 suspending certain provisions of the Open Meeting Law, General Laws 30A, Section 20, and signed Thursday, March 12th, 2020. This CBA meeting is being held virtually using the Zoom platform. My name is Steve Judge, and as chair of the Amherst CBA, I'm calling this meeting to order at five. This meeting is being recorded. Before we begin tonight's agenda, I want to welcome to the meeting the members of the Town Council, members of Town staff, and the general public. I also want to welcome to the ZBA several new members and one returning member. Keith Langsvale will be returning to the ZBA. It's good to have you back, Keith. We can use your help. Tammy Parks has agreed to become a member of the ZBA. Dylan Maxfield has been appointed a new member. In addition, Sharon Waldman has been reappointed as an associate member. Peter Barrick, Robert Greeny, and Craig Meadows are newly appointed associate members as well. Congratulations and welcome to you all. The agenda for tonight's public meeting is a training session for the members of the Zoning Board of Appeals on the comprehensive permit process provided in Massachusetts General Laws, Section 40B. The training session will be conducted by John Whitten of KP Law. Board members, please use the raise hand function to ask a question or make a comment. I will see you raised hand and either or Maureen will see you raised hand and I will call upon you to speak. After speaking, please remember to re-mute yourself. If technical difficulties arise, we may need to pause temporarily to rectify the problem and then continue the meeting. If you do have a technical issue, please let Maureen Pollock know or let me know and discussions may be suspended while the technical issues are resolved. Unlike the hearing, public comment during the meeting is at discretion of the chair. Tonight, the public comment period is at the end of the ZVA meeting and is restricted to questions and comments about process. There should be no questions or comments about specific comprehensive permit applications. This is part of state law. ZVA members are not allowed to listen or engage in conversation about a project that is not yet before them for a public hearing. So at the end of the meeting, I will review this process by which we will recognize members of the public for comment. But until that time, the discussion will be between the presenter and members of the ZVA. So unless there are any questions from members or staff, we will begin the training session. I would ask all ZVA members to put themselves on mute and to use the raise hand function should they have a question. The training tonight will be conducted by Mr. John Whitten of KP Law. Mr. Whitten, thank you for being here tonight. You may begin. Thank you, Mr. Chairman. Good evening members of the board. It's a pleasure to meet you all in a most unusual format. I am a planner, I'm a lawyer and for the past 32 years, I've been on the faculty of Tufts University's department of urban and environmental planning and policy. And this particular field is of great interest to me and that is the development and creation of affordable housing, blow market rate housing throughout the Commonwealth. The statutory scheme that we're gonna discuss tonight is controversial in part because it is both old in terms of when it was adopted and mostly in part because of the regulations that have been promulgated following the adoption of the statute but the statute itself has not been revised since its adoption in 1969. So Mr. Chairman, I have a PowerPoint presentation which I'm just gonna use to help guide the conversation. I urge the board members to interrupt me as we go along, you can use the function on Zoom or you can just speak out and I'll stop talking and let you answer your question. We're gonna cover a lot of material and it's better to interrupt as we go along rather than to wait until the end. I'm gonna talk kind of generally at first and then we can get into the weeds so to speak as we go through the material but I'll warn us all that a review of the comprehensive permit statute is not like a review of the Zoning Act or other legislation in the Commonwealth. It is very, very different. It applies in a wholly different manner and for those of you that have served on public bodies in the past, it really is a very different approach to governance. So kind of with that caveat, I'm gonna try and Maureen's gonna help me with this. I'm gonna try and just get the PowerPoint slide show going and Maureen, is that working? I would put it on presentation at the bottom right. Okay, but you can see this one slide? Yes, I can. Okay, super. Perfect. So the only thing Maureen is I can't see, now I can. All right, so I can see most of you. So if there's a question, my sense is just to speak up and then I'll stop once I hear someone's voice. Does that work, Mr. Chairman? Yeah, okay, okay. Before joining KP, I had a small law firm called Huggins & Witten. Barbara Huggins was my law partner and she's with me now at KP. We've represented a lot of cities and towns throughout the Commonwealth and of course KP represents a lot more cities and towns throughout the Commonwealth. I've used 40B with cities and towns to constructively progressively build below market rate housing. And I've litigated an awful lot of cases where a developer was trying to use 40B as a bludgeon and I've litigated those cases to protect cities and towns and a butters group. So I've seen both sides of this issue and I'm happy to talk to the board about strategy as we talk more. Just on a personal note, 32 years ago I worked with your town manager when Paul and I were both 32 years younger, when Paul was at the town of Manchester by the sea and I was working for the town on a bunch of issues but one was an affordable housing plan which we're gonna talk a little bit about in a few minutes in terms of what Amherst can do to help strengthen its programmatic approach to 40B review. So the first slide talks about the history of 40B. It's 1969, it's an extremely old statute to not have any revisions after all these years. We'll talk more about that in a moment. The most important thing as an introductory piece is that the Board of Appeals sits in the shoes of all local regulatory bodies that are issuing any local permit. There are three important exceptions to that. One is the state building code, the other is Title V and there is one more that we're gonna touch on a little bit later but those are the two most important. The Board of Appeals does not replace the building commissioners obligations under the building code and the Board of Appeals does not replace the conservation commission's jurisdiction under the Wetlands Protection Act but the Board does sit in the shoes of the conservation commission under the local wetlands bylaw just like it sits in the shoes of the planning board under the town's subdivision regulations or any locally issued permit most notably zoning. So this phrase one-stop shopping, comprehensive permit, that phrase is used to imply that the ZBA is acting comprehensively, that there is no need for an applicant to go to multiple boards for approval. There are exceptions to that but the two most notable exceptions are Title V and the Wetlands Protection, excuse me, the building permit and the Wetlands Protection Act and then the third exception is Title V and that's the one we'll save till later. The first bullet, basic principles of supremacy apply is worth talking about at least generically and I'm happy to express it more fully in a few moments. Basic principles of supremacy apply here meaning the statute that adopted by the legislature always is supreme to regulations adopted by agencies. So the general court, the Massachusetts general court, the legislature passes laws, agencies promulgate regulations. When there's a conflict between the regulation and the statute, the regulation always fails. So it's this basic notion of supremacy and that's very important in 40B because the statute and the regulations are in conflict. The regulations being promulgated many, many, many times over the past 40 plus years have been promulgated in a way that in important instances, they conflict with the statute and I'll make more comment on that in a moment and it'll be important for the Board of Appeals to feel comfortable with this. The other important thing to start off with is the relevance of having locally adopted rules and regulations. Just like the planning board has subdivision rules and regulations, a Board of Appeals can have comprehensive permit rules and regulations. In fact, the statute says you shall have, now that's not ever been enforced against the Board, but the reason to have locally adopted comprehensive rules and regulations is they are not independently appealable, meaning a developer or an applicant for a comprehensive permit cannot appeal your regulations independent of an appeal of your decision. So as a first instance, it allows the town to set in the Board to set the standard of what you expect on an application, whether it's procedural things like numbers of plans or the scale or the complexity of the detail you seek or more substantive issues like conformance with the town's open space plan, conformance with the master plan, environmental impact analysis, whatever it may be, those need to be spelled out in your comprehensive permit rules and regulations. I urge the Board to consider adopting those. There are a lot of very good ones out there. I've written a bunch, I'm happy to share them with you and you can kind of cut and paste and make them work for you, but you really wanna be kind of armed with having those regs in place well before you have subsequent 40B applications. There are two critical definitions we wanna talk about and they're counterintuitive. They don't make much sense linguistically, but we have what we have. And the first one is this definition of consistent with local needs. The entire statute revolves around these two definitions that we're gonna talk about. The first one consistent with local needs. And what it means is that the town has achieved a milestone that allows the Board of Appeals to render a comprehensive permit decision that precludes an applicant from appealing your decision to the Housing Appeals Committee. So it's a long-winded sentence, but that's how this definition works. What does the town have in terms of consistent with local needs? Well, the one that's most common is having 10% of your housing stock being listed on the State Department of Housing and Community Development, DHCD, listed on their so-called SHI, which stands for Subsidized Housing Inventory. If 10% of your housing stock is listed on the SHI, then you are consistent with local needs. And to the best of my understanding, the town is over 10%. Another way of achieving consistent with local needs is this 1.5% land area criteria. Another way is through a planned production approval, and there are four other ways listed in the regulations that I'm happy to talk about. The big one, the one that gets the most attention is the 10%. Now, one warning, not threatening, but a warning is cities and towns that have been over 10% for a long time, and many of them have been, are now gonna face the 2020 census, where you could very likely drop out of the 10%. So municipalities that were close, and my understanding of the town is it's slightly over 11%. Municipalities that are close run the risk of losing every 10 years their achievement. The census is required every 10 years, the statute requires an update every 10 years, and that's what's going to happen to many jurisdictions in 2020. It's gonna be delayed, but we're gonna know sooner rather than later. So achieving 10% is not permanent, and the way to maintain the 10% requires, of course, the production of more housing that gets on your SHI. So being consistent with local needs does not mean the Board of Appeals can refuse to entertain a comprehensive permit application. It does not mean that the Board of Appeals can simply ignore the procedural requirements that we're gonna talk about. It does mean that a Board of Appeals can approve a comprehensive permit application even though you're over 10%, and Amherst knows that because of the Boothroyd decision. So in Boothroyd, the town was over 10%, the Supreme Judicial Court upheld a comprehensive permit approach even though you were over 10%. That's one of the very controversial portions of the statute. Is Beagle, yes, sir? John, this is Steve. Do we, how many of these criteria do you have to meet? Is one sufficient or is it more than one? One is sufficient. However, because they are moving parts, many jurisdictions will try and have more than one. So for example, a town like Amherst will have great trouble with 1.5% because your land area is so large, but you may have 10% and a planned production. So if you lose the 10%, you would have the planned production to fall back on. So it's not uncommon for municipalities to seek multiple ways of protecting themselves. And that's a good excuse for me to kind of remind us what we're talking about. Being consistent with local needs means that you're inoculated, protected against the developer's appeal to the Housing Appeals Committee. You're not protected against an abutters appeal of a Board of Appeals decision approving a comprehensive permit, nor are you precluded from approving or approving with conditions a comprehensive permit. What it means is the developer loses jurisdiction to appeal to the Housing Appeals Committee. Put more technically, the Housing Appeals Committee doesn't have jurisdiction to hear that appeal. Okay, is there any other? I'm, you suggested that the census, which my understanding is that it indicates how many people are living in town. What is the relationship between that and the number of units, affordable units in town? So great question. So what will also happen for the census will be an update for the number of building permits that have been issued and the number of dwellings that have been constructed. So when the 10 year census is produced, we also have not just population, but we get a determination of number of new housing starts. So because the 10% is numerator over denominator, the denominator being the total number of housing units in the town, the numerator is those units on the SHI. As the denominator grows, your numerator is gonna fall typically. So that's why that's an important correlation. So we're not, you're absolutely right. We're not focusing though on population or focusing on housing units. So it's a mathematical equation of 10% of the housing units as opposed to population. It also brings up an important question that many people ask for all the right reasons, which is we have mobile homes or we have housing units that are very affordable, well below median income. Those units do not count on your SHI. The only units that count on your SHI are those that DHCD puts on the SHI. And I'll tell you, there are many communities, especially closer to where I am in Eastern Massachusetts, where there are a lot of mobile homes, Wareham, Middleborough, Carver, for example, none of those units count and all of those units are affordable under any metric, but they don't count. And there's a political reason for that that I'm happy to talk about, but you really have to focus on the numerator, not being those units that are affordable, but those units that the state deems to qualify. It's not necessarily a one-to-one relationship. Does that, should I keep going? Does that work for everyone? So we just talked about this last piece in terms of consistent with local needs, but I wanna focus on the bottom bullet here, which is you may still hear an application. I'll change the May to shall. You cannot reject an application simply because the town is consistent with local needs. We'll talk more about how you might want to dispose of an application that the board does not approve, but you still must go through the public hearing, or the public notice, the public hearing and the evidence gathering process before you can turn it down. So just again, I suspect the board will be as other boards in towns that are consistent with local needs. I suspect you're gonna be under pressure from folks who say you can just deny you don't even have to go through the process. And I just wanna correct that, that's not true. You do have to go through the process because all it means is the developer does not have a right of appeal. The second important definition is the definition of the phrase uneconomic. And again, it's cryptic and it's not intuitive. So in a 40B application, the statute says that for a nonprofit or a public agency, if the town were to be the applicant or a nonprofit housing organization were to be the applicant, the board of appeals may not impose conditions that leave the agency with an impossibility, where the agency will go broke or the project will go under. So the phrase impossible to proceed is the operative word. The more common issue is where it's a for-profit entity and the statute refers to for-profit entities as limited dividend organizations. There's no such phrase in the law. We've created it here in Massachusetts to define an entity, a private organization that agrees to restrict its profit to a certain cap. And I'll discuss more about that in a second. So assuming that the applicant before the board of appeals for a comprehensive permit is a private developer, a private development company or a public development company, Avalon Bay, for example, or a large national rental housing developer. If they are the applicant, the board of appeals cannot impose conditions, including a reduction in density that would render that project uneconomic. And uneconomic means leaving the developer with a profit that is less than defined by the state agency that is issuing the subsidy. So again, a lot of words that get in the way. You cannot leave the developer with a profit less than he or she is entitled to under the program that they are applying for. None of this is relevant if the town is consistent with local needs. If you're consistent with local needs, which Amherst is, then the applicant has no appeal to the Housing Appeals Committee. So the definition of uneconomic is relevant to cities and towns that are not consistent with local needs. So you're living in two worlds in a sense because you are over the 10% requirement. You are consistent with local needs. So it's important, and you'll see in just a moment that the town plays that card every single time you get a comprehensive permit application to protect the board against an appeal to the Housing Appeals Committee. I think many board members are aware of the project eligibility process and I'll just spend a minute on it. The subsidy in the Commonwealth now, as opposed to in the older days of developing affordable housing. The subsidy in the Commonwealth for most projects comes in the form of a letter from a state agency known as Mass Housing. For those of you that have been around this business, you know it used to be called the Massachusetts Housing Finance Agency, MHFA. They changed their name to Mass Housing. Mass Housing issues a project eligibility letter and a good way of thinking about what that means is it's a ticket. In order to apply to the Board of Appeals for a comprehensive permit, I need a ticket and a PE letter, project eligibility letter is the ticket. Without a ticket, I can't apply for a comprehensive permit. Mass Housing rarely denies my application for the ticket. Once I receive the project eligibility letter, I can then apply to the Board of Appeals for a comprehensive permit. Once I have the PE letter, it's good for at least two years, although we know historically Mass Housing will continually renew and extend that two-year period. The ticket is Mass Housing's first cut at the project plans, the project details. But I'll tell you, and I'm not shy about saying this, Mass Housing does a cursory job. They don't look in detail. They rarely will walk the site or if they will walk the site, they do it as a matter of an hour or two. They're not there to render any judgment on the project. They're gonna leave that to you, to the Board of Appeals. Their gatekeeper role, as they've called themselves, is pretty nominal. And there's a lot of support for that. I'm not being critical, I'm just saying you cannot rely on Mass Housing to do the due diligence that the Board is gonna need to do for every project. They will not do that for you. They issue project eligibility letters routinely and they give it a very, very sufficient review. Comprehensive permit statute is just chalk full of deadlines and ones that the Board really needs to watch for because many, many cities and towns, including sophisticated towns, including very rural towns, will run afoul of these deadlines just because, again, it's somewhat counterintuitive and they happen quite quickly. So let's just go through a few of them and then we can always revisit these. Once the application is made to the Board and filed with the town clerk, the Board has 30 days, 30 calendar days, to open the public hearing. If you don't, you run the risk of a constructive grant which, of course, is not something any Board wants to have happen. Now we do know, based on the Governor's order of March, we do know that there has been a tolling of deadlines, but I advise every municipal body that gets a new application to ask the applicant to give that body an extension of time for which, or within which it must hold that public hearing. And unless your Board is ready to hold the public hearing within 30 days, for example, if I were to file today, then you would want to ask me for an extension because cities and towns are really not ready for this right now. We will be hopefully in June, maybe in July, but that's totally up to you. Very few applicants are unwilling to provide that extension. If they don't provide it, then you must open the hearing within 30 days. Once the application comes in the door, the Board knows it must advertise pursuant to Chapter 40A, which is the Zoning Act, Section 11, which provides the standards of both notice and advertising a notice to consecutive weeks prior to the hearing, a butter notification within 300 feet. The public hearing, once you open it, must be closed within 180 days, 180 calendar days, another conflict with the statute unless extended by mutual agreement with the applicant. Once the hearing is closed, and again, unless there's an extension, the Board must render a written decision within 40 days of the close of the hearing. And I'm gonna come back to these deadlines in a moment, we can create a timeline and I think will be very, very helpful. The assertion of safe harbor, which is a synonym for consistent with local needs. So the statute uses the phrase consistent with local needs. The regulations introduce a new phrase called safe harbor. You should treat them as synonyms. In order to benefit from being at 10% or 1.5% or planned production, you must invoke the town status within 15 days of the opening of the public hearing. This conflicts horribly with the statute and it puts boards of appeals in a tremendously compromised position, especially small cities and towns that don't have staff or that don't meet often, for example, in the summer. So I wanna just focus on this because Amherst has achieved what less than half the cities and towns in the Commonwealth have achieved, consistent with local needs. So you wanna protect that status. The only way to protect it is you must announce it. You must invoke it within 15 days of the opening of the public hearing. You must notify the applicant in writing and DHCD. And I'm happy to help you do that when the time comes but it requires the board to take a vote. And it's particularly problematic in cities and towns that are relying on the 1.5% assertion because that takes weeks worth of staff time to do the analysis that's required. In Amherst's case, you're in much better shape because the 10% is a fact. We know it because it's listed on the state's SHI. John? John, can I ask you? Oh, go ahead, Keith. Go ahead, Keith. Just a question about that. You said that that has to be stated 15 days before the meeting takes place. 15 days, can I just interrupt? 15 days after the opening of the public hearing. After the opening of the public hearing. Yes. Well, what was the 15 days before? You said we had to vote on the safe harbor status, asserting the safe harbor status, but we can't do that except at a public meeting. Correct, so that's right. So let's assume that I filed an application for a comprehensive permit with the board 14 days ago. Tonight's the 15th day. You would have to assert the board's belief that the town is at safe harbor today within 15 days of the opening of the public hearing. Of the opening of the public hearing. Yes. But how do we do that if we can't vote except in a public meeting? That's the problem. So once you open that hearing, you only have 15 days to assert safe harbor. Okay. This is Peter, I'm confused. Is, do you mean that once the town receives the application, we have 15 days? Or once the ZBA meets, we have 15 days? Once the ZBA opens the public hearing, you have 15 days. Okay, as could, for example, could you make the first action at a public hearing and assertion of safe harbor? Yes, and that's what I'd recommend. So this is why you're in a better position in a lot of municipalities that need a lot of data to support it. We know the status of the town. So what I would advise the board once you open the hearing, the first item is for the board to vote to assert the 10% status. John. Steve, I think you're on, your mic is off. Can you hear me now? Yes, yes. So the importance of asserting it is not just because we think, because we can have concerns about the project. The importance of this is that it keeps our options open for this throughout this process and through future processes. Is that right? Well, so half right. So that's what makes it interesting. You have to assert safe harbor each and every application. It doesn't run with the land, so to speak. You have to assert it each and every time. And the main reason to assert it is not because you don't like the project. You haven't even discussed the project. It's just to preserve your rights against an appeal. And one of the misnomers in the development community out there, which most developers know is untrue, but they state this anyways, is if you assert safe harbor, it means the project's gonna get denied. Well, that's just wrong and misleading. Asserting safe harbor doesn't mean you're gonna deny it. It doesn't mean you're gonna impose unreasonable conditions. It just means you are protecting yourself in case things go south. It means you're protecting yourself against conditions being challenged if the board chooses to impose conditions. It does not signal to a developer, it should not be signaling to a developer what the board's predisposition of the project is. That's the problem with the regs conflicting with the statute. Under the statute, you don't have to invoke safe harbor until right before the close of the hearing, which is months, months, months after you open the hearing. Under the regs, you have to invoke safe harbor within 15 days of the opening of the hearing. Six months, eight months earlier than the statute says. So you're in a bad position. And my advice to cities and towns is you're in such a bad position, take advantage of safe harbor and then adjudicate on the application in the normal course, protect your rights. And that's what- John, it's Peter. How does it come about that the regulations and the statute are in conflict? So, I'll give you my personal opinion. It's somewhat subjective. So the Department of Housing and Community Development is in the business of creating additional housing. That's what they do and that's what they should do. And they have adopted regulations over the past 40 years in fear of reopening the statute because the fear is if 40B is reopened, the legislature might pull the plug on it. So they have done everything by regulation and not by statute. And we see that on a national level and we're certainly seeing it here is the power of administrative agencies. There has been very few attempts to litigate this conflict. There are several cases pending right now that are litigating that conflict, but we don't have an answer yet. So every time DHCD has promulgated new regulations, the most recent batch, the big ones in 2008, there were several instances where the statute and the regs are in conflict and in part it's the fear of reopening the statute. Remember that the board must make a decision within 15 days of the opening. And I'm not saying to the board what that decision should be. I'm just reminding the board, if you don't do it, you'll lose that opportunity. So it's a real classic kind of use it or lose it. And because that 15 days happens so quickly and because boards don't often meet every week, you do need to be prepared to invoke that status at that opening public meeting. So John, when you say that you need to make a decision, you're talking about making a decision on invoking the safe harbor status. Exactly, exactly. You're not at this point, if we're 15 days into the public hearing, we haven't reviewed the project. We have no peer review reports. We probably don't have staff reports. We're focusing solely on safe harbor. You are, are you- Hop in for a sec. I understand that correct with safe harbor. We have to know in fact that we do have, if we're under that 10% threshold, do we, we cannot in state safe harbor? Like correct about that? Correct. If you're not at the 10%, you can't in good faith invoke 10%, you would then go down the list. Are you at plan production? Do you have the 1.5%? I mean, like to say, there are seven ways of achieving safe harbor, but no, if you're at 9% based on recent census data and you don't believe that's an error, then you wouldn't invoke on something that wasn't factually correct. That's right. That's right. And are you suggesting that at every public meeting of the ZBA, public hearing of the ZBA that this be invoked and voted on to begin a meeting? For every project, you need to re-invoke it. So if you invoke it against my project today, and then three weeks from now I file for another project, you'd have to invoke it against that one, and then somebody else five weeks later. The invocation runs with the project. So you'd only invoke it against me once for this project. If I file a new project, you'd have to invoke it for that project. This is only related to the importance of permits and not to other applications. Correct, and excellent question. And that, again, you're not thinking like you're issuing a special permit or a variance here. For ZBA members who've done this for a long time, this is really not the way you're accustomed to thinking. Since when do you ever have to invoke something as part of a variance application or a special permit application? This puts a lot more initial burden on the boards. And John, one other thing that I think was an answer to Craig's question, this doesn't have to be done at every single meeting that we have. It just has to be done once on a particular comprehensive permit. Correct, for each comprehensive permit, within 15 days, applicants is notified in writing certified mail. DHCD is noted in by writing certified mail. Then you're done, you don't have to raise it for that project ever again. Thank you. Sure, of course. So now kind of digging down a little deeper, applicants has filed, the board has determined whether or not to invoke safe harbor, the hearing is open. And now the question is, how does this project get constructed? Assuming the board wants to approve it or approve it with conditions. Most comprehensive permits, not all, but most 90% require waivers from local regulations. In fact, one of the cornerstones of what a comprehensive permit is is a request for waiving, mostly zoning, but often subdivision regulations, stormwater regulations, the local wetlands bylaws, sign code, so the list goes on and on. The waivers can be granted by the board of appeals if, but for the waiver, the project will not be uneconomic. So I know that makes no sense at all, we'll back up in a second. When I apply for a variance, you're granting me a variance. A waiver is not a variance. And that's often why when I hear boards of appeals talk about variance applications and the board uses the phrase waiver, I kind of go a little crazy. A variance is a variance, 48 section 10. A waiver is not a variance. A waiver is a request by the applicant based on height, setback, density, anything I need relief from under zoning. Under 40B, the test is not the test under 40A section 10, those three conjunctive criteria that you wrestle with under section 10. The waiver is, is the waiver needed to keep the project from becoming uneconomic. And I call it the but for test. But for the waiver, would the project be uneconomic? And remember, if you're not consistent with local needs, uneconomic means it's gonna get appeal to the housing appeals committee. And we're gonna talk about that in a few moments. The waiver is needed to keep the project from being uneconomic. If you are consistent with local needs, now the question is, what standard does the Board of Appeals apply? And the only standard, frankly, that you can apply is, is this waiver really necessary, rationally required for the project as applied for? Because you're consistent with local needs, because you're over 10%, the Board should grant a waiver of local rules and regulations, only if that waiver is necessary to build the project that you believe should be built. And that becomes really, really important because it may be that the Board wants to grant a waiver on the dead end road requirement, but refuses to grant a waiver on setback or height or a waiver from the local wetlands bylaw. So being consistent with local needs by asserting safe harbor gives the Board total control, but now when we're talking about waivers, gives the Board control over waivers that you might not want to grant for appropriate reasons. And it's important to remember that most 40B applications are gonna have a waiver list, a list of waivers required. Many developers, especially developers that haven't thought this through will ask for a blanket waiver. And my opinion is that's totally unacceptable. The applicant has to enumerate, articulate what waivers they want. It's not up to the Board of Appeals to fashion the project for them. So it's important to review the waiver list and then the Board will have to go through the waiver list to determine which waivers need to be granted to support the project if the Board supports it or which waivers should be denied because they are grossly inconsistent with the plan for the town, abutting properties, impact on wetlands or wildlife, whatever it may be. The waiver process is really, really important because so much of the comprehensive permit approach is coming in with an application that doesn't meet what town meeting has adopted or town council has adopted all these years. So again, it's probably 90% of comprehensive permits need some sort of waivers, some sort of relief. Don't think about it as a variance because if you think about it as a variance, you won't be able to grant any waivers because of the criteria of granting a variance. These are not variances even though as Boards of Appeals members, you're thinking about them as variances. These are waivers from local rules and regulations. Now this all ties back to what can't you do? You cannot grant a waiver to Title V, the state sanitary code. You can't grant a waiver to the state building code and you cannot grant a waiver to the Wetlands Protection Act. So those are the three non-waivable powers of the Board. Anything local, however, is waivable. And broad picture, zoning, subdivision regulations, local wetlands bylaw, sign code, site plan review, things like that. So one of the things that you'll have to wrestle with for any comprehensive permit application while you're consistent with local needs is how to determine what should be waived and what shouldn't. In cities and towns that are not consistent with local needs, it's the but for test. You don't have to struggle with the but for test because you're consistent with local needs. You're gonna struggle with it from a site planning and design perspective and impact on the quality of life in terms of the abutting properties, in terms of traffic and public safety. So you're gonna be acting in a much more of a planning capacity where many cities and towns are stuck having to do this economic, uneconomic analysis. Let me stop there for a second and just see how we're doing. Does everybody okay with me on that? Questions on the whole waiver process? Remember, it's not a variance, it's a waiver and we're gonna have a separate section in your decision. Waivers from local regulations and those will be enumerated. John, it's Keith here. Hi Keith. Could you just then give us, you keep saying that the waiver is not a variance. What is then a variance? A variance is a request under the Zoning Act for relief from either dimension or use. So there's two types of variances. I don't believe Amherst allows use variances, but I haven't checked that in a while. So I apply for a dimensional variance. So you have a 35 foot height limit and I wanna go to 45 feet. You have a 30 foot front yard setback requirement. I wanna build at 20 feet. In order to get those dimensional variances, those dimensional reliefs, the Board of Appeals has to make three conjunctive findings before the Board can lawfully grant variances. And I'll say kind of off the record, boards of appeals across the country grant variances a lot, in part because it's common sense to give me a two foot sideline variance if no one in the neighborhood complains. Truth be told, they're very hard to defend in court because the Massachusetts statute is so rigid. So in order to get a variance, I have to show that there's something wrong with the soil or the shape or the topography of the parcel that the variance is needed to protect from a hardship financial or otherwise, and the variance can be granted without derogating from the intent of the bylaw. The first two are impossible because I can rarely show there's something unique about the parcel that leads to a hardship. And then the third is even more impossible because town meeting or town council has adopted this setback requirement or height requirement. So how does it not derogate from the intent of the bylaw? So that's a variance. And again, it's just a whole different process because the court will always protect the Board of Appeals denial of a variance based on the rigidity of the statute. It's just the opposite here with 40p. So waivers to local rules and regulations, anything that doesn't fit one of those three exceptions, the Board may properly grant a waiver if you believe it's appropriate for the project. One other piece while before we go to the next slide, the comprehensive permit regulations in 2008 were revised to allow non-residential uses as part of a comprehensive permits, a very controversial part of the 2008 revisions. The phraseology in the regs say that it has to be ancillary. Can't be a primary use. And there's been a fair bit of litigation on that subject. But don't be shocked or surprised if you see a comprehensive permit application, say for 20 or 40 housing units that has 10,000 square feet of ground floor that's gonna be retail or non-residential. That is possible under the regs, not under the statute, but it under the regs. And we have seen that work in some cases. So don't be surprised if that happens, if you happen to talk further about that if you'd like. Back to the definition of consistent with local needs. So I cite to 40p section 20 and that's one of the handouts that Maureen sent to the Board. So that handout includes two things. One is the statute as exhibit one and exhibit two are the regulations. The statute hasn't changed since its inception, the regulations change frequently, but I sent them all to you, so you have that. And this is a quote from 40p section 20, which by the way is only three pages long. So the statute that is controlling this complicated process is three pages long. And it really kind of just shows how important it is for the legislature to update the statute and it has refused to do so. This definition is consistent with local needs. And what we're really focusing on, the reason I wanted to show you this statute or the section is the latter portion of it, which is the phrase to promote better site and building design in relation to the surroundings or to preserve open spaces. And by doing this, the legislature intentionally narrowed the scope of Board of Appeals review. You're focusing on these things and these things only. Health and safety on the third line from the bottom and then site design and open space on the last two lines. Being consistent with local needs is critical if you wanna go beyond this scope. If the Board wants to look more broadly at impacts of a particular comprehensive permit, you can do so only if you demonstrate consistent with local needs, meaning being at safe harbor. So by being at safe harbor, the Board of Appeals can take this definition, which is a limiting definition and expand it tremendously. And that's why you want to invoke safe harbor each and every time because it gives you power that you wouldn't otherwise have. It's really, really important. The project economics is important again because of the way the statutory scheme works. A developer who claims that the project has been rendered uneconomic will succeed at an appeal to the Housing Appeals Committee. The way to prevent an appeal to the Housing Appeals Committee is to invoke safe harbor. The reason you wanna see the pro forma, which is the definition of project economics as submitted by the applicant is so the Board can get a sense of whether you're imposing conditions on a project that would literally break the project. So now I'm not talking about it from a litigious perspective. I'm talking about it as an informative perspective. When a developer submits a project pro forma, they are showing to the Board where their revenue is coming from, the sale or rental of units and where their costs are being incurred, land costs, construction costs, carrying costs. That project pro forma is important information to the Board of Appeals. And one of the interesting things going back to the variance question, if I apply for a variance, you would not be allowed to ask me how much money I'm gonna make, how much money I'm gonna lose. If I apply for a special permit, you couldn't ask those questions, but you do get to ask those questions as part of a comprehensive permit. And the reason why it's relevant is because it provides the Board with a sense of can we require more offsite improvements? Can we require a left turn lane? Can we require better landscaping? Can we require a reduction in density? For a project that you want to support, you need to know what is too much? How far can you push an applicant? And I'm not saying that in an aggressive way, I'm saying it in a planning way. If you're not consistent with local needs, you absolutely need to know that number because if you make the project uneconomic, you'll lose at the Housing Appeals Committee. Being consistent with local needs, you still need to know project economics, so you have a sense of how far you can push me to, for lack of a better way of saying it. How much can you extract from me? How much open space? How many offsite improvements? How many more units could you negotiate down if density is an issue? If none of those things are an issue, then the project economics are not at all relevant, but almost always they are. And I don't need to say this to the board. Most developers apply for more than they want because they know they're gonna be negotiated and that's the hallmark of 40B. I'm not saying that happens all the time, it happens more often than not. So you're entitled to know what the bottom line is. I'd be careful with it, don't use it as a weapon, but it's an important part of the knowledge base that the board members need to know. And let me just take another minute and talk about an example. Let's say I'm a board member who's particularly interested in landscaping. I'm a landscape architect. This is something that's very important to me and I wanna buffer the neighbors from a 20 unit, 50 unit housing development. I wanna ask the developer to expand their landscaping program by adding $50,000, $100,000 worth of shade trees. Developers gonna cry foul. Well, is it true or not? Can you afford another $50,000 to $75,000 of landscaping? The project pro forma is gonna give us the answer. Now again, I use it carefully, but it's information that the board's entitled to, even being consistent with local needs. I'm guessing many of you have reviewed a pro forma before. They're a snapshot in time, they don't reflect changing conditions, but they are an important and an essential ingredient as part of a comprehensive permit review. Now, there'll be those who will tell you that you cannot review the pro forma until the end of the process. And I will tell you that if you're consistent with local needs, you can do what you want to make this a better project at any time. Being consistent with local needs is a game changer. The regulations that are designed to punish cities and towns for being less than 10% subsidized housing inventory do not apply if you're over it. And I'm not saying you're acting out of the norm or in bad faith by requiring the project pro forma early on and looking at it with some scrutiny to determine how best to negotiate a project. You are entitled to that information and you're entitled to it as a matter of law not withstanding what the regulations say because the regulations say you can't look at the project pro forma until the end of the process. That doesn't apply to cities and towns that are consistent with local needs. Everybody okay with that? Yeah, okay. So let's talk about using consultants, peer review consultants. So one of the, I think one of the best statutory provisions we have in Massachusetts in the land use world is chapter 44, section 53G. I don't know how often the board has used it and I urge you to use it a lot. It is a statutory scheme that allows boards of appeals, planning boards, select boards, conservation commissions to take my money, the applicant's money to hire third party consultants, engineers, architects, landscape architects, hydrologists, wetlands biologists to hire them to work for you and I pay for it. I pay for it, but I give the money to the town. The town puts it in a dedicated fund which the town has set up and the board spends my money and you spend my money on consultants that you have told me you're going to hire and I have not objected and I've paid into this fund to provide third party peer review services. Now, depending on the community will depend on what services you want and need. So sophisticated larger communities that have a lot of staff need less outside assistance. Smaller or more rural towns that have no staff need a lot more assistance. That's totally your call. Even when you have a sophisticated planning department as you do or engineering department, which you do, you still may want to go to a third party reviewer. That's totally within the board's control. The only service you cannot avail yourself for or to is legal services because that was perceived as being used to thwart 40B projects. So you can hire virtually any professional consultant that is relevant to the application before you using this statutory scheme. If I'm the applicant, I can only object under one of two grounds. The consultant you want to hire isn't competent or the consultant has a conflict of interest. Beyond that, there's nothing I can do to stop you. You're entitled to take my money and to spend it. How much money should you take? You know, you'd be reasonable. You can get a quote from an engineer. What will it take to review these plans? The engineer will say between five and seven grand, you take five or $7,000. Any money that's not spent is returned pursuant to the statute back to the applicant. If it's a complicated project and you need to hire five different peer reviewers, then you hire five different peer reviewers, five times five, 25,000, five times seven, 35,000. Any money not spent is returned. The consultant cannot start work until the money is deposited with the town. It's just a matter of municipal finance. The town cannot incur any exposure financially until the money is in hand. So it is a normative process. Every developer in 40A world, in 40B world, even in the subject control law, is accustomed to paying these sums. Boards rarely abuse this process. It's very helpful to the board and it can be very helpful to the developer. So it is a very functional process. It's important in the 40B context, though, because the plans that you'll receive in 99% of comprehensive permit projects will be preliminary. I won't say incomplete because that sounds like I'm insulting the applicants and I'm not trying to do that. They will be preliminary. And that's kind of a logical approach. Very few developers want to spend money on final plans, only to get denied by a board of appeals. So you're gonna see preliminary plans and all the more reason why you want to use third party outside consultants. So I urge you to do that, not just for 40B world, but in special permits or variance applications as well. When relevant, you decide and only the board of appeals decides. Any questions on that in terms of peer review? John, it's key. When does that process begin? Because once we have opened the meeting, we have 180 days to complete the process. So once we say we want, let's say an engineer and they have to give the money to the town, then we get the engineer, then they do their preliminary work and then they give us a report. I mean, that could be three months down the road. Right, yeah, that's a really important question. So you wanna do it as early on as possible. So sometimes you can do it during the opening of the hearing. And so let's, for example, let's say that all of us, the ones I'm looking at on the screen, we're all on the ZBA, we get a 60 unit comprehensive permit application. So it's very surficial. We look at it and we just pull among ourselves, well, it looks like we're gonna need a transportation engineer because it's a traffic generation. Looks like we could probably benefit from an architect based on views and vistas. Looks like we're gonna have a groundwater, perhaps a groundwater or surface water issue. Let's hire a hydrogeologist or hydrologist. So I think we could get probably the bulk of who we need on board quickly and then we can always require more consultants later. Your point is an important one. If we don't get that information in time, we're gonna ask the applicant for an extension because that 180 day clock happens really quickly. So if the market's crazy again and you can't find a consultant or an engineer is gonna get back to you for three months, that's gonna be a problem, but it's not gonna be your problem. It's really the problem of the board and the applicant. You know what? We need an extension for two more months. The way to avoid that sometimes is to articulate who you want and who you need early on, but the question you're raising is unavoidable. It may very well be. We see it a lot in cities and towns on pro-former review because they're not consistent with local needs. They need to wait till the end of the process. They only have a month left on 180 days. Now we're gonna hire an accountant to do a pro-former review. We're gonna run out of time. So we ask the applicant for an extension. I mean, I'll tell you, there are plenty of applicants out there that will deny you an extension. Being consistent with local needs, that's not gonna happen. An applicant that denies a community an extension that's consistent with local needs faces a certain denial with no appeal. So you have leverage that most communities do not have, but that's a really important question. You can kind of create the shortlist now. And I don't know this, but I suspect this, the town probably already has a shortlist. There's already consultants that municipal boards are using. Folks that engineers you like and have had good experience with, architects you've had good experience with, this doesn't require a 30B competitive bidding process. So you don't have to go through the typically elongated process and you probably already have a list of folks you'd like to work and feel comfortable with. Let me just ask one more thing. My understanding, having been on the board and worked with it, is that we are not allowed to discuss any project except in the public hearing and or meeting. Sometimes we get the application two to three days before the opening of the hearing. I guess I feel a little frustrated in that if we are going to have to hire an engineer, let's say, we can't start that process until the first hearing. And do we then as a board in that hearing discuss the fact of whether we need an engineer and who we're going to get? Maureen, do you have names? Does the town have names that we go immediately to to make this process go as fast as possible? I guess I'm just a little concerned about how we really do that without spending a lot of time. Or I mean, the town staff certainly does have a list of consultants for different disciplines that could possibly come into play. That we could reach out to, sure. And so if there was a discussion at a public hearing by the board that the board decided that there does need to be a peer review reviewer, we would already generate a list of possible consultants for the board to consider. You suggested that we would need to ask for the funds for this at the beginning of the process. Yes. How do you determine what the amount is? And if you discovered later on as you suggested that an accountant is needed additionally, can you ask for more funds as time goes on? Great question. So start with a low number just because so as a good rule of thumb, I say five to seven grand, five to 7,500 per discipline, you can always require more. Some communities wait until 50% of that fund is used and then ask for a replenishment. And three months down the road, you realize, oh, you know what? We really could use a hydrologist here. There's some serious surface water issues. Then you require me to pay another five grand for the purpose of hiring a hydrologist. So you do not have to commit at that first hearing. I think you want to lay out as much of the scope of what will be needed as soon as possible so I can pay you the money, but you don't have to be perfect right off the bat. Things are gonna develop over time. And I'll tell you one thing that I have seen is especially in complicated engineering projects where the board wants a second opinion. And so you hire XYZ firm on day one and then you wanna hire ABC firm on day 30 and that's also permissible. As long as the board's not abusing it, which you won't, the applicant is gonna pay. In part, if for no other reason, the statutory scheme is so municipal friendly. It's one of the few out there. That's why I say it's one of the best statutory schemes out there for cities and towns. It does not leave me any room to challenge you. And the challenge on a conflict of interest or unqualifications of the consultant goes to the select board. And what select board isn't gonna have the back of the board of appeals is the theory. So most, I've never seen a developer other than put up an initial fight. Really, that's too much money. I've never seen a developer challenged to the select board. It does not make sense. It's gonna be a loss of time. It's gonna antagonize you. You're not asking for money to go into the town coffers. You're asking for money to help vet a project to help support town staff or to fill in a void where town staff doesn't have that expertise. John, we don't need to have the precise amount when we first ask for it. We can add to that later on, but we need a good idea of what it would be a good faith estimate of what the cost would be and act on that and can change it as a condition point. Exactly, exactly, exactly. Sometimes your desired consultant will tell you, oh yeah, I can do that review for five grand. Shouldn't be any more than that. Sometimes the consultants will say, geez, I don't know, we're really busy. And then you say, I'm gonna ask for five to seven. You go through three real quickly. We need more money. The one thing to remember, and this Maureen's gonna keep track of this just because this is within her wheelhouse and so the board shouldn't have to worry about it, but you just cannot have a consultant do work without the money in the town's hands. That's the only risk that some boards run into. It doesn't happen very often. But I really urge the board to take advantage of this. It is in your best interest. And the other thing we found, and Maureen, I don't know if you've had this experience, we found cities and towns have used this process to kind of grab folks from elsewhere. So sometimes the, I used to own an engineering business. Horsley and Whitten was my firm. They're still around, mid-sized engineering firm. And what we would do oftentimes is provide consulting services way out of our network because a town wanted to bring in somebody fresh, someone who didn't have a relationship with the developer, the project developers engineer or the project developers hydrologist. So it's something you could consider. You could bring in an engineering firm for New York for all that matters. It really doesn't matter. You have that power. And it's really to help you formulate a better decision. John, can I raise, Peter, can I raise a question of process? Yes. I know that members of the board can't discuss a project with one another outside of the meeting. But could Steve as chair of the board have a conversation with Maureen before the first meeting about the question of whether or not there might be a need for consulting help? Yeah, great question. So the cardinal role is the board can always, always speak to staff at any time as long as it's not a stringed conversation. So the chair could not email Maureen, copy to the remaining board members in a deliberative, with a deliberative question. The board members can always communicate in a group if we're talking about matters, what time is the meeting? I'm gonna be late. Sorry, I didn't know you weren't gonna attend. That's perfectly fine. The rule is deliberation. The board cannot deliberate. You can always talk to counsel and that is not deliberation, it's seeking advice and you can always talk to staff. So all the board members can reach out to Maureen. It'll drive Maureen crazy, right? But you can call Maureen anytime of the day, right? Anytime of the day, seven days a week and it will never be an open meeting while in violation. Thank you. The decision is now where we are because we've had peer review, we've had this iterative public hearing process and now the board is ready to close the hearing. How does the board know when to close the hearing? The board knows when to close the hearing when the board believes it has sufficient information and that's not news to any of you. You know that sitting on other matters. When have we exhausted public comment? When have we exhausted the applicant's submission? When have we learned enough? When has things started to become repetitive? So the board, once it's ready, closes the hearing. Here's the rules on closing. When you close the hearing, you are closing the hearing both for oral testimony but also for written testimony. So you don't wanna close the hearing if the public has yet to submit comments or your peer review engineers have yet to submit comments or you're seeking further material from the applicant. Be careful on that. You can close the hearing for comments, oral comments and allow the record to remain open for written comments but that generally works against the public. Totally unintentionally, you don't mean to do that but often time when the written record remains open, it plays to the advantage of the applicant to the disadvantage of the public. So you wanna think about that and that's only the board's call but once you close either oral or written or both portions of the hearing, it's closed, you cannot take new testimony. Now the exception that we just talked about still applies. You can always take testimony from staff and you can always take testimony from counsel. Always even with the hearing closed and of course that's what's gonna happen. When you close the hearing, you're gonna be relying on Maureen. You'll be relying on me to the extent I can be helpful. So you always can take testimony from staff and counsel even though the hearing is closed. When the hearing is closed, the board will have 40 days, 40 calendar days to render a decision. Most boards take pretty close to that full amount of time. If you need more time, you're gonna need an extension from the applicant. Once the application hearing is closed, the decision is rendered, that decision gets filed with the town clerk and it has to be filed within 14 days of the rendering of the decision and that's consistent with 40 A as well in case law. So be careful on that because any mistake on these procedural time clocks is a constructive approval. We open within 30 days of receiving the application. Within 15 days of opening, we assert safe harbor. Within 180 days of opening, we close. Within 40 days of the close, we render a decision and within 14 days of the rendering of the decision, we record with the town clerk. That's the timeline. When we record with the town clerk, it creates an appeal process that you're all familiar with under 40 A. It's the same under 40 B. And here's where 40 B and 40 A merge. For the purposes of an appeal under 40 A, it's 20 days from the filing with the town clerk. The complaint must be filed with the county court or the land court and with the town clerk. Within 20 days, I must file my appeal with the court and a notice of appeal with the town clerk. Both are required, 20 calendar days. In the case where the municipality is consistent with local needs, there will be no appeal to the housing appeals committee from the developer of your decision but there could be an appeal to the courts buying a butter. And that is why the board needs to be very careful, of course, in terms of all these procedural requirements because while you might not be challenged by a developer because of consistent with local needs, that status doesn't protect the board from an appeal from an abutter. The abutters appeal goes to court. The developer's appeal, if it has one, goes to the housing appeals committee. If both appeal, the abutter's appeal is automatically stayed pending the resolution of the developer's appeal. And that's a case that I had at the Supreme Judicial Court called Taylor v. Lexington which is an interesting case because in the communities that are not consistent with local needs, we see the developer appeal and we see the abutter's appeal and the process can take five, six, seven years. Where there's no developer appeal, it will be a standard traditional appeal similar to what the board faces when you are appealed on a variance or a special permit. Is everybody okay with that? The HAC appeal always goes first to the extent that both appeals happen. And the reason why I mentioned this is when you assert safe harbor, you are keeping this kind of two prong approach from happening. If you don't assert safe harbor, then the developer has an appeal of your decision to the housing appeals committee. And remember back to the beginning, you must do or play that assertion within 15 days of the opening of the hearing. So there's a lot at stake on that 15 day time clock. So I know we keep repeating it, but I can't emphasize it enough because so many things can happen if you don't assert safe harbor. So let me stop there and Mr. Chairman or Maureen, just kind of maybe turn it back to you. Thank you very much, John. This is the thing where I'm a planner with the town. I just wanted to, I've been listening, sorry I've also been hiding. The one thing that John didn't mention, maybe he did, I stepped out for a minute, was that I've sat in on a few comprehensive permits for the town. And one thing that the town does is keeps the hearing open while the decision is being crafted. And because it's different than a typical special permit, especially with the waivers and everything, we found that we keep the hearing open to allow the applicant to provide more information if it's necessary and to craft the decision waivers that the board agrees with and the applicant can agree with. Just so we're not closing the hearing and then finding we have to reopen because more information is needed. So that's something we've done in the past and I know it's different than what the ZBA typically does in terms of closing the hearing and then writing a decision. We typically, the comprehensive permits tries to keep, we try to keep the hearing open while that's happening. John, if that's what you think. No, and Nathaniel, that's an excellent suggestion. And I would say if the applicant is willing to allow you to do that, if you're running up against the 180 days, absolutely. There's never any harm to closing the hearing unless you're dealing with an applicant who is kind of keeps burying the town with irrelevant material and I've seen that happen. It's just kind of overloading the board. But no, if you have an applicant who's willing to extend the 180 days, keep the hearing open, the chair can set rules in terms of when filings need to be made, absolutely. And Nathaniel, it kind of goes back to, I think the local rules as well because the articulation of local rules will require the applicant to file the materials that the rules require be filed. Meaning, you won't have to be asking two months later, hey, where's that traffic report or where's that hydraulic analysis because it was part of what they had to file to begin with. But totally agree with you, keeping the hearing open until the decision is crafted and allowing the applicant to comment on the decision is not a crazy idea if it's a negotiable project. If it's a project that the board wants to support, then why not have the applicant and the public comment on your draft decision? That's a great suggestion, yes. John, one of the things that we've attempted to do is to create a timeline and for advanced filing of papers to the board for special permit decisions so that we're not dumped on with a lot of paper with a day or two to go up before the meeting to give us time to digest it, to study it. If we wanna apply the same kind of requirements in this process, do they have to be specified in the bylaws or the laws or the regulations of the zoning board of appeals or can we just refer back to the practice that we've stated publicly that things should be handed in a week ahead of time so we can review them? So you can do both, not to be cynical, but they're ignored all the time, right? And I'm sure the board has seen people show up with last minute filings and then you've stuck with what are we gonna do about it? I think it's worth the effort, I really do. And I think it makes a lot of sense and it's fair to the public to know they can go to town hall the week before to see everything that's been filed. I would do both. I think articulating it as a policy makes sense, but I would put it in your comprehensive rules and regs. And then the one time there's a developer that just won't play ball, you can point to those rules and regs as a basis for a denial, for example. I would do both, I would do both. Anybody else with questions of John? There's a lot there in your presentation and your slides would be really helpful for us to review. And I just think there's an awful lot here for us to digest. And so people may not have questions, but they may need to have, they may have questions that they wanna ask Christine or Maureen in the future. And I'd encourage them to do that. But are there any questions right now? Anybody with questions right now before we? Looks like Chris has a question. Go ahead, Chris. Go ahead, Chris, yeah. So my question is that the last time we went through a 40B process, we had an attorney from Copeland and Page who accompanied us to all the public hearings and advised us along the way. And then at the end helped us put a decision together. So may we expect that if we receive a comprehensive permit application, would you be able to help us put a decision together? Yeah, I'd be happy to. And the same thing with the comprehensive permit rules. There are a lot of good ones out there that I'll forward to Maureen and happy to help you make it work for you. Certainly with the decision, yes. Okay, thank you. John, do we have to have, if we want to amend our rules, do we have to have that done before we receive an application for a comprehensive permit and to have those new rules apply to that comprehensive permit or can we, we can't change the rules in the middle after we've already received an application, I expect. Correct, you should adopt rules as soon as the board has time to do it. And yeah, because you can't apply them retroactively. I had a question about work sessions. In the material that we received, it talked about how there's an opportunity for one member of the ZVA to sit down and work through technical questions, either with the developer or the developer's representatives. Is that correct? Is there a way to do that? Or that seemed to me to be a gray area that I would be helpful if you could discuss that. Sure, so a lot of folks in the 40B community will disagree with me on that. So I'm gonna give you my opinion. I think only in rare circumstances is it prudent to recommend to have one board member meet with the developer's agents to work out matters. And the reason why is it's human nature. This is a public process. And every time one board member is sequestered with a developer's agent, that board member is not hearing their colleagues opinion. That board member is not being persuaded because you're being persuaded, but you're listening to only one side and you're not getting staff's input. You're not getting other input. So I would urge the board to use that very infrequently. There may be times where it's more procedural than substantive, but we hold public hearings for a reason to allow the public to participate or at least listen. And the public is shut out of these meetings. Now I have heard and I know where that comes from. It comes from the MHP handbook. MHP is a big fan of that, but we know how it works. Their position is, well, the board chair will or the board member will report as to what took place in that meeting. That's only half of what took place because the board member isn't gonna be able to give a verbatim transcript of what took place. And that board member is now vested in the process of working with the consultants for the applicant. My advice to board members is don't do it. I think it puts the board member in an uncomfortable position. I think it puts the remaining board members in an uncomfortable position because they weren't there. And I'll also say I have not seen it thwart or slow the process down. There's no reason why this conversation can't be held during the public hearing process. And that's why you have staff. If the technical experts wanna meet with staff, then staff can provide a report to the full board as opposed to one board member who's now carrying that burden of having to report back. I think it puts the board members in an unnecessary position. I would urge against it. There's no open meeting law violation if it's just one member, but it still puts that particular board member, I think, in an unnecessary position. John, it's Keith again. In conjunction with that, I remember reading in the handbook that at a work session, like we're just discussing, there can be one board member who is a participant, but there can be other board members who are not allowed to participate, but can be present. The other thing that I remember reading is that it states that anyone can record any meeting at any time, as long as it doesn't interrupt the meeting. Could that board member then record the work session so that they have a verbatim record of what happened? So the board member could, Massachusetts has some pretty strict rules on recording meetings. So with everyone's permission, the board member could have a recording of what took place, yes. But the first part of your question is, could you have more than one board member there? And my answer is no, that's an open meeting law violation because that would constitute a subcommittee. Subcommittee meetings must be posted under the open meeting law. And in my opinion, the subcommittee is more than one. And you'll hear others say, no, no, no, you can have two. And the answer respectfully is that's wrong. Two members of this board constitute a quorum, excuse me, not quorum, but constitute a subcommittee. And a subcommittee like a quorum requires posting. So yes, there could be subcommittees to meet to review this matter as long as it's posted. But the MHP manual and others are trying to get away from the posted public meeting. And that's the part that we run into trouble with. On the recording part, yeah, I think if the one board member who attends records the entire matter subject to the approval of all those in attendance and that's helpful. Yes, but I would still, you kind of sense my hesitancy there, that's still not the same as requiring me to present everything to the full board and have the full board be able to ask questions. This is Nate. I'm just gonna jump in again. Yeah, well, we've also done with a comprehensive permit, staff likes to have the ZBA set aside a schedule just for the comprehensive permit project because it can be really involved. So, we'd like to set a schedule where the meeting dates are just for this, just for a comprehensive permit project. And then working with the chair and the applicant, develop a schedule of what's being heard on each hearing date. And that way, we know, say, for instance, that traffic will be heard on the third hearing date. It allows the board and the applicant to be prepared for that evening. And so it gets away from trying to have these one-on-one working meetings. You schedule the hearing process so that essentially each ZBA hearing is a working meeting. And you can set a schedule where you work through the issues. Maybe that meeting one is some administrative pieces like John said, say, Parber, peer review, but then maybe it's applicant presentation. Hearing two is applicant presentation followed by board questions. Hearing three is something else in hearing four. And you can lay out a schedule to help anticipate how to review the project. But I think that's a way to really get at individual topics of a project without trying to go into these working meetings, which really is kind of to the detriment of the whole ZBA. Yeah, I think Nathaniel's comment is right on. And I think the schedule, depending on the complexity of the project, the schedule could be pretty tight. You know, we're going to limit one night for transportation and the other night for groundwater. For a smaller project, you might be able to merge a couple of them because they are related to each other in many cases. But yeah, I think once you get an application, the structuring of how you continue those 180 days worth of hearings is going to be important. And part of it is going to be the availability of your peer review consultants, the availability of the applicants consultants. So it's going to be flexible. But doing it as Nathaniel says, by topical areas is a good way to do it, especially if it's a complicated project. John, I have one last question. Let me understand this correctly. Aside from the three areas that we cannot legislate in, for lack of a better term, title five, the state conservation and the state building codes. We are open, we can waive or consider waivers to all other local regulations. So in effect, if we were dealing with a liquor license request, could we deal with the time and time? Could we deal with how many people in a restaurant? Could we deal with the color of a building? All those things that are left to other bodies in the town to decide, is that including the town council? Is that our scope of authority here or is it more narrow than that? Yeah, it's more narrow. That's a great question. And it kind of begs the whole issue what happened to the notion of affordable housing, right? So when you have a comprehensive permit for residential use only, you wouldn't be talking about a liquor license. You wouldn't be talking about a permit for a parade or something like that. Once the project starts to include ancillary uses, non-residential uses, like a restaurant or a, you know, a vigilance license, now we're really asking the board of appeals to do something that the legislation totally prohibits. But yet that's the conflict. So when you get a traditional comprehensive permit application just housing, then you will never have to ask yourself those questions because you'll be dealing with waivers from land use regulations or sign codes because an issue of an alcohol license would never come up. We've seen it come up with marijuana establishments. You know, for a municipality that has both recreational and medical facilities, could that be part of a comprehensive permit? And, you know, does that mean now the ZBA is sitting in review of a medical or recreational marijuana store? That is a level of reach that we know the legislature did not intend when it adopted chapter 40B. Let's assume that problem's never gonna happen. Your waiver powers then would only be those related to the construction of the rental or the for sale housing. And let me just add one thing we didn't talk was a lot of things we didn't talk about. One thing we didn't talk about is the difference, of course, between rental and sale. One of the important things will be perpetual restrictions on affordability. Can the board of appeals impose long-term perpetual restrictions on resale for housing or for sale project or perpetual restrictions on rental? The answer is yes. Can the board of appeals push for greater affordability? Let's say I'm the applicant and I come in at 80% of median, but the town wants a percentage of the units at 60% of median. Can you push for that? Yes, you can, especially because you're at safe harbor. Can you require a greater mix of affordability as opposed to market? So the traditional comprehensive permit is 75 market, 25% below market. Can you push for a better ratio for the town? Yes, you can. Can you push for local preference? Yes. Can you push for elderly restrictions or housing for the elderly or housing for a certain economic group that needs more housing? Yes, you can. And that all goes back to the assertion of safe harbor. Because if you weren't at safe harbor, I can tell you through my own painful experience, you cannot push for greater affordability. That's 75, 25% ratio. You can't push for it if you're not protected. I lost the case out of Amesbury at the Supreme Court on that particular issue. We wanted more units, not less. The town wanted greater than 25% and we lost. The town wanted to push for more inclusion. We lost. Being at safe harbor provides you that leverage. And again, the developer is gonna have to say yes or you're gonna force them to walk away. So I'm not suggesting you're trying to scare anybody, but I am saying you do have a lot of ability to work with me to get a project that you want that's beneficial to the town. Any other questions from the board members or staff for John? You know, the meeting was scheduled to go to about seven o'clock and I wanna provide for any public comment on the process if there is any. But I don't want to stop any questions from board members or from staff. So let's see if there's a few questions now and then we can go to public comment when people have asked all the questions that they wish. Okay, looks like you've given us an awful lot. And I suspect we're all gonna be, we're gonna be taking a lot of time to go through this over the next few weeks as we have to consider this. Please stay on in case we have some questions. We may have some questions from the public. I wanna make sure that you should be the one to answer those not and not us, okay? Okay. All right. So as we said at the beginning, we do have an opportunity for public discussions and comments. And if you wish to make a comment, you must join the meeting being the Zoom conference teleconferencing link. You've probably already done that if you're hearing me. Link is shown in the slide, which will be put up here in a bit in case you are just on by your phone. One way is through the calendar listing of the meeting at the town website. The second way is to go to the planning board webpage and also click on the agenda there. If you can see it, you can see the agenda at the top of the slide that has been put up on the video here. Please indicate that you wish to make a comment by clicking your raise hand button when the public comment is solicited. If you have joined the Zoom meeting using your phone, please indicate that you wish to make a comment by pressing star nine on your telephone. When called on, please identify yourself by stating your full name and address and put yourself back on mute when we finish speaking. Residents are welcome to express your views for up to three minutes and this is at the discretion of the chair. I remind you that there should be no questions or comments about specific comprehensive permit applications. This is part of state law. The ZBA members are not allowed to listen or to engage in conversation about a project that is not yet before them for a public hearing. If these guidelines are not complied with or what the speaker exceeds their allotted time, their participation will be disconnected from the meeting. So I'd open it up now for anybody in the public who wishes to make a comment to please raise your virtual hand, raise your Zoom hand and we will call upon you. It looks like I have no virtual hands raised and so the public comment period will close. All right. I would like just to say something. So this has been a wealth of knowledge for everyone and this PowerPoint that John presented will be posted on the town website. It'll be posted on the ZBA webpage on the town website and this meeting has been recorded and it will be listed on the town of Amherst's YouTube channel and I think I'll go ahead and actually share that link and put it on the ZBA webpage itself. So I would say both the PowerPoint presentation and the recording of this will be on the ZBA webpage by Monday. So you should keep an eye for that. And yeah, thank you so much, John. This has been... My pleasure, thank you all. And if questions come up in the interim, just shoot me a note. I'm happy to respond. I'll do that promptly and I'll send Maureen, if not tomorrow Maureen, then over the weekend, some other or some sample 40B regs for you to look at and you can share with the board and then we can talk from there. Oh, that would be great. Yeah. Great, thank you very much. Yeah, and if anyone from the general public has any questions about this, you can certainly email Chris Brestrup, the planning director, Nate Malloy, the senior planner or myself about anything that you've learned tonight. Great. All right. Well, thank you, everybody. Thank you. Nice to meet you all. Thank you. Thank you. I think that's enough, folks. So do we need a motion to adjourn? Yes, we need a motion to adjourn and that the five members of the board can vote on this. So not associate members, but full members. Do I have a motion? I make a motion that we adjourn the meeting. Is there a second? Second. All in favor say aye. Aye. Aye. Opposed? That's unanimous. We did good work tonight, folks. Thank you very much. Thank you all. Thank you. Bye-bye. Good night. Good night. Bye-bye.