Aug 13

From the Town Administrator's Desk - August 13, 2022

Posted on August 13, 2022 at 11:21 AM by Tiffany Marletta

A Refresher on the 40B Process
By Gregory T. Federspiel

The proposed 40B project at Shingle Hill has necessitated a bit of a crash course in the intricacies of the state law that governs these projects.  It has been nearly 2 years now that the Town has been dealing with the proposal to build a large apartment complex on what, at best, can be called a challenging site.  

Chapter 40B, Sections 22-23, known as just “40B” is a state law passed back in 1969 designed to facilitate the construction of low- or moderate-income housing in all communities.   Developers can use 40B to obtain waivers from local regulations in communities that have less then 10% of their housing stock deed restricted as “affordable” per state definitions – housing that requires no more than 30% of the income of a family that earns 80% of the area’s Annual Median Income.  The law basically allows developers to build projects that otherwise do not comply with local zoning and other regulations.

Not all 40B projects are adversarial.  So called “friendly 40B’s” are possible when a community can work with a developer in crafting a project that the community endorses.  While this was attempted in the case of the Shingle Hill proposal, the effort was not successful.  Certainly, the constraints of the site hindered a positive outcome.

The project moved next to a conventional 40B whereby the Zoning Board of Adjustment, ZBA, undertakes a comprehensive permit review process.  All local permitting is consolidated under the authority of the ZBA. After many months of hearings where testimony has been given by the applicant, peer reviewers hired by the Town and paid for by the applicant, Town staff and board members, many residents, and experts hired by different interest groups, the ZBA has closed the evidentiary portion of the hearing process and are now deliberating on the decision they need to make.  The ZBA can approve the project with various conditions, or they can deny the project. In either case, a decision must be based on the evidence collected during the hearings.  A decision is due 40 days after closing the evidentiary portion of the hearing – September 5th in this case.  

The ZBA has held one deliberative session during which major concerns regarding environmental degradation and public safety dominated the discussions.  The ZBA will be continuing their deliberations on August 16 starting at 6:30PM.  While these sessions are open to the public no public comments can be taken now that the evidentiary portion of the hearing has been closed.

Regardless of an approval with conditions or a denial, the applicant can appeal the decision to the State’s Housing Appeals Committee.  The Committee has set a very high bar for upholding a ZBA’s denial of a 40B project. The vast majority of denials are overturned by the HAC.  As part of a state agency whose mission is to see more affordable housing built, they require compelling, well documented local needs that outweigh the regional need for more affordable housing.  Their mandate is to build new affordable housing units.  In the rare cases the HAC has denied a project, significant environmental degradation or major public safety concerns have often been the reason.  Even in cases of a ZBA approval, the conditions that the ZBA places on the project can be appealed by the developer to the HAC where typically many conditions are removed due to causing the project to be “uneconomic” in the eyes of the applicant and the HAC.  

The appeal process before the HAC is de novo, meaning that the proceedings before the ZBA are not part of the record.  In essence, the hearing process starts all over. The applicant and the Town submit pre-hearing testimony.  An HAC hearing officer conducts the hearings during which the applicant’s and the Town’s legal counsel cross examine the witnesses (typically consultants hired by either side) based on their pre-filed testimony.  This process before the HAC can take a year or so to complete.

Once the HAC has rendered a decision, the applicant, the Town or other parties can appeal to the courts.   The court appeal process is based on the record established during the HAC process.  The court proceedings can take multiple years to complete.  

While I am not a betting person, I do not think I am going too far out on a limb to say that regardless of what decisions are made by the ZBA, one party or another will be appealing, and we have many more years ahead of us before a final resolution on this proposal is reached.  Given all that we know about the area, I wonder if the time and money might better go toward a deal that preserves this land in its natural state.  

Aug 05

From the Town Administrator's Desk - August 5, 2022

Posted on August 5, 2022 at 9:14 AM by Tiffany Marletta

Drought Persists, Water Ban Enacted
By Gregory T. Federspiel

Yes, it is dry! The State has declared a Level 3 Drought Condition for our region. This is the second highest level, indicating critically dry conditions and means that all non-essential outdoor water use should stop. The Select Board, in their capacity as the Town’s Water Commissioners, voted to declare a state of water conservation due to the persistent drought conditions and has issued a mandatory ban on all non-essential outdoor water use. This ban goes into effect immediately and will remain in place until further notice.

We are significantly behind normal levels of precipitation. All of June and July were extremely dry and there does not seem to be much relief in sight. Rainfall totals are almost 10 inches below normal.  Local streams are very low. Lawns have turned brown, and you can hear the dryness in the woods as you walk over dry vegetation.  Luckily grass can go dormant and will come back when wetter weather returns.

Our drinking water supply depends on both surface water runoff and groundwater recharge. Both sources depend on consistent rain and snowfall. We are seeing diminished capacity in our Lincoln Street Well which typically supplies about 40% of our water needs. Gravely Pond, our other major source of water, is certainly witnessing a draw down though so far not dramatically lower than what we typically see this time of year.  However, with heavy irrigation use and a continued lack of rain the water level can drop quickly.  And if drought conditions persist through the fall, we can run into trouble over the winter if temperatures remain cold and precipitation is locked up as snow.  

To ensure an adequate water supply over the coming months the Select Board voted to impose an outdoor water ban at their meeting on August 1st.  The mandatory ban applies to all non-essential outdoor water use.  Hand-held watering of outdoor plants between the hours of 5PM and 8AM can continue as can the use of drip irrigation for plants,  but the use of sprinklers and lawn irrigation systems are prohibited.  Other examples of prohibited outdoor uses include filling pools, washing down sidewalks or driveways, and washing cars or boats with the hose running.

Violators of the ban may be fined up to $200 per day.  While we will not be sending out an army of water police, violations that are observed/reported will result in tickets being issued. Residents with concerns can contact the DPW.  In the past, compliance with water bans has been high and we certainly hope this will be the case this time around.   We all share a responsibility to do our part to conserve water to ensure we have drinking water for our interior domestic needs.

There are many ways to conserve water inside the home as well.  Measures like only running dish and clothes washers when full, not running the faucet when brushing your teeth and taking shorter showers all help to lower water consumption. Toilets do not need flushing after every use. If not already in place, low flow fixtures should be installed in homes.   

Manchester is fortunate to have a robust water system but as the current drought persists, we are wise to be cautious in our use of water.  Last summer it seemed it could not stop raining. This summer is the opposite. It is highly likely we will experience these types of swings in weather patterns more and more as the impacts of climate change advance. This is one reason why the Water Resources Protection Task Force is hard at work investigating how to make our water system resilient to climate change.  Their recommendations will be coming starting in the Fall. While we hope to have broken the drought by then we know that this won’t be the only dry summer going forward.   

Please help the Town conserve water by doing your part to consume less.     

Jul 29

From the Town Administrator's Desk - July 29, 2022

Posted on July 29, 2022 at 8:43 AM by Tiffany Marletta

Bolstering our Public Health Structure
By Gregory T. Federspiel

COVID has many lessons for us.  For the one, the pandemic highlighted the lack of robust resources most communities have in place to deal with wide-spread community health issues. This is true for Manchester.  Our Health Department has operated under a very frugal budget for years and while the structure has served us well, the experiences of the past few years has demonstrated the need for changes.

As part of the FY23 Budget, which began July 1st, the Board of Health (BOH) has been given a green light to recruit a Health Agent to serve as a department leader. Years ago, the Town shared a Health Agent with Essex, and, prior to that, had its own Health Agent. Currently we rely on a part-time administrator, a part-time public health nurse (who put in significantly more hours above their normal routines during the height of the pandemic)  and contract workers for Title V work and other inspectional services.  

As part of the move to provide a more fully staffed Health Department, the BOH and the Select Board agreed that it would be beneficial to clarify the roles of the BOH and the functional relationship of the Health Department within the rest of Town governance and administration. A new Memorandum of Understanding (MOU) was crafted and approved by both boards recently that defines the roles and lays out a collaborative approach to managing the affairs of the Health Department.

Boards of Health have defined statutory responsibilities. For communities that have elected boards and no local charters or special acts that modify the statutory duties, a local Board of Health has a high degree of autonomy. For us, we have an appointed board (chosen by the Select Board) and the Special Act that created the Town Administrator position with general administrative duties for all Town operations.    

The recently approved MOU makes it clear that health directives and policy decisions governing the Health Department rest with the BOH per state law. General administrative oversight lies with the Town Administrator.  The hiring of staff is a collaborative effort.  For the Health Agent/Department Leader, the Select Board must ratify the hiring of the preferred candidate. The MOU does not convey any new autonomy to the BOH.  Rather, it clarifies their role vis a vis state law and the Special Acts that the Town and State have approved.  

A Board of Health may promulgate policies and health regulations that protect the public health. Any proposed policies and regulations must first undergo a public hearing process.  Drafts of the proposals are made available, and the public is afforded an opportunity to comment and provide input to the BOH prior to them taking a vote. The MOU does not change this statutory process.  

Last fall the BOH was given a proposal for new regulations regarding development from the Manchester Essex Conservation Trust for consideration. These proposed regulations would apply to future development with a particular focus on protecting water quality (the new regs would not apply to anything already built or already in the permitting process.)  The BOH has not yet decided if they will advance these regulations either in their original form or possibly in some modified form.  A lot more work, including advice from Town Counsel and an assessment of how these proposed regulations fit within our existing zoning regulations, will be needed.   

Updates on both the hiring of a new Health Agent for the Town as well as progress on any new proposed regulations aimed at protecting our water resources will be provided as appropriate.