 The chair knows the time is seven. Oh, three. I call this meeting the Amazon board with appeals to order. My name is Steve judge as EVA chair. I want to welcome everyone to this meeting. We'll begin with a roll call of ZBA members. Steve judge is present. Mr Craig Meadows. Here. Mr. Philip White. Here. Mr. Everold Henry. Here. Ms. Mr. David Sloveter. Here. Ms. Sarah Marshall. Here. And Ms. Hilda Greenball. Here. The quorum is present. Also attending this public hearing is Christine Brescht, Planning Director and Rob Wachilla, Planning Planner for the Town. In addition, we have two representatives from KP Law, Carolyn Murray and Jonathan Murray to provide the presentation tonight. Pursuant to chapter 20 of the acts of 2021 extended by chapter two of the acts of 2023. This meeting will be conducted via remote means members of the public who wish to observe the meeting may do so via zoom or by telephone. No in-person attendance of members of the public will be permitted, but every effort will be made to ensure that the public can adequately access the proceedings in real time via technological means. The zoning Board of Appeals is a quasi judicial body that operates under the authority of chapter 40 of the General Laws of the Commonwealth for the purpose of promoting the health, safety, convenience and general welfare of the inhabitants of the town of Amherst. In accordance with the provisions of Massachusetts General of Laws chapter 48 and article 10 special permit granting authority of the Amherst zoning bylaw. This public meeting has been newly advertised and notice thereof has been posted and mailed to parties of interest. All hearings and meetings are open to the public and recorded by town staff. Tonight's agenda, before we do that, I don't think there's any disclosures needed, but does anybody wish to make a disclosure of any type? All right, tonight's agenda. It's a public meeting on administrative matters. Chapter 40B training KP Law will conduct a training on the comprehensive permitting process known as chapter 40B process with the full ZBA membership. After that, a general public comment period on matters not before the board tonight, other business not anticipated within the last 48 hours and adjournment. So, Mr. Murray, I guess you're the first one here and unless anybody else has anything specifically to say about 40B, any members, if not, let's get started with our briefing. We appreciate you're doing this. I've been through a 40B. It's a different process than we use normally for all of our special permitting or our variances. It's a special process that's laid out in state law, one we need to follow that's different than other other processes we use, and it's a little complicated. So I really appreciate the fact that all the members who are not as familiar with this have taken the time today to be at this briefing. And the good news is we will have the help of the KP law firm during the process as we go through on chapter 40B, which I have found to be most helpful. So with that, Mr. Murray, take it away. Thank you. Well, thank you for having us. I see that Carolyn Murray has also signed it. So we've got a full house. That's great. Yes, thank you. And I know Carolyn was just having a moment of technical difficulties and she's going to lead this discussion, but I'm not sure if she can hear us or see us quite yet. But while she's getting up and running, just thank you for having us. I know that this topic can sometimes be a daunting one as you said, but we hope that the training is helpful. And I find perhaps just before we get started, and I know that everyone's background in this might vary, but is there anything in particular? I think it's valuable to ask. Is there anything in particular or any specific questions you'd like us to focus on as we go through our discussion? I just want to make sure that any specific questions you might have are answered. So is there anything you'd like us to focus on or anything like that? Ms. Green, ball me up your hand up. Yes, I'm particularly interested in local preference and largely because I read the globe every day and currently the loss of those pending in the eastern part of the state. We have gone way over our required 10% and I'm feeling that is there a way that we can push the local preference up to 100% on the owner occupied condos that might be built? That's my issue. I really feel that we're doing more than our job in supplying affordable housing and there's not enough for the people who live here and work here to find a place to live if they can afford. So I'm really interested in pursuing the road of trying to get 100% of local preference. If you have anything to say about that with what is a Holden lawsuit I'm reading about today. So if you've got anything to say about that, I'd love to hear it. All right, that'd be really good to put in the that's a complete that's integral part of what we have to deal with. So make sure that's make sure that's in the presentation. Because I think trying to explain it right now for people who aren't familiar with it could take, could be confusing, but that's a really good question. Ms. Greenbaum, it's one that came up the last time we did a 40B. So it's an appropriate question. Absolutely, we'll touch upon that and all the various aspects of safe harbor and local preference and so we'll touch upon that in the presentation. Anything else I should note or Carolyn should note just before we get started here. Chris. So I just wanted to mention that the two 40B projects that will be coming before you are considered to be by people who work for the town at least and I think also by the town council to be, you know, friendly 40Bs. They're not threatening 40Bs. So I just wanted to make that clear at the outset. I think you know that already, but I just wanted to make that statement. Thank you. And Chris, just while we're getting started here, just quickly review the two projects. I know one is a ballhouse and what's the name of the other one to just give us. One is on Ball Lane and it's some 30 units of home ownership. And it's actually at the intersection of pulpit Hill Road and Route 63. It's a property that was used as a trucking company and I think there was also some farming that went on there. So Valley Community Development Corporation is proposing 30 units in 15 duplexes on that property. And it's going to be for home ownership. The other project is actually has two parts. The other project is a project that we're working on with wayfinders. And the two parcels of land are being either leased or sold to wayfinders. I'm not clear about, or to the, yeah, to wayfinders by the town. They have been owned by the town. One is a property on Belcher Town Road that the town purchased a few years ago with CPA funds. And we are that available to wayfinders to build affordable housing and also market rate housing on that property. And then we also have the East Street School, which is on East Street. It's an old school that was used by the town for several years until I think my daughter was in fourth grade there actually. But in any event, it's a it's a beautiful old building and that building is also part of the project that we're working on with wayfinders and I forget how many units are proposed there, but they're going to be using existing school as well as building some new units out in front. So that's one project really, the Belcher Town Road East Street School project we consider it one project and then the Ball Lane project is another one. Ball Lane is moving ahead more quickly. So we'll probably get an application for that within the next month, if not within the next few weeks. And the other one is probably not going to come in for a while, but those are the two projects that we've been working on. Thank you. Thanks very much. Okay. Are there any other questions or highlights? The things you want highlighted in the presentation. If not, it looks like you've got your technical difficulties, you surmounted the technical difficulties and you're coming to us from San Francisco, it looks like. Thank you, Mr. Chairman, and I apologize at this point, I guess I would say my thanks to Jonathan for being willing to to pitch it on short notice. I was out west today but only in Sturbridge. But getting back here for some reason, I don't know one of my devices is not allowing me to have video this evening so I have gone to device number two which then puts up the San Francisco bridge but I can assure you I am not in San Francisco so but my my apology so I know Rob I know you have a copy of the PowerPoint presentation. Since I am not able to pull that up and share that are you able to or the board members have a copy at least to follow along. So I can pull up that presentation on the screen as well Carolyn it will help with your. Okay, your direction but you just have to give me one second. No problem sorry. No worries. And it won't be in PowerPoint form it's going to be a PDF that I'm going to scroll through I don't know if that's going to matter to you or not. No, it won't matter from my end but thank you. All right so I have it up and I will screen share right now. Can everybody see that. Awesome. Okay, excellent. Um, so, just by, you know, a way of introduction obviously, Carolyn Marys and KP law. I've worked with some of your staff folks before but I don't think I've had the pleasure of meeting with the zoning board. And I recognize that some of you may actually have been through the 40 be processed before. Some of you this may be new to you. I typically like to run these, these trainings as, as being as interactive as possible. So if you have questions, please feel free to interrupt because I think that becomes the most, you know, meaningful way to to absorb some of the information. We'll certainly address the question on local preference later on in the in the presentation where I think it makes a little bit of sense but certainly if there are other things that pop up, feel free to ask. So with that Rob I think we can just go to the introductory page please. So for disclaimer, since this is a training and since you have a couple of applications that will be coming before you, you know the purpose tonight is not to discuss any specific project. So, especially since because you are supposed to be making your decisions, based on information that is provided to the board at your at in at your public hearings. So the disclaimer is really just to say, if you want to talk about projects that have either already been before you, or even projects that might be coming before you. Let's keep them in the hypothetical, and not necessarily give them a particular name and identify them so that that way we aren't running a foul of based on your decisions on information that comes up during your public hearings. So just for those of you who might be new to chapter 40 be or haven't been through the public hearing process before. So it gets its name from the chapter chapter 40 be and really it's just a very short chapter sections 20 to 23. But the key element to this is that it allows a developer to obtain a single comprehensive permit from the zoning Board of for a residential development that does include a certain percentage of affordable housing. What is a little bit unique in this particular scheme is that the ZBA by by the by the use of the term comprehensive permit. The ZBA is supposed to act in place of all other local boards with respect to any sort of local bylaw rule or regulation. So, ordinarily where the ZBA might have a variance before you or maybe a special permit, and there could be some relief that that project might require say from the conservation commissioner of historical commission in the context of a 40 be used the ZBA are acting in place of all of those other local boards and issuing the same permits that those other local boards would issue. The only exception is when those local boards are operating under some sort of state regulatory scheme. So, for example, with the Board of Health, and title five regulations. If if the applicant is seeking some kind of a waiver under a state requirement, they're still going to have to go to the Board of Health for that. But if an applicant is seeking some relief from a local Board of Health requirement. They're going to that's all going to be granted through you the ZBA. Same thing with the Conservation Commission. If the Conservation Commission is administering the State Wetlands Protection Act. They have to still go to the Conservation Commission. But if there is some local requirement a local wetlands bylaw that perhaps is more restrictive than the state. Any relief that they're seeking from that they are going to come. That's going to come up in the context of the comprehensive permit, and the zoning Board of Appeals is going to decide an issue permits accordingly. Maybe a little unnerving for zoning boards because you're not typically boards of health looking at septic matters you're not typically conservation commissions, you know looking at wetlands matters. So, that isn't to say that you can't still rely upon the technical expertise of your staff. It's just that your decision will address those other aspects, besides just the typical zoning matters. As you're probably all well aware, comprehensive permit also allows a developer to override all local zoning or local bylaws or local rules or regulations in the form of waivers that the zoning board is granted is authorized to grant. And the key that what we normally see in these 40 Bs is because there is an affordable component to them, typically at least 25% of the units have to be kept affordable to make up for the developers. And also profit shall we say, typically what you see then in a 40 B is a project that comes in at a greater density than might be allowed by zoning. So sometimes for the first time, a zoning board might look at a 40 B project and say, well they're putting residential multi family in a zoning district where, you know, it's a commercial zoning district. We don't allow any residential uses there doesn't matter you can completely override zoning in terms of the use perspective. But also in terms of any kind of a density or dimensional component that the bylaw might also have. So I think we can move to the next page. So if we start at the beginning of the process, where we are now, one of the things that we always suggest that folks do before an application comes in is actually start planning for this comprehensive permit much like you're doing tonight. One of the things is whether or not we have to look at any kind of comprehensive planning that either we need to do now, or that has already happened that might actually apply to a particular site, as it comes as an application comes forward. We should also look into, you know, do we have an affordable housing production plan has it been certified have we met our goals. If it has been certified. Are there any requirements in our master plan or open space plan that we want to look at and make sure that you know these things are up to date, or they're incorporated and thought about in the 40 B process. So perhaps we can go to the next page, perhaps the most important thing that the zoning board can do before a comprehensive permit application is received is look at your own regulations on 40 B's. Once the application comes in whatever your regular regulations are as of the date that those that that application is filed, we are locked in to our regulations. So, for example, if you haven't had a 40 B in some time or if you haven't looked at your application requirements or your filing fees or anything like that in some time. Once the application comes in, you know, now would be the time to consider those things or see if there's anything that really should be updated. The other thing that you should always make sure and I'm sure that this is something that you folks regularly follow anyway, is making sure that you've got provisions in place in your regulations for requiring consultants to pay fees for any peer review that you might actually need and make sure that the process for the selection of a peer review consultant is also, you know, built into your regulations. So, let's start at what you know the 40 B really is all about and I want to introduce a standard, which is this concept of consistent with local needs. Every, every application that comes before the board, there's always some sort of standard to apply. You know, if we were talking about a variance, we'd be looking at shape soil and topography and we'd be looking at a hardship here in the 40 B world. The standard is whether or not the project is consistent with local needs, or whether our denial might be consistent with local needs, or our application of any of our local bylaws or regulations, are they consistent with local needs. It's kind of a term of art, but, and it's a little bit complicated in terms of its sub parts, but one of the things that it goes into this idea of whether or not a ZBAs decision happens to be consistent with local needs has to do with the statutory minimum, which is what the regulations refer to, but more colloquially this is what we call safe harbors. If the town is in a safe harbor, and for example, you are at more than 10% for your subsidized housing inventory. If the zoning board of appeals could with respect to any of these other applications that may be filed. The board could invoke safe harbor, and I'll talk a little bit more about what that process means. Essentially, if you decided to invoke safe harbor, you could still go ahead and entertain the comprehensive permit, or you could deny the comprehensive permit on the basis that you have met a safe harbor. What that essentially means is that if we truly are in a safe harbor situation, then the board's denial of a comprehensive permit or our approval of a comprehensive permit with conditions is deemed to be consistent with local needs. It also means that the applicant has no right of appeal. That's really the important thing because these cases can wind up in litigation for years. But you do have a little bit more leverage when you're in a safe harbor situation such as you are with having met the 10%. This is always balanced obviously against the regional need for low and moderate income housing. Again, if you've met a safe harbor, and it's not disputed, then your decision is going to be deemed consistent with local needs. So if we could go to the next page. Yeah, we also have a question from one of our members everyone has his hands. Sure. Thank you. Thanks Rob. I think one of the things that I heard earlier is, you know, with a comprehensive permit. We could prove something. And don't quote me on this I'm just going to try to make sure I got it right in a commercial zoned area for something that is non commercial. The second thing is, if we do that, are we now nested in a precedent where someone can come before the ZBA to get a permit site in this as a rationale to get a permit for something that is not zoned for where they're trying to get the permit. This is only if it is another 40 be project. So this is something that is unique to comprehensive permits in that the chap that the statute literally allows through this EBA, it allows you to override all local zoning if you wanted to. So that multifamily apartment building or or duplexes or whatever the configuration might be for affordable housing. It can go in his owning district where residential uses may not be allowed or multifamily uses may not be allowed, because of the fact that it is a 40 be project. So another developer came in with a purely market rates apartment building or some other type of, you know, multifamily residential development, but it was all market rate, no affordable units, and they were just applying say under. What they would apply for under if they're not coming in under 40 be able to suppose they tried to make an argument. It does not set a precedent for you now for other uses, it would have to be another 40 be that allows for the override of local zoning. Okay, and because one of the conditions that one of the findings that we have to make in certain situations is that the project and compliments what is already there. But again, these 40 bees are just what they are, there is no precedence what you're saying to just allow anything else, even if the compliments said this new project. Right, so I think what you're suggesting is like lots of times those owning bylaw will have a provision that you know the proposed project is in keeping with the character harmonious with other uses in the neighborhood that type of thing. I don't mean to minimize when I say that 40 be allows you to override every aspect of zoning, if, if necessary. So the questions of, you know, in some of the earlier cases the question of well, you know, if we allow multifamily residential use in a zoning district, where that's not a use allowed. Again, our zoning bylaw doesn't allow us to grant use variances. Aren't you telling us essentially that what we would need to do is grant a use variance. It's one way of thinking of it, but it isn't called a use variance it's called a waiver. So the developer supposed to when they come in, identify every asked every provision of your zoning bylaws or even your general bylaws that they feel that they cannot comply with. And it's up to the zoning board to decide whether or not they want to grant waivers from all of those provisions. To be honest, they are typically very long lists, not always, but sometimes they can be pages and pages long where you feel as though we're not even worried about whether or not this project is in keeping with the character of the neighborhood or harmonious with other uses in the surrounding area that that just goes out the window. It really comes down to this idea that we have to look, we have to recognize that the state has said that there is a housing crisis. And there is also a coupled with that a need for low and moderate income housing, and every city in town has to do their part to try to accommodate some affordable housing and if that means that zoning has to yield a little bit. Then so be it. And so this is, this is what the legislature has come up with through the whole 40 be process. So, Miss Murray, just to put a final point on it for us and Amherst, we in our zoning bylaw section 10.38 is what we normally focus on it's a long list of things that generally speak to having to find as the it's very general and I'm oversimplifying it here, but have to find that the application is not detrimental to the the neighborhood or to the town right and it's consistent with the with our plan. In effect, we don't have to make that finding those findings what we normally do. We do not have to do under a 40 be correct. Correct. That's why I started with the standard of consistent with local needs. You know, we will be looking at whether or not we think this project with whatever conditions and waivers the board feels are appropriate is consistent with local needs. Thank you. Can you wave some of the waivers that they asked for, and not others as long as it's still economically viable in other words, if they want to go with them say to 50 foot setback of a wetland and the concom says no, can we overrule that. You can. And to your point, you don't have to take every waiver that a developer presents. It's not a slate that you vote up or down. There might be some waivers that you think are appropriate, given the site or given the size of the project or given its location. And then there might be others that you look at and say, no, we really, we don't want to make a concession on this. We think that, you know, either the developer can be made to comply with that provision, or maybe the developer can tweak the project a little bit in a way that does comply with the bylaw. But you're absolutely right that if we, you know, if there is this other concept in the 40 be about rendering a project on economic, you know that whether it's, you know, whether it's a condition we impose, or whether it is a refusal to grant a waiver, if the only way that the developer can then comply with that condition or satisfy the zoning bylaw would, you know, render the project on economic. The developer has to raise that with the board, and that starts a whole, almost like a side process, if you will, because the question becomes, is there, is there a way that the developer could, you know, adequately mitigate whatever that condition is or whatever that zoning bylaw provision is that might satisfy the zoning boards. If the developer can't properly mitigate it, or the mitigation would be so cost prohibitive that it renders the project on economic, the developer can has to assert that. And now we start the separate process of if the zoning board of appeals doesn't want to budge off of its position. And now we're actually looking at the financial aspects of this project. And that would likely mean the zoning board of appeals having to hire, or bring in a third party consultant to help us, you know, go through the pro forma from the developer, and really sort of look into the weeds of the numbers and figure out, is there any, you know, basis for them to truly say that this would render the project on economic. This isn't necessarily a zoning bylaw provision or a waiver, but usually this comes up in the context of we feel the project is too big, or it's, you know, it's a, it's the massing and the scale and where it in relation to other buildings in town, it just feels like, you know, a wart on our, our community's landscape so we want to push it back a little bit and we want to maybe even reduce the number of units. That's always something that is like the third rail for developers where they will argue. Well, I can't get all of the number all of the units that I need. This does not become a viable project for me. Well, you know that's when we have to decide. Do we really want to pursue that and force them to reduce the number of units. And if we do, then we've got to be ready to really talk about the economics of it. And see how that you know how that plays out. Mr Meadows. Is the term on economic based upon first cost or life cycle cost. It, it, um, it really has to do with I don't think it really gets into life cycle cost. It really looks at you know what are your land acquisition costs, what are your engineering costs to design this what are your construction costs to build it and get it up and occupied. The fact that you might have like a monitoring agent that helps get new tenants in there as there's tenant turnover. Typically is not looked at. But there's, you know, there's always this idea of a, you know, rate of return on investment and they have to be, you know, they can't make more money than the subsidizing agency allows them to make on it. But it's, it's typically the cost to get the project constructed, not total life cycle. And thinking in terms of you can very inexpensively build something. And the mechanical systems can be very inexpensive but the cost to the tenant or to the landlord for the annual costs for, let's say electricity, gas oil. It's higher than if you put in a solar system, ground source heat pumps bear variable refrigerant flow systems. He pumps a variety of other techniques that will keep your long term costs down, but may give you a higher first cost. Right. So where do you come? Where do you make the distinction as far as affordability is concerned. What I have seen developers do and they more and more are getting open to, you know, reusable energy and sustainability they are becoming a little more open to those kinds of conversations. But what I've seen in some other projects where, you know, they're, they weren't designed for that so they are still looking at kind of very conventional mechanical systems for for heating ventilation etc. And if the board then said, well, we want you to put solar panels on the roof. It's then up to the developer to push back as to why that could not work. And, you know, 510 years ago. There would have been more pushback than you'd see now. Especially with so many of the state legislatures incentives and getting to net zero greenhouse gases, etc. So I'm starting to see more of that being built into designs that are a little bit more forward thinking. So I wouldn't hesitate that if you saw something that still seem to be, you know, a design that wasn't forward thinking like that. Well, let's get up, because you do have a valid point about, well, yes, it may cost you more in year one or year two when this is under construction, but by the time this building is, you know, 15 years old, that technology or whatever that system that we've made you you know made you build into this to your project has more than paid for itself. I think it can become all become part of the argument of whether or not it is or is not economic. So, we'll finish up Craig, I'm sorry. I just wanted to say so our town planners would be wise to inform at these initial stages, the developers that there's a probability that there will be a request for them to do an analysis. And determine whether it's going to be viable for them to put in systems that are going to be beneficial long term. Correct. Yes. Okay, so Sarah and David have their hands up. I don't want to get, this is an important point. It may not come, it may not come up, but it's an important issue for us. But I don't want to get in the weeds on this and we've got a lot to learn about 40 be other than just economic liability. And I want to make sure that we get through it all tonight before too late but so Sarah and David. Ask your question but let's then move on to the rest of the presentation and not get bogged down and economic liability. And I think this I think I know the answer to this question but I want to check. We cannot relax the building code in any way is that right. Is that right because that comes from the state so similar to title five, or chapter 131 the wetlands Protection Act. Those are things that come directly that are that are state mandated, we cannot alter. So, is there an implied responsibility on the ZBA to help a developer make a project more affordable. If a developer comes before the ZBA with a badly thought out proposal, can the ZBA simply deny it, or where does, where does the ZBA have some sort of role that we are responsible to pursue with a developer. It sounds it sounds like we haven't applied responsibility to make the project more affordable. Is that not true. I don't I don't know that I would say that you have a responsibility to make the project more affordable. I, you know the the developers when they come in, they've looked at your zoning bylaws and your other requirements. They've incorporated, you know let's say your sewer connection fees for example and water connection fees, you know they've incorporated all of those things into their, you know their their pro forma of okay what what will it cost us to really build this project. And asking it as a zoning board really have any kind of affirmative duty to, you know, work with the developer to get to a better design. No you do not. And in fact I often hear from boards. It's not our job to design your project for you we're just telling you that we don't like where you've put the parking. We don't think you've got enough snow storage space or we don't think you've provided enough open space, whatever the concerns happen to be. But that, you know that being said, if you're going to deny it, it has to be based on some kind of local requirement so you're going to be looking for something some bylaw provision, or some local regulation. It rises to the level of a public health or safety concern that the board feels cannot be relaxed and cannot come up with any way for the developer to properly mitigate it. So that I don't think necessarily renders the project more affordable like I'm not suggesting that you let the developer get away with the cheapest design possible. Because there are still important things that they've got to comply with that they get built into the cost and that design. Okay, thank you. Alright, so going back to safe harbors. You know, as you all know, because you're, you exceed the 10% you clearly check off that box. So I'm not going to spend too much time on other safe harbors, but just so that you know obviously there are other safe harbors, like the 1.5% general land area minimum. If you had some sort of a large project in Amherst case based on your housing units 300 units or 2% of your housing units, whichever happens be greater. If that had been. If you had a project of that size before you, you would be able to claim a safe harbor related applications. This is something that let's suppose a developer came in for a conventional subdivision. And wanted to put in 25 single family houses. And the planning board said, that's just too much you know we think that that's just too high a density we'd like to see it smaller than that. And the developer decides, you know they're either going to withdraw their subdivision application or the planning board ultimately denies their application. What sometimes here developers say is, if you don't like this project. I'll be back with a 40 be. And if you think 25 units on a subdivision looked bad. I'll be back with a 40 be there will be twice as many units. We have a situation like that where the where related application that also had to do with residential development on the same property comes back before the board in the form of a 40 be within a 12 month period. We, we can within that 12 month claim a safe harbor sort of a cooling off period. In other words, you're not supposed to come in and use the, the 40 be as, you know, revenge for not being able to get the prior project approved. And then also there's the affordable housing production plan. So I want to go into a safe harbor but I want to go into since you have met the 10%, I want to go ahead to the next slide to just talk about what is the process you know. So to, as I've already said before you know safe harbor, if the board asserts it allows you to deny a comprehensive permit, or to grant it with conditions, and the decisions final, the applicant has absolutely no recourse. They don't build it, but they don't have any ability to go to the housing appeals committee and fight over any provisions in that decision. But just because you're in a safe harbor doesn't mean you can't entertain another 40 be project. You know some communities think that if they hit 10% a developer can't even file. That's not true. And as you're going to see an Amherst on being out of safe harbor doesn't necessarily protect you from anyone filing. It just protects you in terms of how you handle that. Once it's before you. So we could go to the next slide on the process. I don't think any of your other applications that typically come before is owning board of appeals, a comprehensive permit is also supposed to be a an expedited permit process. So rather than your usual say 65 days to open a public hearing. You have 30 days to open the public hearing on a 40 be more importantly, if you're going to assert safe harbor. You have to do that within 15 days of opening the public hearing. So that often puts, you know, zoning boards that have under a lot of pressure because you still have to advertise the public hearing for at least two weeks prior. So by the time you actually open the public hearing, you are essentially like that very night, opening the public hearing and asserting your safe harbor. You can then go on and do two things. You can say, we're starting safe harbor, and letting the developer know that because we are in a safe harbor, we could deny this comprehensive permit if we so choose. We also could go ahead and actually hear the merits of the application. So we're putting you developer on notice that, again, if we ultimately deny it, or if we approve it with conditions, because we have asserted the safe harbor, you have no right of recourse to appeal it. Now you have to follow that up with a written notice to the developer. And I'm sorry, my, I'm still referring to them as the Department of Housing and Community Development as opposed to the executive office of housing and livable communities. I'll have to get my mindset wrapped around their new agency name, but that written notice as has to go out and be received by them within 15 days. The developer has the right to challenge whether or not the town is actually in a safe harbor. Now, typically, when you've got, you know, 11 plus percent, you know, on the SHI is being affordable. That's typically not something that a developer is going to challenge because that is a percentage based on documentation that has been submitted to DHCD. So usually you see the safe harbors get challenged in the 1.5% general land area minimum where we all argue over how to calculate it land area. But someone could still appeal the safe harbor. And then what happens at that point is, there's an immediate appeal to the Housing Appeals Committee that suspends your comprehensive permit proceedings. Until DHCD and the Housing Appeals Committee ultimately decide, do they agree with the town that you have indeed achieved a safe harbor? If they were to ultimately conclude that you had not achieved a safe harbor, the matter goes right back to the zoning board of appeals for you to pick up where you left off and on the merits of the application itself. Even if they find that you are in a safe harbor, you can still go back if the board so chooses and if the developer chooses, sometimes the developer decides that they don't necessarily want to take the risk of going forward with a comprehensive permit when a safe harbor has been asserted. But you could then go back and actually see this through to conclusion to a decision on the comprehensive permit itself. So just for context, what's our affordable housing level? We're well over the 10%. You are at 11.72 when I checked and that's assuming that the online SHI is accurate. And that's what we go by. That's the measure that's used, right? Yeah. We've got some data. Good. All right, so let's assume we're actually going forward with an application before the board. Yeah, so is it should, in general, the ZBA assert safe harbor if it does qualify for one in order to preserve the option to deny the permit. Like, is it remiss of the board not to do so if we could? I would strongly encourage the board to do it because it isn't just in case this results in a denial. It's also that even if you approve it with conditions, the applicant has no right of appeal. And, you know, from my experience with the Housing Appeals Committee, these appeals go on for years. So if you can save yourself some legal fees, go for it. Assert that safe harbor. Not that we don't love doing work for you all, but, you know, you can all spend that money elsewhere if you just assert the safe harbor, but still say, but you know what? We're going to hear this project on Ball Street or whichever project is before you first. But, you know, be on notice that our decision, we're going to make sure it's not appealable. Yeah, it gives us power. Thank you. Absolutely. Yeah. So on the project eligibility letter, I just want to talk about this a little bit because we are starting to see some developers file their comprehensive permit applications before a project eligibility letter has been issued. So for those who may not be familiar with what a project eligibility letter is before an application for a comprehensive permit is filed with the zoning board of appeals. The developer is supposed to take their concept plans to a subsidizing agency could be mass housing could be mass housing partnership could be, you know, any any of the variety of different subsidizing agencies that exists. The subsidizing agency is then supposed to send a letter to the chief executive officer in the town and invite comments within you've got a 30 day window during which they want to hear all of your concerns about traffic water sewer infrastructure whatever it happens to be. They also want to come out and conduct a site visit to see whether or not this seems to be an appropriate location for an affordable housing project. If the subsidizing agency believes that this is a viable project and a good location. I would like to issue a project eligibility letter that to me for those who remember the Willy Wonka and the chocolate factory, the project eligibility letter that is your golden ticket to proceed. You are not supposed to file with the ZBA until you've got that project eligibility letter in hand. But as I said there are a couple of developers who are aware that they might be competing with another developer. And they want to get in before perhaps a safe harbor is met. So they're applying for with the ZBA before this project eligibility letter has been received. If that should happen, please reach out and let us know so that we can guide you through the right process. Because our reading of the regulations is that you must have this in place in order to file the 40B application. We have not gotten a court yet to, you know, necessarily rule on whether or not they can go forward and file the application, while the project eligibility letter is still in the works. So that may come up, but for now, I say we hold our ground and we say now, you have to have this in place. And why is this project eligibility letter important, because it tells us that three criteria have been satisfied. I noticed that the developer is either a public agency that they're a nonprofit or a limited dividend organization, or they are willing to form one. That would actually be the, the, the applicant of the 40B itself that eligibility letter says the subsidizing agency would be willing to fund this project. And that also looks to whether or not the developer has control of the site. That doesn't necessarily mean they have to own it means it could be under a purchase and sale agreement, or that there is at least some sort of long term, you know, leasing agreement in place. So those that takes you know three components right off of this owning board of appeals plates, if you've got that project eligibility letter. Rob, you have a question. It's more of a just building off of what Carolyn said about the agencies that submit these applications. So there's a lot of agencies that are developers who would already have the funds handy to do a project like this but then you have other ones such as the nonprofits that rely on grant funding to do these types of projects. And a lot of the time some of these grant programs that they get their funding from might have deadlines that pressure them into getting these projects through quickly. And other ones don't have any deadlines so they have more flexibility and time for when they can have these projects submitted and they're not as hurried. So the projects that we have come before us and Amherst are luckily Valley Community Development does not have a deadline for their grant funding. So they're willing to be flexible with the town for any deadlines that might be imposed on them. I just wanted to bring up that point. Of course. Absolutely. Yes. Okay. So as I think as we advance to the next page. I think we have covered, if we thank you Rob, if we I've covered all of those at items the only thing I wanted to just also highlight was that the project eligibility letter is not appealable. I will tell you that there are some folks out there who will tell you that you can appeal and would be happy to take the town's money and pursue that appeal. The courts that have had that come before them have all reject soundly rejected any appeal. Once subsidizing agency issues that letter. It is, I don't want to say file but it is not appealable. So if we go to the next page. The application requirements. We've already talked a little bit about you know the comprehensive permit regulations and making sure that the applicant complies with whatever your requirements happen to be. Every once in a while I get a question from someone who will say well, you know we require 13 copies of the application and we require that the the plans be provided to us in a certain format. And you know the applicant only provided us with five copies. And so we're going to determine that that application is incomplete. I always caution against that, because you're up against a clock, a short clock at that where if you don't open the public hearing within 30 days. If the applicant could come in and could assert a constructive approval, you never want somebody to get constructive approval of a 40 be. And you certainly don't want them to get constructive approval, based on the fact that they didn't give us enough copies of their plan sets, you know, instead, if they haven't given you a complete application, still better off to go ahead. And then the public hearing, and at that that the very outset, advise the applicant of all the ways in which that application is deficient. And you could then determine at that point is the deficiency of such a magnitude that the board is of a mindset to just deny the application right then and there, maybe it is. Are they just little things that we say okay, we're going to continue to public hearing, because we're going to tell you we are not going to go ahead, and we're not going to get into the substance of this until you actually have satisfied our application requirements. That in my opinion is a better way to proceed so that we avoid constructive approval. That also includes no payment of the filing fee. There is a case out of handover where an applicant, you know, challenged the amount of the filing fee. In the end, the Housing Appeals Committee actually upheld the filing fee, even though the developer felt it was excessive. And they are supposed to pay that filing fee in full. They can't say, we don't think that's an appropriate amounts we're only going to give you a third of it, for example. We can deny an application based on their failure to satisfy all of the application requirements, and that would include the filing fee. So, just something to be aware of if you ever get a difficult developer. I just wanted to make a note that a few years ago when we had an application for 132 North Hampton Road, one of KP Law's attorneys helped us to update our ZBA rules and regulations. And particularly looked at the comprehensive permit portion of that. So, of course, Carolyn or Jonathan would like to review it too, but I just wanted to reassure the ZBA that that has been done relatively recently. Thank you. Good. Mr. Henry, I'm sorry, I didn't see your hand up. That's okay, Mr. Chair. I just want to clarify. So, on the denial of a comprehensive permit, we're just denying the 40B, the developer can go back and try to correct their deficiencies and try to get their property developed, but they have to go through the different means of the permits and everything consistent with town bylaws. Or does a denial mean it's finite and that's a go away. So, if you are, if you assert safe harbor, and then you deny that comprehensive permit. So that is the end of the road for the developer. So they, they either have to redesign this project and come back before the zoning board of appeals in a way that they think the zoning board would actually approve the project. Alternatively, they can then decide, well, maybe I'll try an open space residential or cluster subdivision, maybe they will try some other means to develop the project that isn't a 40B. Those would, those would be their two alternatives. If you weren't in a safe harbor, and you denied the comprehensive permit odds are they're going to appeal to the housing appeals committee. So we would ultimately, you know, see that process through, see whether or not the town prevails or the developer prevails. I will say that the housing appeals committee is heavily weighted in favor of developers. So it's usually an uphill battle for community that denies a comprehensive permit. So that's why I think where you folks are sitting in a safe harbor position, absolutely assert it and and proceed to go ahead and hear these comprehensive permit applications, so that there is no right of denial. I mean, no, no appeal of a denial for a developer. And out of curiosity, what was the Hanover fee. I forget off the top of my head, but it was at least five figures. Yeah, I have to say that when I, when I read it, it did strike me as being a little bit high, but they, you know, had, you know, a formula that went into it based on the number of units and acreage and blah, blah, blah. So they were able to justify it. But it was one that struck me as being a little bit high in comparison to say some other communities I've seen. All right. So if we could continue with the next page Rob. Okay, so we've already talked about waivers so I don't want to belabor the point too much other than to make sure that at the time of application, the developer is supposed to submit a request of all waivers or identify what waivers they will be seeking that might change in the course of your hearing. You know it may very well be that some waivers come off the table because maybe they move a building a few feet, one way or the other and maybe they no longer need a setback waiver. But it's up to the applicant to at the time of application to give you a list of all waivers that they will be seeking. And then right towards the very end, when you're getting close to that point where you're going to close the public hearing and you're ready to deliberate. I always ask the applicant to submit a revised waiver list. Just in case, you know requirements were added or others were taken off the list in the course of the hearings. You want to make sure that when you're finally voting to grant or deny waivers that you're working off of the most up to date list. I just had a town call me today about a 40 be that was a small 40 be it was a habitat for humanity project where no waivers had been requested. They were in the process of I guess submitting their final site plans to various town departments and they discovered oops. There were a couple of waivers that they should have asked for. You're going to have to go back to the zoning board of appeals, and it's likely they're going to find these to be a substantial change and we're going to have to open the public hearing all over again. So, you know if a developer doesn't update the waiver list at the time that the board is rendering a decision. You know the burden is not on the board to be keeping track of all the waivers. So always make sure before as you're getting to the end that you asked for that updated waiver list. I'm one of the thing we didn't really touch upon as much but I'm when the application comes in. There's a requirement in the regulations that the applications be sent to various town departments. You know you're the ones that you would typically think of you know you're going to want input from a water or sewer department. You're going to want the conservation commission the board of health to weigh in. You might also want fire and police to take a look at the plans. That's one of the reasons why you want to make sure you get enough copies at the outset so that you know the burden isn't on the town to be reproducing these plans. But you want to be able to reach out to all of the various town departments and boards to get as much feedback on the project as you possibly can. In all likelihood, they looked at the project once during the phase where the subsidizing agency was considering whether or not issue a project eligibility letter. It may very well be that there wasn't much that changed from the time that say the board of health offered comments then versus this application. But you know sometimes there are things there are issues that get raised during the whole site approval process that an applicant will then address so that by the time they apply to the zoning board of appeals, it might be slightly different. You might want the board of health or whatever department to look at it again to make sure they're either happy with the changes that have been made, or if they, if that raises any new concerns they can deal with that as well. I think we can go to the next page because we already covered the other aspects there. As far as the public hearing is concerned, it's no different from your typical public hearings under chapter 40 a section 11, with the exception of the fact that it has to open within 30 days. It's still notices to the same local. Sorry, what I was just talking about a moment ago about sending notices to local boards, you know, giving them a copy of the application that you're required to do within seven days of receipt of the application. I said you open the public hearing within 30 days. You're supposed to close the public hearing within 180 days of when we open it. Those deadlines can be extended through mutual agreement in writing with the, with the applicant. If for some reason should always keep your eye on when the date that the public hearing opens and what the 180 days happens to be, because some developers will run out the clock, and they won't remind you of it deliberately. Because they won't necessarily say, gee, if the board doesn't vote on this at their next meeting, you know, we're going to be up against the 180 days. They'll, they'll let that time just run. So it's always a good idea for us to keep our eye on that. And if we need an extension to, to seek that from the applicant. The name of the game obviously is avoiding constructive approval. You don't want the applicant to say that their project is automatically approved just because we didn't do what we were supposed to do within the timeframes. And then the other thing that is one thing, Carol, I just want to make clear that if we come up on one of these deadlines and the applicant does not want to extend the deadline and we're not ready, we can just deny it at that point. And we have the, we have the power to deny it. And, and if they really want to not agree to give us more time that we think we need it's that they're, they're at a disadvantage in that case, correct. It is that the only thing I would say to that is we've got to that if that if the developer, you know, is not going to grant any kind of an extension. Then we have to close the public hearing within 180 days of the date that it's open. The board then has a 40 day window to deliberate from that 180 days. So, we, you have a little bit of time to still talk about okay let whatever it happens to be let let's suppose there was some kind of a, you know, some stormwater data that the applicant didn't get to the board. And as a result of that, the board wasn't willing to grant a waiver, or the board didn't really feel that you had all the data it needed to issue a decision within the 180 days. And then the applicant says, you folks have had long enough, I'm not giving you any more time. Well, I wouldn't just deny it based on the fact that you requested more time and it was denied. I would, I would suggest that we actually go into the board requested more time of the applicant, because we had requested more data, with respect to this either runoff calculations or whatever it happens to be. And despite the boards requesting this information or despite the fact that our bylaw requires that this information be provided to us, the applicant did not provide an update. Likewise did not provide an extension of time for that update. So the board lacks the information that it needs to, you know, be able to, you know, grant this special permit. We think it up so that it isn't just about the time we didn't have enough time to have a predicate reason to do it. Exactly, exactly. And then one other thing that is just a little bit different about 40 bees from all of your other applications that you'd hear is, it's simply a majority vote of the board. So sometimes folks kind of forget about that because we get caught up in the super majority world but not in not when it comes to a 40 day. So if we go ahead to the next slide please Rob. Thank you. I mean a rope but I think Hilda has her hand. Oh, sorry, thank you. Yeah, no I was just going to ask and it's not an important question but can the applicant, if for some unforeseen reasons somebody gets sick who knows what they can't get the information and by the 180 days can they ask to extend the time, or is it what can extend the time. Either party can ask to extend the time. Okay. I've never had a zoning board on in a 40 be context, I should say, never had a zoning board refuse to to continue the 180 days. I think just because there's too much at risk. If you want to have to have their decision be flipped. I certainly have seen zoning boards, you know be get frustrated, shall we say with some developers in with respect to other projects and reach a point where they say, we are just not continuing this any longer you've been stringing this out and stringing it out. But I would always say that in with respect to a 40 be the time can be your friend to really get the project right, or to really show that we have given this developer every opportunity to provide the information they haven't done so. So I would always recommend that if the applicants asking for a continuance granted. So, going back to the public hearings as we mentioned you know after the public hearing actually closes. You've got 40 days to render your decision. And then you have 14 days from whenever the date is that you vote to get that decision filed with the town clerk, just like you do with all of your other decisions. One thing that I would also just say as a best practice is don't close that public hearing until you are absolutely certain that you've got all of the information that you need. We don't want to be in a situation where we close the public hearing because maybe we're tired of hearing from the the same elements, you know, week after week, and we feel we've heard everything that there is to be said. If you think there's a possibility that there's some information that you still need to get from the applicant. Don't close the public hearing. You know you can wait right up until the night that you're ready to vote to close the public hearing and vote, as long as we've were within the 180 days, or as long as we have an extension. We sometimes see with developers council that they will want to say work with with me to draft the decision. And we might go back and forth a few times. So, there might be an occasion in that situation where the board doesn't want to close the public hearing yet because the board wants to hear. Well, town council has proposed that the condition rewarded this way. The developer is actually requesting that you do something a little bit differently. If you want to hear from the developer, but their position, keep the public hearing open, as long as you possibly can. If you feel you've got everything you need, and you're comfortable closing the hearing that by all means go right ahead and do so. Next slide, please, Rob. Outside consultants. This is something that really should be addressed at the outset of the public hearing. As you know, just in your roles as a ZBA, we can pass the cost of any kind of third party consultant to peer review on to an applicant. They have to deposit whatever some of money we set aside, and we get to select consultants within various disciplines to help us analyze the project in it from a technical perspective. Unfortunately, use this to pay for legal services. So, you know, I know I that that comes up from time to time of like, well, town council's been here at all these years yet you pay for that. No. But I will say this, I can tell you that there is a community where a very well known land use attorney for a developer actually agreed to put it into a decision that they would make a certain contribution towards the cost of legal services. I don't know the context behind that I can only say maybe there was something unusual that came up there and they the developer figured, hey, it's easier to give them, you know, $25,000 or whatever it is towards town council, and get our approval right over this but that is highly unusual is all I can say. I do recommend that at one of your very first hearings that there be a discussion about what peer review consultants, you think are going to be necessary. So, typically we look for a traffic consultant typically civil engineering stormwater, maybe there's an architect that we want to look at in terms of making some just some suggestions is about like massing or the design of the project. I've even seen landscape architects brought in for a peer review. Whatever those various disciplines are, you can get a peer review consultant for them. One of two ways on where where Amherst has an awful lot of very capable professional staff available. Sometimes staff will start this process rolling for the board before you open the public hearing, you know, for example, you might have a particular traffic engineering firm that might be under contract with the town to look at any projects that you might that become before you. If that's the case, staff could send the plans out to your traffic consultant before the public hearing begins in some other communities. The board likes to do that themselves or maybe they don't have staff where they don't have consultants of this type that you know are say on call and available to them. It would be something that I would recommend you address it one of your very first sessions of the public hearing, because this is really going to set the table for all of your other meetings. You know the developer can challenge our selection of a consultant only based on one of two reasons. Either they don't think the consultant has the qualifications necessary to review whatever that particular area of discipline is, or the consultant has a conflict of interest. So, if you have this discussion publicly and you say, we want to hire Tetra Tech to look at all of your civil engineering into to especially look at stormwater. If Tetra Tech has done some work for the developer, they're going to be conflicted out. So, that's always something to get out of the way at one of the first hearings. I also recommend and I don't know if this is how the board has handled 40 B's in the past. But I always suggest that the board schedule their hearings. So, if you're you know whatever whatever topic you want to begin with usually the civil engineering and the stormwater that usually takes a little bit more time so that comes later in the process. But if you know that for example, maybe the first night of real substantive hearings, maybe you want to discuss traffic. So, if you tell everybody that at our very first meeting we're going to discuss traffic, the applicant knows to show up with their traffic engineer. Our peer review consultant for traffic knows to show up, and the public knows that if their main objection, or their main concern with this project happens to be traffic. That's the night to show up, because you don't want. In my opinion, you don't want a hearing where this one's talking about traffic. That one's talking about parking this one's talking about screening somebody else is talking about density somebody else is talking about landscaping, and you feel like you're all over the place. And there may not be the right people present on a particular night. That's something that we've done in the past. We've done it the last time and it makes a lot of sense and it also it speeds up the process. It speeds it up. Absolutely. I like it too for the public because they know what night to show up to voice their concern on whatever it happens to be. So, you know, if you, if you're unrolling and assigning your peer review consultants to your first night, that's always usually a good time to like pull up the calendars and say okay, when do we think we could be ready for the next public hearing, and what topic do we think would be ready to address. And I agree that makes everything go much much faster. So for the next slide please Rob. I have a hand raised from Miss Marshall. Yeah, are you saying that we can in fact limit public comment at the meeting. I didn't. I mean we could encourage people to express comments at certain meetings but can we say, you know, you can't speak. I wouldn't say I'm not suggesting that you can't let people speak. I, what I typically see zoning board chairs, what they will do is they will say to folks okay. So here's our calendar. Here are, you know the next four meetings on this project. The first meeting will be traffic. The second meeting is going to be landscape and and architectural design. The next one will be all the civil engineering stormwater all that sort of thing. And then you encourage people to show up those nights to voice their concerns if they're able. And know that those are the nights when the applicants engineers or representatives and our engineers or representatives on that topic will be ready to address any, any issues or answer questions, especially if somebody says well why. Why can't we make this a right turn only or why can't we do this, it really be nice to have the person present who can tell you why. Yeah, I understand. But if somebody says, look, I can't, you know, I can't make that meeting. I've got to give my comments now. That's fine. That that's fine too. And you can say okay, thank you very much, you know, all right. Hopefully your schedule change and you might be able to come back on that night, but or maybe you can watch it on zoom but yes, absolutely you can't cut them off and say no, no only discussing traffic tonight sorry, you'll have to come back another night. Yeah, you can't do, but like I said it just, it helps things flow. If we have a topic assigned. So then when it comes time to actually issuing your decision. As we said at the outset, you know the standard is well reasonable of course it's going to be reasonable and consistent with local needs. So this is where the, the board has to actually look at, you know, does the need for affordable housing outweigh any sort of valid and we say a planning objective, but it can also be a zoning bylaw requirement or regulation that relates to health safety open space, etc. So for example, if, if the board was inclined to look at a project and say you know what, we're inclined to deny it, because we just don't think there's sufficient open space. And we think that this is going to be a problem. The density is too much, you're going to have kids living there, kids need a place to go outside and play. We really have to cite some sort of requirement in the local bylaws that addresses open space and maybe a minimum open space requirement that somehow or other would justify the fact that this is what we require typically for a development of this size. The applicant is woefully deficient in meeting this. And we just don't think that, you know, granting a waiver is appropriate because we think folks are going to need open space to go out and recreate. You always want to link your decision, if it is going to be a denial, to some sort of local requirement that we have applied to other projects, whether they're 40 v projects or whether they are conventional market rate projects. We've applied this, this standard in the past or that we've required this minimum amount of open space in the past to other projects, we're going to hold to it here, and that becomes our basis for denial. The other way of looking at it is that the board recognizes, yes, we might have a local requirement that has a certain minimum amount of open space for recreation purposes. And yes, this project may not satisfy that local requirement, but we feel that the local and the regional need for affordable housing outweighs our strict application of that local requirement. So that's really the balancing test that comes into play. If you're approving a comprehensive permit, you know, typically no one's looking at your decision quite as critically, when it's an approval, it's when it is a denial that there's typically going to be an appeal and that's when the Housing Appeals Committee is going to look at it and say, what was the local rule or the local bylaw that the board applied and has the board imposed that same requirement on market rate projects, you know, the similar size. And if the answer to those questions is yes, we are, you know, we are steadfast in this in always applying this requirement, then, you know, feel, you can feel pretty confident going ahead and applying it to a comprehensive permit project. But as I said at the outset, you can also waive every and any local rule that you see fit if you think that the need for affordable housing warrants it. We could go to the next slide please. I think I've already covered that in my comments that I just made so we can go to the next one. I think we've also covered that as well. So this is just sort of you know a couple of words of wisdom but obviously where you're at the 10% you've exceeded the 10% it isn't much of a problem. Some communities fight 40 bees quite vociferously, shall we say. And as we try to say, if you're not in a safe harbor situation. It's an uphill battle, whether it's the 10% whether it's the 1.5% general land area. If you're not sitting in a safe harbor, and you go ahead and you deny a comprehensive permit, it better be based on a really good reason based on public health or safety, because odds are your decision will likely be flipped. So, as we try to say, make the best of it, you know, except the fact that you might just have to comply with 10% if you're not at 10% yet. And try to work with developers on projects that will help you get to the 10% or stay at the 10%. And consider appropriate mitigation in an approval of a decision that will help offset maybe some of the waivers that you've granted maybe there is a way through mitigation to soften the fact that we are not requiring strict compliance with our bylaws. So the next one. So as far as conditions. First word of warning there's you know the board obviously and this is going to be for an approval. So the only thing that you can do is close any conditions that are reasonable as you could with any other kind of application. The only thing is we have to be careful first of all, the zoning board has to stay in its lane, so to speak. And the first thing we put down there is we can't invade the jurisdiction of the subsidizing agency. This I don't see as much anymore. There are some communities that would want to get into things such as well what is your rate of return on your investment. And we want to set a limit on you know how much money you can actually make from this project. The subsidizing agency has said no that is not for zoning boards to look at that rest solely with the subsidizing agency. So my suggestion is don't even go there, you know whatever, whatever subsidizing agencies providing the funding for the project, they have their own set of rules, they're going to make sure that the that the developer complies with those rules. So there's no need for us to even get into it. And if we do, the developer is going to push back that we have now overstepped our authority. We talked a little bit at the at the outset about on economic conditions, where, you know developer could claim that a condition renders a project on economic. We can look at whether or not there's any way to mitigate against that, or whether we're going to hold firm and challenge the developer to say well prove to us that this renders the project on economic infrastructure concerns, I would have to say that the vast majority of conditions that I see zoning boards impose have to do with some kind of infrastructure, whether it is looking for the developer to. Add sidewalks, make a contribution maybe to a fund because the town is ultimately planning on redoing the main roadway that that provides access to this development. Maybe there is some studying going on about traffic signalization. Maybe there's a project that's planned to improve water and sewer service. Any of those things, if we wanted to impose a condition that the developer makes some sort of reasonable contribution towards any of those projects. All of that is fair game. We just got to remember that, humilatively, the developer or even individually, the developer could argue. If we were to comply with that that would render it on economic. So, going back a couple of slides ago where I was saying, don't close the public hearing, until you're really really short that there's no further information to be gleaned. You know, if the, if, if council or even someone on behalf of the board or staff is tasked with drafting the comprehensive permit. If someone decides that well I think it would be great and I'll throw out a ridiculous amount. I think it would be great if we require them to make a million dollar contribution to our sidewalk fund. If the first time that the developer is seeing that is when you're in your deliberation phase and the public hearing has been closed. The developer is going to let you know that they, that they disagree, and they think that that's an economic condition. But there's no opportunity at that point to have the back and forth with the developer. So that's why I would say, keep the public hearing open, as long as you possibly can, just in case, in the context of working through the decision. You might be inclined to back down from a particular condition or you might decide, you know, a million dollars is really too much maybe we just need $25,000, and the developer says that I can live with. You know that's one of the reasons to not close the public hearing too quickly. We talked earlier about. Henry has a question, I have a question. I have a question on economic. So, let's, we're in a safe harbor. We have, and we've done everything we're supposed to do to assert that we say at one point, we're concerned about the runoff into some into the streams near this, or near this project. And so we are going to require as a conditional approval that you comply with the conservation commissions regulations on A, B and C. And they come back and say, we can't do that because that means we have to build back. We can't have enough units. Therefore, we can't do this project. Now, are you saying that we can't require them to comply with in that instance, in that instance. We can't require them to comply with the calm, calm regulations on water runoff because they, because of the need for housing. Is that the case? No, that's not what I'm saying. That's the beauty of being in a safe harbor, you know, because again, you can impose any conditions you want in your decision, including we're not going to waive any of the provisions of the conservation commission stormwater regulations. You've got to comply 100%. And the developer, because you've asserted safe harbor has no ability to appeal. They can try to conjoal and negotiate or do whatever. Yeah, we have the authority at that point, because we're in a safe harbor. Exactly. That's why I absolutely recommend assert the safe harbor. Go ahead, still, still carry out the public hearing to a decision, but assert that safe harbor. Okay. Mr. Henry. So staying in line with economics and on economic. If up on review of the application to determine the comprehensive permit. If the ZBA thinks that this project does not have sufficient low or moderate income housing, are we required to ask for them to increase the number to set it to approve this permit if we want to. So the percentage of affordability, and typically the level of affordability when I say that typically it's 25% of the number of units have to be set aside as affordable. Typically it means affordable to someone who is making 80% of your area median income based on statistics that are kept by HUD down in Washington. And those also are built into the subsidizing agencies requirements. So if we said, for example, I know you're providing 25% of the units you're setting them aside as affordable, but we'd like to see 30%. You can ask. But if we were actually going to go ahead and impose a condition to that effect. We would be challenged by the developer on the fact that we are now getting into the jurisdiction of the subsidizing agency, because if the subsidizing agency only requires 25%. Our additional 5% is going beyond that. Same thing like every once in a while we'll see, well we want you to offer a couple of units that are also available to folks at say 60% of the area median income, so a deeper affordability level. You can ask. But again, usually the developers when they have looked at this, they figured out the math, and they know that if they've got to do 25% of the units at 80% of the area median income. They know exactly how many market rate units they need to get to still realize the profit that the subsidizing agency limits them to. So, I think that even though you're in a safe harbor situation. I think if you requested a deeper affordability or more units. I think what would happen is even though the developer could not appeal that decision. I don't think the developer would build the project. The other thing we have not talked about is when we wanted to is local preference that come up past times and I want to get to that. And then we'll go this. I mean, Miss green bombs question. And I just, and we, and there's, I hear it all, all the time from people in town wondering how we deal with local preference as opposed to in town versus regional. So speak to that. Sure. Yeah, I have a couple of questions one. If we ran the 25% to people up to 80% of the area meeting and can we can we also ask them if they might be willing to do another 20% for people to 110% for example, or that that would be one question and another question when you know they're building. I don't want to get into too many details but if there's a project where there's a seven acre parcel and room for a lot more houses in the long run. And the going to be run by a home ownership association. Can the legal work for more units be done at the beginning in other words, if they're asking for 20 units and you know that there's a need for many more than that. Can they plan for down the line if the ownership association wants to sell more lots to do that can they can they do that at the beginning. And it's hard to explain without getting into specifics but No, I think so let me try. Um, so, um, I think even requesting additional affordable units or changing the, the income eligibility for some of those units. Because you are in a safe harbor situation. You can ask. If you were not in a safe harbor situation. What I would suspect would happen is that the developer would immediately push back and say, We can't do more affordable units or we can't. We can't do a greater level or different levels of affordability because one. They'll say, we're complying with the. We are in a safe harbor, but Carolyn, we are in a safe harbor, right? No, no, I, right. No, you are. Okay, and that's the way in our situation. We are in a safe harbor. So, yeah. So what. So we can ask. You can ask. And we can can impose that condition. And the developer can say, I don't want any more part of it. And so that's a fun decision. Do we want to lose the whole project? Or do we want to have this go on, right? Right. Okay. Yeah, the second part of my question is, can we ask them to knock out the lots now. And then what would happen say, and if you have people with 30 year mortgages, they're not going to be moving out in a big hurry. And that's why the whole issue of local preference comes up. So the local preference is no more, no longer in effect. So when these people move as, as with the rental housing, but they also may decide we want to invite our friends to live here as happened with full but hill. And it's brief for me on the, the friends are building up and down on public road there. Can the lots already be in place so that down the line 1015 years the homeowners association can sell them. Can we ask them to do that. Can we ask for anything you want, whether or not they're going to be willing to spend the time and the money doing something is entirely up to them. You know, they might say to you look we were, we've got plans for that additional acreage. We just don't know. You know, it's nothing that is ready to be brought before the board, or they might say, you know, we were planning on bringing that back. We were planning at these units now as a phase one, and we were hoping for to come back at a later date with phase two. They might structure it that way. But I think that if they came in, let's say with, you know, 10 units right now, and you still saw that there's plenty of acreage on the site that in all likelihood, there is room for more. Anything you can ask, but I don't think that they're going to stop right then and there and say, okay, we'll we'll plot this whole thing out, or we'll show you what this looks like with 40 or 50 units because that's not part of their whole economic plan. And it's also not part of the project that they submitted to their subsidizing agency for approval. So what happens in 15 years, if the homeowners association wants, and I'm assuming the homeowners association owns the land, rather than the builder owning the land. At least the kinds of things you can ask at a public hearing. It is all fair game. Yes, you can. There's, you know, what someone's plan or what their answer might be when they're before you in 2023 may not be what comes back to you 15 years from now. You know, things change, but, but you can certainly ask. How does it, how does it work with a home owner association like this is the developer out of it wants the units of Delta, or is that something one asks. Because it depends on whether or not you know if we were talking about rentals. I understand, I understand, but there's also rentals where you would have a property manager in a homeowners association, we'd ask for all the document built into your decision, we would say, you know, we want you to form a home owner association. And you need to incorporate the terms of this comprehensive permit into that homeowners association documents. And so with the homeowners association is going to be that obligation that when an affordable unit is available for sale. They're going to have to reach out to the monitoring agent, and they're going to have to figure out what is the resale value, based on, you know, where we are how many years down the road it happens to be. What is the resale value calculated, and then they've also got to figure out, okay. Now, what are what's our affirmative fair marketing plan say, you know, do we need to, you know, where do we need to we need to have a lottery. To advertise this, that's all something that that's going to be built into your regulatory agreement, the affordable housing deed restriction, and you comprehensive permit they're all going to go hand in hand with that homeowners association. So I think I think we're in the weeds on this one and set in a real hypothetical thing that's not really urgent for us to deal with tonight. We've only got a few more minutes and I really want to I want to get to local preference. I want to have a discussion about that. And it's five and I. So I'd like to talk about that right now, Caroline. Sarah Marshall's question, and I don't mean to cut you off, Hilda, but I think it's, I think it's a hypothetical that we don't have to deal with tonight and that there's other things that are really important. Well, we'll get the answers when we need them, I'm sure. Yep, we will. So, so for local preferences, you absolutely can require local preferences. Typically, we'd say as per one of the maximum is allowed by the subsidizing agency whatever program they're operating under. Right now, the local preferences tend to be 70%. I have not seen 100%. I've only seen 70%. And that local preference would be for Amherst residents. It would be for people, it could be for people who work in the town. It could be for folks who have, you know, children in the school system. But what we can require a local preference and have a separate lottery built in for anybody that qualifies for the local preference, you could also have a veteran's preference if you felt that that the only thing to bear in mind on the local preferences is that if we're going to push for more than 70%, for example, or the subsidizing agency may sometimes ask for some kind of justification as to why the local preference is necessary. You know, they might, for example, with Amherst, they could look at it, look at you and say, look, where you're nearly at 12% for affordable units. Is there as great a need in Amherst for affordable housing as there might be, say in a community that's hovering at 2%. But, you know, generally, I have not seen subsidizing agencies reject a local preference as long as it's still within that 70% range. Marshall. I have not defined local preference. I'm trying to figure it out, but could you, not all of us know what that is. So a local preference would mean that there is going to be a requirement built into the comprehensive permit that says so many that says that let's say we'll take the 70% that is allowed for local preference. All of the affordable units have to be set aside for residents of Amherst, employees of the town of Amherst, veterans, people who have children in the Amherst school system, whatever, whatever our categories are who we want to give preference to. So just we want to give preference for local residents. Sometimes it's local residents plus town employees because we recognize that hey, you could be a teacher, just starting out, and you qualify for affordable housing. That's where your income that is. You can build into the comprehensive permit that whether it is the initial leasing of the rental units if they're rental, or the initial sale of those home ownership units have to be offered to a lottery that would consist of a rental that's that qualify for that local preference. So there would be an affirmative fair marketing plan. This is something that subsidizing agencies require that that say who's going to conduct the lottery. How the lottery is going to be advertised how long, you know, a waiting list for example might be good for, and you literally draw names from that lottery and you say, Okay, here are, we've got 15 units. 70% of them can be set aside based on our local preference, and we just started drawing the names and we said we say, Susan Smith and Jim Jones, whoever it is, we go down the list and we offer them the affordable local preference units, until we have the local preference units filled. The remainder would go to say general population all others. But the limiting factor is the subsidizing agency. If the subsidizing agency sets a limit as to how many local preferences you can have, what percentage local preference you can impose. We, unless they waive it, we can't exceed that. Is that right? Correct. There's, there's, there's a limit there that we, we just can't make a number up. We have to, we have to rely or base it upon the subsidizing agencies guidelines or their waiver. Got it. Yes. So I think with that, we're basically at the end. I can talk a little bit about appeals, but I'm also mindful of the fact that we're approaching nine o'clock if anybody had any other questions. Really, as a safe, with the safe harbor, we have very limited appeals, there's very limited risk of appeal. Just speak to what that, what is the risk of appeal if you're in a safe harbor. Well, if you're in a safe harbor, they, there, there is no opportunity for the developer to appeal. That doesn't mean that so now sometimes what we have are a butters, neighbors, who are opposed to a project. They can appeal, but they, they're, they don't go to the housing appeals committee. Their appeal goes to superior court or land court. Either way, you know, it's, it's an appeal that has to be filed within 20 days. I wanted to see if there's any other general questions that people have before we close this. You're pretty much done with your presentation. Are you not? I am. I had one slide on modifications, but I think we did cover that a little bit earlier. So I'm happy to take any questions. So if people have questions, this is the time to do it. General questions. Miss Greenbaum. Okay, I'm still pushing my same issue. Has anybody ever appealed to the subsidizing agency to ask for more than 70%. Why asking for 100% local preference, because we have the need, and we're supplying housing for all the little towns around us, who aren't up to 70, aren't up to 10% factor way below. And we're supplying housing for them where our people don't have a place to live. So is it possible has anybody ever done it. And I understand that there are other people in the town are asking the same question of our legislators. Because I brought it up and they said, well, we're already working on this. So, so where, where do people stand at this point with regard to 100% local preference. Does anybody know Chris? Yeah, Chris. May I. So, I have heard people talking about moving in the other direction that if you insist on local preference or if you insist on a large amount of local preference that that puts at a disadvantage people of BIPOC community, because we don't have a very high percentage of BIPOC community here. And so it would tend to exclude them if we said, you know, all of the people, all of the units had to be local preference because it would tend to, you know, match the demographic makeup of our town. And so, in some, in some people's minds it's considered a kind of racist effort. And so I think that that's something that we need to consider and we've heard that from the, the affordable housing developers. And we've heard it from DHCD, which is now this other thing, which I can't remember. But in any event that is an issue that is brought up so then to try to push that number of 70 to an even higher number. I think you would hear an even stronger argument against that for that reason. I'm hearing it from the BIPOC community that they can't afford to live here. Some of the ones that are running for town council now the same they can't, they can't afford to buy a house, and they have BIPOC community. May I say one more thing, which is that often what happens and Nate has explained this to me unfortunately Nate couldn't be here because he had to go to two other meetings tonight but what happens is that there's this long list of people who apply for these units, and then they have to qualify and qualifying can be very challenging they have to be able to show a certain amount of money in the bank. They have to be able to show that they can pay the first month's rent and the last month's rent and maybe a security unit so all of a sudden you're looking at, you know, thousands of dollars that they have to have available to them in order to be considered to go into one of these units so you wouldn't think that that would be necessarily a requirement for affordable units, but it is they're treated the same way as the people who are going into the market rate units and so it makes it harder for low income people to even qualify so. So, anyway, that's that is an issue and that maybe. Well, I won't go any farther than that. Those are the things we'll have to discuss in context of the actual application for the for the application for us. Caroline, the one thing I would just answer Hilda's question, which was, has anybody been successful in appealing whatever limits the subsidizing agency had on local preference that you know. I'm not aware of anyone requesting greater than 7% local preference that doesn't mean there haven't been some communities that have tried. But you know it isn't it isn't a legal proceeding it would be more of a, you know, a, a, an appeal made to the subsidizing agency and whatever response they give. But I have not seen any projects permitted with a with greater than 70% local preference. All right. Mr white you had your hand up earlier you took it down. If you have that question go ahead. I'm good my questions with my question was regarding percentages to am I and you answered it so thank you. All right. Other questions. Just a follow up to what Chris was saying. I would point this being affordable housing and for people to qualify. First last security does for to be allow us to set conditions where some of those criteria is waived. No, that starts to get into the jurisdiction of the subsidizing agency because the subsidizing agency is literally going to be the, the, the entity that is going to provide funding to the developer to make this project possible. So everything having to do with how you calculate the, the, the, the sale price of the affordable units, what the retail, what the retail value is 510 15 years from now, all of that. That's all determined by the subsidizing agency. And we can't correct me if I'm wrong, we cannot impose conditions that are contrary to the subsidizing they're in the subsidizing agency's jurisdiction. Correct. By the money to subsidize based on certain lease provisions or resale provisions or whatever else. Right. Correct. I mean you can certainly require that any lease or, or mortgage or anything like that, all has to incorporate the terms of this comprehensive permit. And let's suppose there's, you know, a requirement that, you know, every unit has to have a dedicated parking space, for example. And that is still within the zoning board's determination, but starting to get into the financing of the project and how much rental properties happen to be a resale values, or how much of a down payment someone has to be able to come up with that is not within the ZBA's purview that is the subsidizing agency. And then one last, this, I, you know, I said I didn't want to go on hypotheticals, but I'm going to do it myself and I apologize to everybody. So what if the town of Amherst decided to subsidize two units out of 50 unit development and the rest of the subsidization was done by a state agency. Could they have their own, for those two units, could they have their own lease requirements at first, last, and damage deposit? Could they have something different than the subsidizing agency because those two units are being subsidized by the town of Amherst? I think in a purely hypothetical manner, I think you could. You know, my head is starting to explode with things like, well, but then there are procurement issues and there's this. So, you know, putting all of that stuff aside, let's suppose you had an affordable housing trust who, you know, was buying selling properties or was over, you know, acting as a monitoring agent for a couple of rental properties. They could relax those standards. So there. There may be creative ways we can deal with this real problem. But I don't know. I don't know how to apply anything we're going to be looking at in the next two applications. But those are real issues. Real issues. Other questions. Comments. I think you can see why this was the 40 B's are a little different than our real different than our normal special permit applications or our variances and it's it's a more complicated process. It gives a lot of flexibility to us, a lot of responsibility that we have to have to reach out to all the other commissions and boards in town to make sure that we gather opinions and their input and their advice to us because we can open. We can open. It's all comes down to us to make these decisions. The staff does a really good job of reaching out. And in the past, I know they've done that. And that's and we get this information back from the boards. It's really helpful. But this is a, I think it's really was helpful. This Murray, this is important for us to, to understand this and we look forward to being able to call upon KP you and KP law to help us get through this over the next, you know, six, eight months. When we have a couple of these 40 B's come up. So thank you. Happy to help Mr chairman and thank you very much for having me tonight. And just one one follow up question to to Steve's point that this process is a little bit more complicated. So, is it on, is it unprecedented to say, okay, this is a lot of information a lot of documentation we have to consult with many departments. Let's just agree on the outset to extend the time of the bat rather than just sticking with the 180 days. You could try that. But you know developer likely right off the bat would push back on that saying, look, this is supposed to be a one stop comprehensive permit process. And yes, we realize there are a lot of issues that need to be addressed. But the legislature in its wisdom has decided you open the public hearing within 30 days, you should be able to close it with a within 180. I can tell you, I've had 40 B hearings that have spanned two years. They need to span two years, probably not you know there were lots of reasons and hiccups along the way. But I could see a developer right at the outset saying, I don't want to agree on night one that I'm going to extend the 180 days. Let's see where we are on on, you know, day 90, or day 120. I think the board feels that because information is getting to them slower or we're having more difficulty getting our engineers to prioritize and turn, you know, turn things around in a quick enough fashion for you. Let's revisit it then. But a night one, they might think that we're just looking for an excuse to drag our heels. What I say, Mr Henry is that we're fairly lucky here in town, at least in my experience, is that these developers has come and have come before us. Because they have to do an eligibility letter because they have to start to line up the subsidization, because they have to talk with the staff of not only the planning department, but of the other departments. We have a lot of this information already that they're trying to pull together and staff in the town is already aware of the concerns that could be raised. So it's not like this gets dropped without any kind of, you know, proceeding work done to sort of pave the way to the when we start our first hearing. But I also know that in past, our time has gone on longer than 180 days. We've done this, this 40 bees. And so, and developers have been open to that because it worked out for better in that case, it just worked out to have a better project. And everybody agreed to it. Chris, you have dealt with this in the past, you see that the developers kind of know what's expected and what we have and they have resolved a lot of these or at least address a lot of these issues, rather than they start and produce their application, correct? Yes, they've gone through a lot of process with town staff, the engineers and the planners and the building commissioner to get to the point where they're going to submit an application. So they really are, you know, they have refined their proposal to a good degree. And I think, you know, when it comes to you that it'll be a generally speaking, a pretty solid proposal. You've got better things to do. I think it looks like Mr. Henry. It's nighttime. Yeah. Yeah. All right. Well, thank you. Thank you for taking the time. All right. Any other questions? If not, oh, Mr. Meadows. You're muted. You're muted. I have a sense of when these projects are coming forward date twice. So we're anticipating the first one which is ball lane to be smith the next couple weeks. And we're mostly not going to see it come before the zoning board until October. That's that's we're looking at right now. And the other project that Chris had mentioned, we haven't really heard about at all the way fires project. I believe that's what was Ray Chris. But we're expecting that that's going to be delayed. All right. Okay, if there's no other questions about this. Thank you, Miss Murray for the presentation. The next order of business is public comment on any matter not before the board tonight. If you wish to comment raise your hand at so indicate by raising your hand. I see no public attendees. So I can't believe that there's any public comment. There's none. All right. Others business not anticipated within the last 48 hours. So any, the only thing I can think of that we should review is what the next upcoming meetings are and Rob, he just run through that with us. Absolutely. And I'll be quick. So I know it's late. So the next meeting we have is August 24 we have a large solar project that's going to be having its first public hearing date. And then we have September 14, which we just had two parents recently filed for yesterday. One of them is for converted dwelling and the other one is for modifying an existing apartment and a mixed use building. And we also have the 45 pine street folks coming back for discussion with the board at public meeting regarding their landscaping plan and their parking and then on the 28th of September, which is the last day I have in mind for scheduling. We have 798 800 North Pleasant Street public hearing continued which is a proposed duplex on a lot with the existing duplex and those are the next three meetings and that's all I have scheduled for the time being. All right. Any other old business or any other new business. Excuse me. Not. I would entertain a motion to adjourn. Do I have a motion. Mr Meadows moves. Is there a second. Second. Mr Henry seconds. This is not debatable. It requires a roll call vote chair votes I Mr Meadows. I Mr Henry. Hi. Mr White. Hi. Motion passes. We are adjourned. Thank you guys. Thank you very much. We'll see you all in a month. I won't see you next week or two weeks. I'll see you in a month. Thank you. Good night everybody.