40B Project Enters Permitting Phase
By Gregory T. Federspiel
On September 27, 2021 Strategic Land Ventures (SLV) filed their application with the Zoning Board of Appeals (ZBA) for a comprehensive permit for a proposed 136 unit apartment complex on Upper School Street on property across from Atwater Avenue known as Shingle Hill. The ZBA has scheduled their first public hearing on the project for October 26, within the required 30 days of receiving the application. The hearing will be held virtually over Zoom. The link can be found on the agenda posting for the meeting in the calendar section of the Town’s web site.
As a 40B project, the applicant is proposing to deed restrict 34 units (25%) as permanently affordable per state guidelines and seeks waivers from our local zoning and wetland regulations to construct the project. The Board of Selectmen, after months of negotiations with the applicant in an unsuccessful attempt to agree on a so called “friendly” 40B project, submitted a list of significant concerns they have along with concerns expressed by other groups about the proposed project to MassHousing. Despite our request to the contrary, MassHousing issued a project eligibility letter to the applicant, allowing the project to move forward with an application to the ZBA. MassHousing, in their project eligibility letter, requested that the applicant address the concerns raised as they present the project to the ZBA. In essence, MassHousing punted the project to the ZBA leaving it up to the comprehensive permitting process to work through the concerns.
The ZBA has six months to complete its review of the project unless the applicant agrees to an extension. During the six-month period, numerous public hearings will be held by the ZBA. The Town has applied for technical assistance from MassHousing Partnership to provide guidance to the ZBA as they go through the permitting process. A specialist well versed in the 40B comprehensive permitting details will be assigned to the ZBA. Town Counsel will also help the ZBA navigate this new to them permitting process.
The process will include hiring, at the applicant’s expense, various professionals who will review the applicant’s submittals regarding concerns such as traffic and public safety access, environmental impacts, including stormwater runoff management and the adequacy of on-site wastewater disposal, and financial feasibility. The peer reviewers will assist the ZBA in the more technical aspects of the proposal.
During the ZBA hearings, testimony will be provided by the applicant, by the peer reviewers, by Town Department heads and Town Boards and Committees as well as abutters and possibly other concerned residents and groups. The hearings are formal, quasi-judicial proceedings and will unfold in a methodical manner.
At the conclusion of the hearings, the ZBA must issue a decision within 40 days. Three basic options exist: approving the project as presented, approving the project with various conditions/modifications, or denying the project. The ZBA’s decision is appealable by the applicant to the State’s Housing Appeals Committee. Other aggrieved parties may appeal to the Land Court or Superior Court. (A guide to the 40B process is on the Town’s 40B page.)
The proposed 40B represents an unusually large project for Manchester. Additionally, the proposed site contains numerous public safety and environmental challenges. As we saw during the process of trying to negotiate a project that the Selectmen could support, the issues involved are complex and invoke strong reactions from residents. As we enter this next phase, no doubt these same issues and the strong opinions surrounding them will come back to the fore.