The Zoning Board of Appeals finished its first pass through the draft decision on the 250-apartment project at 0 and 194 Lowland Street on Wednesday, October 28, and came away with one question it called central to the whole decision: whether the developer must test the stormwater flowing off the site for contaminants. Chair Jay Peabody called that condition “probably the most critical component of the entire decision,” and Vice Chair Elizabeth Dembitzer said she would vote no on a decision without it. The board took no vote. It meets again on Monday, November 2, at 6 p.m., in what Peabody hopes will be its last session, and it must decide, sign and file the decision with the Town Clerk by Wednesday, November 4.
The public hearing closed on October 15, so the board, meeting remotely for more than three hours, took no public comment. Board counsel Brian Winner of Mead, Talerman & Costa said he would circulate a revised draft by the close of business Friday, October 30, and share it with the developer, MP Properties IV, LLC. The Ledger’s page on the project has the background, filings and history:
The testing dispute
Condition 58 concerns the outfalls where the site’s stormwater system discharges to the pond on the north side of the property and to Bogastow Brook on the south. An earlier draft required the developer to test at those outfalls for a list of contaminants, including PFAS, at least once a year. Karen Sherman, the former town planner who is consulting on this project, said the list came from the town’s stormwater consultant, CEI Engineers, and mirrors what the town must test for at its own outfalls under its federal stormwater permit.
The developer struck that list. In its place it proposed to comply with whatever testing any statute, regulation or bylaw requires and to report the results to the board. Dembitzer said that if no regulation requires testing, the substitute does nothing, and she called it “a sneaky lawyer thing.” She said she would vote no on any decision that did not include testing. Peabody said removing the condition entirely “probably doesn’t make a lot of sense,” and Clerk Vladimir Nechev agreed with him.
Peabody then let the developer’s attorney, Jonathan Silverstein, speak briefly on a legal point, though the hearing was closed. Silverstein called the suggestion of sneaky lawyering “unfounded and frankly offensive.” He said that many state rules, among them the safe drinking water regulations, the septic code and the state’s hazardous waste cleanup rules, carry testing requirements that spell out what triggers a test, how it is done and what limits apply. His objection was to costly testing “without reference to any standard, without reference to any regulation,” which he said is “not imposed on any other development I’m aware of in the town.” He said the developer’s environmental consultant had only been able to review the condition that day.
The board asked Winner to redraft condition 58 by naming the state and federal testing programs that apply to the site and what each requires, and to show the members where those overlap with CEI’s list. Peabody said the board needs to know whether anything the consultant recommended goes beyond the regulations and, if so, why it was recommended, before deciding how far the condition can go. Winner has repeatedly told the board that each condition must rest on a regulatory requirement.
Protecting the Zone II
Dembitzer pressed throughout the evening for the decision to reflect that the whole site lies in the Zone II area that feeds the town’s wells. Winner agreed to add a finding near the front of the decision acknowledging the Zone II and stating that the conditions are meant to protect it. She also asked that the limits on fertilizer, pesticides and rodenticides in condition 57, which the Conservation Commission supplied for land near wetlands, apply to the entire property. She asked as well that the decision cite the state’s Groundwater Protection List of pesticides, which Winner said he had not seen but would review if she sent it. That list is part of a state regulation, 333 CMR 12.00, which bars anyone from applying a listed pesticide in a Zone II without an integrated pest management program approved by the state Department of Agricultural Resources.
The board made several smaller changes along the same lines. The winter maintenance plan must use best efforts to “reduce or eliminate” salt, and testing of imported fill will now also cover crushed stone and septic sand. Outdoor cleaning products must be EPA Safer Choice certified “or more protective.” Pet waste bag stations will be installed around the site, and the property’s management company must receive a copy of the decision so it knows the restrictions.
Why exactly 250 units
Dembitzer pointed out early in the meeting that the project’s size sits exactly at a line in the state’s 40B rules. In a town with between 5,000 and 7,500 housing units, which staff confirmed includes Holliston, a comprehensive permit for more than 250 units counts as a “large project,” and a zoning board that follows the required procedure can deny a large project and have that denial upheld on appeal. At 250 units, the Lowland Street project falls just short of that line.
The other open items
Traffic. The draft requires traffic and parking monitoring after the apartments are occupied. If set thresholds are crossed, the developer pays up to $25,000 toward the recommended fixes, and the board wants that raised to at least $50,000. The developer proposed striking a condition that would have made tenants pay for parking separately from rent. The remaining transportation conditions call for a transportation coordinator, a welcome packet on transit and walking options, a first-month transit pass subsidy for new residents and electric vehicle charging.
Construction hours. The board leaned toward barring work on weekends, bank holidays, Holliston school holidays and July 4, possibly allowing interior work on Saturdays as the board did for Concord Street Apartments. It asked Winner to match the language of its earlier comprehensive permits.
Sidewalk. The draft has the developer contribute up to $150,000 toward a sidewalk on Lowland Street if the town applies for a state MassWorks grant within three years of the permit becoming final. Town staff suggested dropping the reference to MassWorks, since the town has found infrastructure money elsewhere, and members want the three years to start from a later milestone, such as a building or occupancy permit. Winner said the money must stay tied to a sidewalk that serves this project and cannot become a general fund.
School bus stop. Sarah Scott, the town’s director of planning and community development, said the site is outside the walk zone for the K-8 schools. The draft requires a sheltered bus stop to be designed but built only once the school department confirms in writing that it will serve it. Dembitzer wanted it built unless the developer shows a bus will never stop there. The board removed the words “within the project,” leaving the location open, possibly at the entrance as Sherman suggested, and held the rest.
The undeveloped land. The developer has accepted keeping the land it will not build on in a predominantly natural state for passive recreation, under a management plan, but not a permanent restriction recorded at the Registry of Deeds. Winner said no one had identified a regulation that would let the town bind the land for all time, while noting that the permit itself runs with the land and binds future owners.
The sewage plant permit
Condition 62 bars any building permit until MassDEP’s groundwater discharge permit for the on-site sewage plant is final, and requires the developer to copy the board on its correspondence with MassDEP as it happens. It also responds to the long-running disagreement between the town’s peer-review engineer and the developer over how the stormwater and treated wastewater interact underground. Under the condition, the board and the developer may each send MassDEP a written statement on that question “to ensure the subject does not evade review.”
What happens Monday
Winner listed the items still open for November 2:
a finding on the Zone II and the purpose of the conditions
condition 58 and the outfall testing, with related references to the state’s cleanup and MassDEP rules
the traffic mitigation cap
construction days and hours
the winter maintenance plan
the sidewalk contribution and its timing
The school bus stop was also held. After those, the board will vote on the developer’s requested waivers, which members were asked to review before Monday, and then on the decision itself. Two of the three votes carry it. The developer agreed in writing on September 24 to November 4 as the filing deadline, and if the board misses it, state law treats the permit as granted. The board also held over its October 15 minutes because not all members had read them.
This report is based on the recording of the October 28 meeting. Minutes had not been posted at the time of writing. Agenda · Recording · Extension and decision deadline letter · 333 CMR 12.00 · 760 CMR 56.03