelines states: “It is important for developers to bear in mind that there is consistency between G.L. c. 40B and meeting environmental concerns.  (G.L. c. 40B § 20).  Consistency with local needs requires a balancing between the regional need for affordable housing and, among other factors, . . . environment, design, open space, and other matters of local concern.”  760 CMR 31.06(2).  For new construction projects, developers are encouraged to pursue development plans that promote quality residential development in already developed areas including “infill” development and development near transportation centers.”  Paragraph 11 states further: “Creative land use designs which reduce infrastructure costs and minimize adverse environmental impacts and/or maximize resident recreational areas and meaningful open space shall be pursued whenever reasonably possible.” 

            Applying the Guidelines and Chapter 40B regulations, we have divided this letter into nine parts as follows:

            I.          Deferral of 40B Application;

            II.         Requirement for MEPA Review;

            III.       Inappropriateness of the Site and Size and Environmental Impact;

            IV.       History of Development Efforts by O’Neill;

            V.        Progress on Expanding Affordable Housing in Belmont;

            VI.       Incomplete Application;

            VII.      Conclusion and Recommendations

            VIII.     Negotiations with O’Neill

            IX.       Site Inspection 

I.          Deferral of 40B Application

            In April, 2003, after the Town agreed to rezone from residential to commercial to accommodate to the developer’s request, O’Neill Development (“O’Neill”) filed a Notice of Intent with the Belmont Conservation Commission pertaining to the 245,000 sq. ft. office/R&D building at the Uplands site.  The Notice of Intent, consisting of three volumes, prepared by O’Neill’s consultants, requested that the Commission (1) issue an order of conditions authorizing the construction of the 40B Project, and (2) review 1,017 feet of wetland delineation on the eastern side of Acorn Park Drive.  The Conservation Commission issued a negative Order of Conditions on June 23, 2003.  On July 8, 2003, O’Neill requested a Superseding Order of Conditions from the Massachusetts Department of Environmental Protection.  This action by O’Neill constitutes an appeal from the Conservation Commission's decision. 

            The Notice of Intent was a key element in the process of obtaining approval of the Town for the construction of the R&D Project.  As stated by O'Neill's attorneys in O'Neill's request for the Superseding Order of Conditions, the process involved the negotiation of the Memorandum of Agreement ("MOA") and the adoption of the Zoning By-Law Amendment in May 2002 (the “Amendment”).  The Amendment addressed wetlands and floodplains impacts.  As further stated by O’Neill’s attorneys, the Conservation Commission’s approval was “a prerequisite to achieving site plan approval on the same topics” as provided for in the Amendment (Page 9 of Nutter McClellen & Fish's letter, dated July 8, 2003).

            The R&D Project remains ongoing.  The MOA between the Town and O’Neill remains in effect, and the Legislation implementing the terms of the MOA was signed within the last three weeks by Governor Romney.

            The Zoning Board of Appeals may dismiss an Application for a Comprehensive Permit if a prior application for an approval related to the construction on the same land (as the site of the proposed 40B Project) has been pending before a local permit granting authority within 12 months of the 40B application.  760 CMR 31.07(1)(h)2.  The Conservation Commission is such a local permit granting authority.  The issuance of the negative Order of Conditions by the Conservation Commission is not final because of O'Neill's appeal.  The Department of Environmental Protection has not decided that appeal.  Because of O’Neill’s appeal to DEP, the application remains pending before the Conservation Commission.  We respectfully request that MassDevelopment defer its Site Eligibility determination until 12 months after O’Neill withdraws its appeal and its application before the Conservation Commission.

II.        Requirement for MEPA Review

            Massachusetts Environmental Protection Act (“MEPA”) regulations require that a Notice of Project Change (NPC) is to be filed by a developer with the Executive Office of Environmental Affairs (“EOEA”) "if there is any material change in a Project prior to the taking of all Agency Actions for the Project".

            O'Neill has changed his project from an Office/R&D facility to a housing project, causing material change in the project's impacts, and has brought the housing project before Town and state agencies for review and action.  But O’Neill has failed to file the NPC even though he has requested Project Eligibility from MassDevelopment for the 40B Proposal, and he was previously warned by EOEA of the need to file timely the NPC if he changed his Office/R&D project to a housing project.

            301 CMR 11.10(1) states: "Unless the Secretary has indicated otherwise in the certificate on a review document or as part of a Special Review Procedure, the Proponent shall, and any other Agency or Person may, file a Notice of Project Change with the Secretary if there is any material change in a Project prior to the taking of all Agency Actions for the Project."

            The Secretary issued a Certificate pertaining to the Belmont Office/R&D Building, dated October 2, 2003.  In this certificate, James W. Hunt acting for Ellen Roy Herzfelder, states in footnote 1, "The findings in this Certificate are based on the alternatives analysis conducted for a commercial development on the subject property.  I understand that the proponent may consider an alternative development consisting of a housing subdivision. If the project should change, we remind the proponent of the need to file a timely Notice of Project Change in accordance with Section 11.10 of the MEPA regulations."  We believe that O'Neill is considerably beyond the "timely" filing date.  O'Neill notified the Town of his first residential project over a year ago, the Secretary published her footnote 1 in October, 2003, and O'Neill filed his 40B Project Eligibility Application with MassDevelopment and the Town in April 2004.

            On account of the requirement in 301 CMR 11.10(1) that O'Neill (the Proponent) “shall file” and the admonition in the footnote in the Environmental Certificate on the R&D Project that the NPC be "timely" filed, it is reasonable to conclude that O'Neill is past due on having to file the NPC.

            For MassDevelopment to decide on Project Eligibility pursuant to the Guidelines, environmental considerations are relevant.  This is specifically acknowledged by MassDevelopment in MassDevelopment’s List of Required Attachments for a complete Chapter 40B application.  One such required attachment includes “State approvals or determinations applicable to the site/proposed project, if any, such as Conservation Commission Order of Conditions, MEPA Determination.” 

            No certification from MassDevelopment or the Department of Housing and Community Development has been provided stating that no Environmental Notification Form must be filed.  No certification from the Secretary of Environmental Affairs has been provided stating that no Environmental Impact Report is required.  

            O’Neill has submitted a single document in response to the requirement in the Application for MEPA related material.  The single document submitted with the Application is a Certificate of the Secretary of Environmental Affairs on the Final Environmental Impact Report pertaining to the Belmont Office/R&D Building, dated October 2, 2003.

            In light of the above, the Board of Selectmen, pursuant to 301 CMR 11.10(1), filed the NPC on June ___, 2004.

            This will enable EOEA to determine what new environmental issues are presented by the changed project and order an evaluation of these issues by O’Neill either in a Supplemental EIR or a new EIR.  This, we anticipate, will result in having EOEA require O’Neill to prepare new traffic, sanitary waste discharge, impacts to wetlands, and other environmental information, and perform a study of alternative locations to avoid destruction of the Silver Maple forest at the Uplands.  This could bring to light some of the advantages of a smaller project and development on the Alternative Rink Site (discussed below). 

            We respectfully request that MassDevelopment defer any decisions on Project Eligibility until EOEA has performed its statutory mandate and MassDevelopment, the Town and citizens have the opportunity to review the environmental studies by O’Neill and comments and findings by state agencies for the 40B Project.

III.       Inappropriateness of the Site and Size and Environmental Impact

            The Board unanimously favors affordable housing in Belmont, and the Town has taken active steps to ensure the development of such housing.  In 2003, after two years of deliberation, the Town Meeting adopted an inclusionary zoning bylaw.  This bylaw requires that any residential development of seven or more units include at least 25% of the units as affordable as defined under Chapter 40B.  This bylaw applies to all development, whether it is the Belmont Uplands, the redevelopment of an existing structure such as a closed church, or the redevelopment of any of the handful of empty parcels of land in the Town.

            However, the majority of the Board does not support residential use at the so-called "Belmont Uplands" site.  From a planning perspective, Town authorities have long believed that the best use of this isolated parcel is for open space, the next preferred option is for non-residential use, and the least favorable option is for residential purposes.  The reasons for this position are detailed below.  Also attached, please find 13 replies by municipal boards and departments to the 40B Proposal along with several comments from Belmont citizens. Our general comments follow.

            The sheer size of the 40B Proposal by O’Neill is not in scale with the community. A 300 unit housing complex is too large and results in too high a residential density.  The 40B Proposal is about six times denser than the average density for the Town of Belmont.  The Uplands site contains only 9.3 acres of buildable area within Belmont (O’Neill’s property spans the Cambridge city line).  Moreover, part of the “buildable area” includes buffer areas to the wetlands and Little Pond and Little River.  As proposed, the five buildings cover most of the upland area leaving little dry land available for recreational amenities for the future residents, stormwater management, adequate fire access and other associated uses.  

            The Uplands site is not appropriate for housing from environmental and land use standpoints.  The locus directly abuts the Department of Conservation and Recreation (DCR) Alewife Reservation and provides wildlife habitat for many species within the Reservation as described in the attached letter from the Conservation Commission.  Approximately 4.8 acres of the site are wetlands.  The open space at the Uplands functions naturally as part of the abutting Alewife Reservation.  The Uplands parcel on which O’Neil proposes to build is virtually the only uplands available for the wildlife that inhabit the wetlands on the reservation.  This is documented by a wildlife study commissioned by the Friends of Alewife Reservation.  Unless the Uplands are preserved, many wetlands species are at serious risk.  The current role of the Uplands, in mitigating the serious flood problems in Belmont, Cambridge, and East Arlington would be lost. 

            The Site Plan for the 40B Proposal shows that the footprints of the five proposed buildings intrude into the buffer areas of the bordering vegetated wetlands.  The natural flood storage capacity of the Uplands will be lost.  Residential use will have greater impacts on the environment than non-residential (an office building) due to the lot coverage, future encroachment by residential users, and a higher intensity of use by people living adjacent to the bordering vegetated wetlands.

            The Town's Open Space Plan identified the site as having extremely high environmental value.  Reference is made to the attached memorandum by Roger Wrubel, Mike Baram, and Murray Ruben on the significance of the Town’s Open Space and Recreation Plan; and the letter from the Belmont Land Trust asking that the Open Space Plan for the Uplands be respected. 

            Use of the Uplands for conservation purposes has been recommended by the original Alewife Study Committee and by the current Uplands Advisory Committee, and adding the parcel to the Alewife Reservation is the preferred option.  

            The locus is geographically isolated from the community. It is split by the Cambridge City line and is surrounded by Route 2, Little Pond/Little River and related wetlands, and the Acorn Park office complex.  There are no residential abutters or amenities for school-aged children.  There is no public transportation or pedestrian access to the site from the Town. There is only one means of access to the site through Belmont at the edge of Town.  Therefore, police and fire protection responses will be delayed when compared with the remainder of the community (see comments from the Police and Fire Departments).

            There is no municipal water, sewer or electricity at the site. It is our understanding that the City of Cambridge controls access to the water and sewer lines located within the Acorn Park Road layout.  The City of Cambridge has not cooperated in previous efforts to access these utilities for the development of an office/R & D building.  The options of installing new lines under the Little River or through a half dozen residential streets in Belmont are not desirable, and the sewage ends up in the Cambridge/MWRA system in any case.  The Fire Department is concerned that the system be "redundant" and that it provide sufficient fire flows (see attached memorandum).  The Belmont Electric Light Department offers comments on providing power to the site (copy attached).

            We are concerned that there are no provisions within the proposal for senior housing. Belmont has a high percentage of elderly citizens and the housing needs for this segment of the population should be addressed.  According to the Belmont Housing Trust (comments attached), the proposal does not fulfill Town's overall housing goals and will actually be detrimental to them.  As noted above, the BHT has been very active in developing affordable housing and implementing the Town’s Inclusionary Housing By-Law.  Chairman Roger Colton details in the attached letter the specific problems with the application relative to this By-Law, the Town’s own requirements and the Chapter 40B Guidelines.  For example, when compared to the Town’s By-law, the 40B Proposal will produce fewer affordable units than a similarly sized project, will decrease the number of affordable occupancy years, and will place additional financial risks on the targeted residents.  Mr. Colton presents seven recommendations for your consideration.

IV.       History of Development Efforts by O’Neill

            The Town had, for some time, been discussing a luxury condominium proposal with the developer of the site.  Town authorities consistently expressed the concern that the overall proposal was simply too large.  Following the passage of our inclusionary by-law and with the Town’s encouragement, O’Neill added an affordable component to the proposal, by increasing the total number of units from 188 to 250.  Without withdrawing his earlier two proposals, O’Neill submitted the 40B Proposal to circumvent the Town’s legitimate environmental concerns about the size of his condominium proposal.

            It is ironic that in May of 2002, O’Neill successfully petitioned the Town to change the zoning of the locus from residential to office/research & development.  O’Neill has since petitioned the Town to rezone the site back to residential due to the poor market for office uses.  In April, 2003, O’Neill proposed to construct 250 condominiums - in a format (consisting of 400,000 gross sq. ft. floor area with four stories) considerably larger than the first proposal for office/research & development (consisting of 242,500 sq. ft. floor area with four stories).  The Planning Board has had the rezoning petition under consideration for over 12 months.  Last month, the Planning Board considered that the rezoning petition had been withdrawn because O’Neill failed to show up at the adjourned meeting.  It should also be noted that the Town was informed that a 40B application would be submitted if it did not act favorably on the 250 unit condominium proposal.

V.        Progress on Expanding Affordable Housing in Belmont

            The community has made great strides in creating new housing opportunities over the past several years.  The Town has held numerous meetings, adopted progressive zoning by-law amendments, approved housing plans and sought and secured funding to construct units in order to make affordable housing a reality.

            In 1999, the Belmont Housing Trust (“BHT”) was created by an act of the State Legislature. Shortly after the BHT was created, the Town received a Municipal Incentive Grant to draft An Affordable Housing Strategy for the Town of Belmont. As part of the McLean Hospital rezoning process, the Town negotiated 30 affordable units in the Assisted Living Facility and 1.34 acres to be given to the Town specifically for affordable housing.  All parties agreed upon a schematic plan that included 25 rental housing units on the parcel.  In 2001, the Town joined the West Metro HOME Consortium and drafted and obtained approval on the various documents required as a recipient of HOME funding -FY 2003- 2005 Consolidated Plan and Strategy, Analysis of Impediments to Fair Housing Choice, etc.  For several years, the Town has been a participant in DHCD's Soft Second Loan Program.  The Belmont Fair Housing Committee produced and distributed throughout Town several brochures for landlords and tenants describing fair housing laws.  In May of 2003, the Town adopted an Inclusionary Housing By-Law mandating the inclusion of affordable housing in specified residential developments.

            In November of 2003, Town Meeting approved the disposition of two municipally owned parcels for affordable housing.  Both of these projects are moving forward and construction is expected to begin in the fall of 2004.  Finally, in an effort to keep residents in their homes, the Town has adopted two 92 tax programs to allow abatements for the elderly and deferral of taxes for those who have difficulty paying their taxes.  Currently, several hundred residents participate in these programs.  As evidenced by these actions, the Town supports affordable housing, but as will be discussed below not at the Belmont Uplands.

VI.       Recommendations for Alternative Location

            The Uplands Advisory Committee, a committee appointed by the Board, recommends that the development be relocated to adjacent land (an abandoned MDC skating rink site) owned by DCR.  They are actively investigating this option.  The so-called "MDC rink site" is located on Frontage Road, off of Lake Street and Route 2.  It is a previously developed site and the Committee recommends that it be swapped for the more environmentally valuable (and sensitive) land of the developer.  Use of the already developed Rink Site in place of the natural Uplands satisfies the State’s “Smart Growth” principles.  This is documented in the attached report on Smart Growth Principles by Jim Graves. 

            Informal discussions with Commissioner Kathy Abbott and Pam DiBona of DCR have identified DCR’s positive interest in this proposal.  This could be likened to a Transfer of Development Rights (TDR) where the developer receives the right to build in another location and DCR would receive the Uplands property that would fit best into the Alewife Reservation.  The Uplands Advisory Committee has met with all local legislators whose districts include or abut the Uplands and Rink sites.

            The Uplands Advisory Committee has submitted a letter dated June 10, 2004 to the Board of Selectmen with accompanying reports that address the feasibility of exchanging the Rink Site for the Uplands parcel.

            A majority of the Selectmen support working to achieve development on the Rink Site instead of on the Uplands.

VI.       Incomplete Application

            According to the DHCD Guidelines, MassHousing is required to issue a number of specific findings in any approval of project eligibility.  One of these required findings is that “the proposed project appears generally eligible under the requirements of the housing program.” 

            For MassDevelopment to make the required findings set forth in the Guidelines, it is contemplated that the host community be provided with sufficient information upon which to base comments.  The preliminary plans accompanying the 40B Application are so incomplete, particularly with regard to utility infrastructure, access, protection of wetlands, and stormwater management and flood control information, that no reasonable assessment can be made on the appropriateness of the proposed development for the site or the extent of environmental impacts.

            Furthermore, O’Neill’s Development Budget is incomplete, as indicated below:

            a.         Site work and utilities are carried at 10% of unit construction.  This site, having no improvements currently, will result in greater site utility costs than normal.  For instance, a new sewer line will probably be required from the Acorn Park site to Lake Street, down Garrison, Gilmore, and Oliver to Brighton Road where a 15 inch sewer exists.  Roadway access off of Route 2 would be necessary to service a development of this size, adding additional costs.

            b.         Overall, construction cost of $118,400 per unit is on the low side when compared to comparable apartment units of the type proposed.

            c.         The “below grade” garage for 220 spaces is not included in the cost estimate.  This could be a significant impact to development budget.

            d.         Insurance, taxes, and carrying costs appear to be for one year.  These costs should reflect actual cost during the construction period until rental income is realized.  For this size project, two years is probably more realistic.

            e.         The developer’s fee at 20% is at the maximum allowed under the 40B proposal process.  Typically, final developer fees are lower in the range of from 12% to 15%.

            We also point out that land acquisition cost is carried at $8.8 million “appraised value”.  The recorded cost of acquisition by O’Neill in May 1999 was $1.56 million for Belmont’s 12.9 acres.  By including Cambridge’s additional 3.75 acres, total acreage increases to 15.656 acres and a total Acquisition Cost for the parcel as a whole of $2.07 million.

            Other examples of discrepancies and incomplete information in the 40B Application are included in the attached memorandum by Carolyn Bishop and others. 

VII.     Conclusion and Recommendations

            Based on the above reasons, the Board does not support the 40B Project Eligibility for the Belmont Uplands site and requests that MassDevelopment reject this application.  However, the Board intends to continue its support for creating new affordable housing options in Belmont and asks that MassDevelopment work cooperatively with the DCR to facilitate the development of this housing on the former MDC rink site on Frontage Road.

            Before any effort should be expended by the Town’s Zoning Board of Appeals to evaluate “local needs” in the environmental and open space context, MassDevelopment should defer its Project Eligibility decision until O’Neill complies with MEPA.

            Last, MassDevelopment should defer its Site Project Eligibility determination until 12 months after O’Neill withdraws its appeal of the Conservation Commission’s decision.

VIII.    Negotiations with O’Neill

            In June 1990, DHCD issued “Guidelines for Local Review of Comprehensive Permits” (the “Guidelines”).  The Guidelines state on page 14 that “Before a comprehensive permit application is sent to the zoning Board of Appeals, the local housing partnership should meet with the developer to review the project and begin negotiations on behalf of the community.  Only after the local housing partnership has had a reasonable opportunity to review a proposal should the developer submit his/her comprehensive permit application to the Zoning Board.”

            The only meeting referenced by O’Neill in the 40B Application was a meeting with the Board of Selectmen.  MassDevelopment should defer deciding on Site Feasibility until the Town acting through the Housing Trust, the Uplands Advisory Committee, and other related Boards and Officials have the opportunity to negotiate with O’Neill to achieve a more balanced suitable housing project.

IX.       Site Inspection

            We request the opportunity to accompany MassDevelopment representatives on their site visit to the project and at a project review meeting.  The Town anticipates that MassDevelopment will conduct a site inspection and project review meeting as required by the Massachusetts Department of Housing and Community Development (DHCD) “Guidelines for Housing Programs in Which Funding is Provided Through a Non-Governmental Entity” (the Guidelines).  The Guidelines state that “in conjunction with the [project eligibility] comment period, a site visit and project review meeting will be scheduled by the Project Administrator [i.e., MassDevelopment] . . ..  The Project Administrator may invite the developer and representatives of the municipality to participate in the site visit and project review meeting.”

            The DHCD Guidelines state that during the project review meeting, “additional scrutiny may be given to operating budgets, environmental issues, land valuation, marketing, financing, development scheduling, developer qualifications, handicapped access and /or provisions for the disabled and other concerns related to the project.”  The Town of Belmont is eager to participate in such a discussion with MassDevelopment.  Please contact Town Administrator Mel Kleckner (617-489-8213) to arrange times for the site visit and project review meeting.

            Thank you for the opportunity to comment on the Belmont Uplands 40B Project Eligibility Application.  Please contact Senior Planner Timothy Higgins who has been designated as the Town's liaison if you have any questions.  He can be reached at 617-489-8229 during regular business hours or at at your convenience.

Very truly yours,