 Okay, at 7.45 we're going to bring the meeting to order. We have one item on the agenda, whether or not ZBA is going to appeal the decision of DHCD. As of right now, we're going to have a brief comment from town council. Good evening, members of the zoning board of appeals. Good evening, members of the bond, you know the concerned parties. My name is Doug Kline, I'm the town council volunteer. I'm here on behalf of the town officials, our special council attorney, John Whitten, as well as myself to briefly summarize the decision before the board tonight. As the board knows, we received notice that DHCD essentially rejected our assertion of so-called safe harbor status on the basis that 1.5% of appropriate, developable land in Arlington is reserved for de-restricted affordable housing. You all have seen the decision, I won't go over all of the details of it unless you have specific questions, but the town maintains that our data, our methodology and our legal reasoning are sound and therefore we believe that we can continue and should continue to prosecute this matter to the next level, which is the housing appeals committee for the purpose of not only assertion of our rights as we see them now, but also preserving our rights for future appeals if it becomes necessary. With that, if you have any questions again, I'm happy to answer them, but I think the memo from, the decision from DHCD speaks for itself as well as our previous memo was provided to you on September 27th when you initially made your decision to assert safe harbor status. Council Havity is here to provide any technical assistance. Should the board make a decision and wanna make a motion? I have a good idea of what that motion should be, but I'll obviously rely on the technical expertise of Mr. Havity to correct me if I'm wrong about anything. Thank you. So what would be the effect if there is a vote to go ahead and appeal the decision? So how will that work in terms of the effect for the timeline? So Mr. Havity, correct me if I'm missing anything here, but essentially the substantive examination of the application regarding the Thorndike development would continue to be state. There would be a substantive, much more comprehensive examination of the one and a half percent calculation assertion that would result in an evidentiary hearing that would provide both ourselves and the applicants the opportunity to present greater depth of evidence including testimony. So it's hard for me to say exactly how long it would take DHCD to schedule a hearing and produce a decision, but one could assume that it would be at least three months, maybe more than that, maybe as many as six. I don't know if Mr. Havity has any insight on that, but I think that it's at least that timeframe in which the substantive hearing of the application would be state. Mr. Chairman, I actually spoke with someone from the state today and right now it's approximately an eight month process on these appeals. The HAC is not moving very quickly on them as a general rule, although each case is a different animal. So there's really no telling how long it would take, but I wouldn't expect it to be quick. Good. What sorts of information would be available in the appeal that hadn't been presented at the time that this initial decision was given? So the initial decision is based upon the subsidized housing inventory and then our GIS data about land that's supposed to be excluded. We would have the opportunity to provide testimony to question the applicants with respect to how they went about their calculation, what did they relied upon? And similarly, I think there would be an opportunity for us to have our folks testify on behalf of why the town believes that it has the inventory, why it believes its methodology is correct, things of that nature. Mr. Javid, would you add anything to that? I would point out that in the process that's already occurred, the town and the board didn't really have any opportunity to respond to the information that was submitted by the applicants. So the town had the initial burden to come up with evidence to support its claim when it asserted its claim and then the way the process works is then the applicant actually has the opportunity to appeal to DHCD and they provide DHCD their reasons for claiming that the town hasn't met it. So you've never had an opportunity to have actually reviewed that information and provide a substantive response. So that's something new that will occur as part of this process. Plus it's a de novo hearing, so any additional information that the town believes supports its position can be submitted during that process. Any other questions? This time I'd like to make a motion to authorize our special counsel, Mr. Wittman, to file an appeal of DHCD's determination with respect to the 1.5% calculation on behalf of the ZBA and the town of Allenton. Second the motion. All in favor? Aye. Past your name. Business tonight. Mr. Javid, at one point, I'd like to make procedurally moving forward so that you don't need to re-notice this hearing once the appeal is completed. This is just every month or whenever you continue it to. You just need to continue it again to a date certain until the point where the appeal period, the process has completed. Okay. And then you can start from there. Okay. So are you recommending that we do that now? I didn't hear it. Well, it's already been continued to the date, sir. So when that date comes, you just need to do it again. We were voting on whether we wanted to appeal as the zoning board of appeal. This is a public hearing. I'm sorry. Do you like to speak, sir? Too late now. Thank you. I would like to speak. I would like to speak. You have to go to the microphone. You have to go up to the microphone. State your name. My name is John Yerowich. I'm a 50 year resident in Allenton, 33 at the corner of Martinville John Street. This has been a very emotional and personal thing for me since its inception many years ago and the three or four other applications that the owner has made. We've come down to something now where it's a state versus the town and it's the developer versus the residents. We have, the town has come up with a number that satisfies the state's need for safe harbor. The applicant has said, this is a wrong number. Pose it to the state. The state says, okay, we'll give you your appeal. Now it comes back to us, the town, to reappeal against their appeal in the big picture. And I'm not gonna talk about Lake Street or the wetlands and all of the stuff that we know we've battled around for months. What we have here is the town has spent a good bit of time and money to create a master plan. The word they use in there frequently is cherish. The town has a lot of cherished green, not a lot of cherished green space. This MuGa property is one of those. The applicant would think that it's fine to go in there on day one with chainsaws and bulldozers and dump trucks, wipe out all the greenery, make it look like the Ardenne Forest in World War I. And then go in there and take six or seven centuries old water courses and slide them around like bowls of water on the kitchen table. It doesn't work like that. Those ponds have been there for centuries. They have their own structure, bowl grade. You don't just slide them around like the proverbial bowl. The town has taken time and effort to make this a point to suit the neighbors and the neighborhood, the streets, the traffic, the woodlands, the wetlands, the greenery, the green space, the habitats, you name it. To have an applicant come in for the big payday, for the developer to have the big payday, for 219 or 231, I still haven't got a concrete number yet, new residents of Arlington to live in a new apartment or condo at the expense of umpteen neighbors in the Ladyville area, Kelowyn Manor at either end of Lake Street is just dead wrong, it's bad business, and we cannot let the state bully us around. Never. The town has its own rules. The town has its own ways of doing things. We've supported ourselves all this long. We have to say no. We need the selectman, the ZBA, the conservation commission, town meeting members, and all the residents of Arlington to stand with us and deny this applicant on so many means, so many means. Please say no to them. You've got development from here on out. Stand with us. Thank you. What's your name for the record? My name is Jeff Linton. Question, and then I have a suggestion. My question is... Can you speak a little louder, please? I have a question, and I have a suggestion. My question is if we send that, if we file this motion to protest the decision, is that the last bastion of hope? What happens after that? Is that basically we're defeated and we're done? Or are there more steps after that? So the way that this process works, this is actually an interlocutory appeal, which means it's going outside the course of the normal review process. It's being done before this board finishes its decision-making process on the matter. It goes up to the Housing Appeals Committee, as that'll be the next step. Once the HAC issues its decision, if it's a decision that this board doesn't like, or if it's a decision the applicant doesn't like, doesn't matter, everything goes back to the board for further proceedings. There's no further appeal. Everything, all appeal rights are essentially held in abeyance until the hearing process is completed, and then if the applicant doesn't like the decision of the board, they can take an appeal to the Housing Appeals Committee. You'll have to re-raise these issues at the Housing Appeals Committee in order to preserve them, and then from there an appeal to the trial courts, and then the appeals courts after that. So there could be a fair bit more to the process. Okay. And that's totally separate from reviewing the issues with wetlands and flooding. Right. This is, this is a separate crack. This is whether or not they can get away with just doing it anyway, regardless of those considerations. Right? No. No. No, this, if you want to, this is more whether we need to even consider this under the regulations of 40B. If the town has enough housing stock allocated to affordable housing, then the application doesn't need to proceed under the process that they have originally. So the way the regulations work at the beginning of the hearing, within 15 days of the opening of the hearing, the board needs to notify the applicant whether it meets one of either the statutory or regulatory safe offers. In this case, the town has asserted the housing production, I'm sorry, the 1.5% statutory safe offer. The town needs to actually assert that right within that time period or it loses it. So the town asserted that right. That then kicked off an appeal process to the Department of Housing and Community Development. The applicants took advantage of that appeals process, filed that appeal, DHCD is now ruled. The next step in the process is the interlocutory appeal to the Housing Appeals Committee. Once that is completed, everything goes back to the board to complete its normal hearing process, which has stayed until the interlocutory process is completed. Okay. The claims will then be allowed to be addressed during the appeal, first of the Housing Appeals Committee, then to the trial courts, then to the appeals courts. So really, this is sort of just taking a piece of the process out of order, addressing it up front, because if DHCD came back and said, yes, the town, you meet your safe offer and the town didn't want to approve the project, you come back to the next hearing and deny it and that would be the end of the process. Right. So they try to get that out of the way early to save resources from going through a full hearing process and then getting to DHC only to find out that they never had the right to go forward to begin with. Unfortunately or fortunately, depending on perspective, it's now taking a year plus to get through that process. That wasn't the original intent. Okay. So it was looking to me or at least to the limit of my knowledge that this has been tried before as well, although it looked like in this particular case, the McGarre family and their contractor seemed quite determined to go through with this and they're in for the long haul. So my question sort of leads to a suggestion of should there be a plan B? Say if it doesn't go favorably for us by those reviews and appeals and they end up going forward with it anyway, but that's going to cost them time to go through all of that. I was doing- At that point, they come back to this board to go through the typical hearing process. And that's when this board will take advantage of whatever rights it has and it will retain peer review consultants in order to review anything that's been submitted by the applicants. It will take a close look at all of its options and proceed according. It was the same as it would if the safe harbor process had never been initiated. Okay. That's how council wants to speak up from all. Folks, I just want to say that I appreciate that there are so many folks here who want to be heard and that this board also wants to make sure that people are as informed as they can be. I do want to remind folks, this is actually not what's technically called a public hearing. It's a limited issue of whether or not the board was going to appeal tonight. So they can't respond to more substantive discussions about the Mugar's proposal. They notice this meeting for the limited and very specific and narrow scope of are they going to appeal it? So I think the chair and the ZBA are want to hear from folks and they want to make sure that they recognize that so many people feel very passionate about this and want to be heard. But I just want to remind folks that if there's a lack of sort of dialogue about it, it's because we're here only to look at the narrow issue of asserting and preserving this specific right which affects the posture of the rest of the examination of any application. Technically speaking, for example, we could have safe harbor status and that would not preclude in this case or any other hearing a 40B application out and deciding on its merits do we think this is a good fit? What it does, and again, Mr. Haverty is our technical assistant expert but I think a way of characterizing it is it keeps the sort of control here in Arlington whereas if we don't have safe harbor status, it means that the Housing Appeals Committee could be the ultimate arbiter of what project gets approved and what doesn't. Is that a fair decision, Mr. Haverty? Yes, so what safe harbor does if it is successfully asserted is inoculate any decision by the board is automatically consistent with local needs. So whether or not you approve it without conditions, which never happens. If you approve it with conditions that the developer doesn't care, doesn't feel we're into the project un-economic it's not gonna be a problem anyways. If you approve it with conditions that the developer feels renders it un-economic or whether you deny the project in any of those circumstances it's automatically going to be upheld if there's an appeal. Okay, what you just said is sort of what I was alluding to with my suggestion is if it looks like things aren't going favorably with cancelling the project, preventing it from happening entirely if there's that path of negotiation where you say, well, all right, you can build it but not as many units or you're gonna build us this over here to help with the traffic, some kind of a problem. So without discussing any substantive issues regarding this project, as a way of process, most of these hearing processes go forward without the benefit of a safe harbor. And whatever methods and means are available to a board to use to shape the project into something that's acceptable or to deny a project that they can't be shaped into something acceptable are available to this board the same way they would be available to any other board. The safe harbor process is just a separate process and what will happen, what will happen, we forgot to do that. Okay, thank you. What we had tonight was a procedural hearing because we had a very tight timeline. We had to vote on whether to appeal or not to appeal. So that's why we had to have our meeting within a certain amount of time. We took our vote, we took a vote to appeal it and then we followed in that tight timeline that we had to respond. I mean, it's a gray, I live on Mill Street. It would be awfully useful if in the advocate or in your publication, madam, there could just be a decision tree type or a genealogy type where this and this and this and this happen. We might all save it for all of these sort of things. If somebody could just sit down with you as a reporter and just do that, that would be awfully helpful. Thank you, Chris. Adams, you may have changed my mind and speak. I had one question for the board about a year ago. There was another 40B application before you and I had specifically requested that you invoke the safe harbor provision and I'm wondering if that was actually done. Yes, it was. Did the applicant appeal that at that time? They said they would during the hearing. I'm not sure they actually did. They did not. They did not, okay. So it's never come before the HAC before, is that correct? I would respectfully submit that you do not have a chance of prevailing and I would ask whether any members of the board themselves have actually looked at the regulation and looked at the town's calculation. I would recommend not discussing any of the substantive issues regarding the board's position on this matter because this is open hearing and anything you say can be used against you moving forward at the Housing Appeals Committee. The point I would make is if you don't assert your safe harbor protection, you lose it. So if you don't take this appeal, then if at some point in the future it becomes clear that any claims you're making are actually valid whether it's because some of the decision comes down from another court, you will not then be able to go back and say, well, we did have the safe harbor. Once you've lost it, it's gone. Thanks, I appreciate those comments. I would simply suggest that if you look at, if indeed what was reported in the press was correct about the town double counting bodies of water, you're not even close and there is no way the HAC or a court is going to agree with the town's methodology. So in effect, what you're doing is you're costing the taxpayers money by spending it on outside council. You're delaying the whole process. And I would submit that in the end you're gonna come out with a last, you're negotiating position with the applicant by delaying the project and taking this sort of approach because you really have no chance of prevailing. Thank you. Hi, my name is Parul Bakhani. I live at Two Mott Street and I'm a member of the Coalition to Save the Move Our Wetlands. And on behalf of the Coalition, we thank you for voting the way that you did tonight. And we appreciate the timeliness of you putting this meeting together and our attendance to it. So thank you for that. And we will see what comes next. Thanks. You're welcome. Last one, last one. Just a question. I don't know, I'm a little sad. And my question is, I think the residents of Belmont will be affected if this construction goes up. So are you working with a town of Belmont on this issue? Anybody want to look to dive on that one? Yeah. It's premature at this juncture because again, what we're here to talk about is this safe harbor status will affect the posture of how the town proceeds and how the applicants proceed. So we haven't gotten into the real substance and if folks will recall from the September 27th initial opening hearing, one of the things that this board requested that the applicants do and continue to follow up on is provide further details so that we can know more about the project. There's a lot of information that the board felt like it just didn't have in order to begin processing it. But the applicants, you know, but again, tonight we're not here to discuss that. I presume that issue will come up and if in fact Belmont is gonna be impacted by this I'm sure that the town and the ZVA will factor that in. Thank you. Thank you for coming. Thank you. Thank you. Very good.