The Zoning Board of Appeals voted 3-0 on Thursday, October 15, to close the public portion of its hearing on a comprehensive permit for 250 rental apartments at 0 and 194 Lowland Street. The board will take no further testimony from the public or the developer. It now moves to deliberating and writing a decision, which must be filed with the town clerk by November 4, the date the board and the applicant agreed on.
The applicant, MP Properties IV, LLC, was represented by Mike Scannell of Marcus Partners. The project’s state eligibility letter, posted on the town website, describes four four-story apartment buildings with 63 affordable units on a 42-acre site, of which about 18.5 acres are buildable. The project is before the Zoning Board of Appeals under Chapter 40B, the state law allowing a developer apply for a comprehensive permit from the zoning board and request waivers from local bylaws and regulations in exchange for setting aside a share of affordable units within the development.
Chair Jay Peabody said that between the earlier sessions and this one, the board had heard enough to decide. “So I’m of the belief that this is a complete record pursuant to which we as a board, I think, can close the public portion of the hearing and move on to the next piece of this,” he said. He added that he did not expect more detail from the applicant and did not think the developer would agree to another extension: “So I have no reason to believe we need to continue, nor do I think the developer is going to ask us or allow us to.”
Stormwater, wastewater and the state’s role
The main unresolved technical question involves the on-site wastewater treatment plant, which would discharge treated water into the ground. The plant is surrounded by stormwater infiltration basins that send rainwater into that same ground. Stephen Cabral of Crossman Engineering, the town’s peer-review engineer, said a large storm could temporarily raise the groundwater under those basins by up to eight feet. He said that mounding could change how groundwater flows around the wastewater discharge area, and that the applicant’s analysis had not yet answered that to his satisfaction. “I’m not here stating that the system is going to fail and it will not work,” Cabral said. “As the town’s consultant, I’m just stating that I’m not yet convinced that the potential impacts have been fully addressed.” He said more technical analysis was needed.
Scannell said the stormwater system had been designed with the wastewater mound already taken into account. He said the remaining question concerns how well the treatment plant performs, which makes it a matter for the state Department of Environmental Protection rather than the town. Cabral noted that any wastewater system handling more than 10,000 gallons a day goes to the state for permitting. Scannell said the company received the first of two state approvals, a hydrogeologic approval, in July; the MassDEP approval letter posted on the town’s website is dated June 11. It has not yet applied for the second, the groundwater discharge permit, because that step is costly and the company wanted its local permit in hand first.
Peabody said the board’s draft decision, which he described as a starting point and not a signal of approval or denial, tries to give the town a role in the state review, “to get a seat at the table as it relates to the DEP process going forward.” The site also has existing contamination, which Scannell said the company will be legally obligated to remove within 180 days of taking ownership. The town’s environmental peer reviewer, Coneco, wrote in August that the developer planned to remove it or report it to the state within 120 days of taking ownership. Peabody asked whether the town’s environmental consultant could have some oversight of that cleanup. Scannell said the company would share the information, which becomes public record once it is filed with the state, and would send it to the board’s licensed site professional.
What residents said
Almost all of the residents who spoke during public comment opposed the project at this location, and the reason they gave most often was where it sits: in the Zone II recharge area for the town’s public drinking water wells. Some said they were not against new housing in town. Liz Theiler pointed to a petition on PFAS, the so-called forever chemicals, and asked that the plant’s discharge be tested for them. She and Allison Quinn urged the board to read a 2015 court decision on a 40B project in Stow, which Theiler said found that Chapter 40B does not override local protection of water resources. Town counsel offered the board a summary, cautioning that it is one case in a large body of 40B law.
The case is Reynolds v. Zoning Board of Appeals of Stow, decided by the state Appeals Court in September 2015. Stow’s zoning board had granted a comprehensive permit for a 37-unit elderly housing building and had waived a local water-protection limit on sewage discharge. The trial judge found it more likely than not that the project would push nitrogen above 10 parts per million at a neighbor’s private drinking water well. The Appeals Court revoked the permit, finding that clean groundwater for local private wells was an important local health concern that compliance with state standards did not adequately protect. The Stow site had no public water or sewer service. The opinion draws on, and distinguishes, an earlier Appeals Court case involving Holliston’s own zoning board, Zoning Board of Appeals of Holliston v. Housing Appeals Committee (2011). That case held that a board may deny a comprehensive permit by identifying a health or other local concern that supports the denial, is not adequately addressed by compliance with state standards, and outweighs the regional housing need. In the Holliston case, the court found the board had not made that showing. Vice Chair Elizabeth Dembitzer, who had printed the Stow decision, noticed the Holliston citation during the meeting.
Other residents asked about pest control and rodent poison on a site of this size, about traffic and road salt on Lowland Street, about who would be responsible if something went wrong years from now, and about the lack of sidewalks for children walking to school. In response, Cabral said monitoring of a system like this is typically required “for the life of a project,” for as long as the facility operates. He said the applicant will need a detailed operation and maintenance plan covering sanding, salting and snow storage, and that the stormwater design meets the state stormwater handbook. He also said the infiltration basins have outlet pipes that would discharge to the pond on the north side of the site and the brook on the south side during major storms. Because the site is in Zone II, Cabral said, the board could reasonably add conditions limiting pesticide and fertilizer use, adding, “I would not rely upon DEP to do that.” Peabody said the board had already held about three hearings on traffic, with consultants on both sides, and that it is considering mitigation, including a sidewalk or a contribution to a sidewalk fund.
A direct abutter on Lowland Street asked the board to require that the buildings step back on her side, that there be no balconies facing her property, and that an engineered, planted earth berm restore some screening. She noted that the project will raise the ground level significantly. Scannell said the grade will go up about seven feet on average, mostly with clean fill brought in from outside, that the mulch berm along the frontage will be tested and removed, and that the land that cannot be developed will be kept naturalized and undisturbed.
Waivers and the draft decision
The board walked through the applicant’s list of requested waivers from local rules but did not vote on any of them, and Peabody said each would be taken up during deliberations. Among them, the applicant’s engineer, Carlton Quinn of Allen & Major Associates, Inc., asked for two monument signs, one at each entrance and one foot from the property line, where local rules allow one sign set back 10 feet. He also asked for light poles with a 22-foot mounting height, where 15 feet is the local limit. Peabody said the decision would call for the maximum number of affordable units with as much local preference as the state allows.
The applicant’s lawyers sent back their markup of the board’s draft decision at about 6:07 p.m. on the day of the meeting, and neither the board nor town counsel had reviewed it yet. Town counsel said he would share the applicant’s redlines and circulate progress drafts as the board works.
What happens next
The board will begin deliberating on Wednesday, October 21, at 6 p.m., and Peabody said he expects it may take one or two more sessions after that. “It is open to the public,” he said. “We cannot take any additional public input, but if somebody wants to sit and listen to us chat, they certainly have that right.” The decision must be filed with the town clerk by November 4.
Readers following the groundwater bylaw amendments at Monday’s Town Meeting may wonder whether they would apply here. At the Planning Board’s October 14 meeting, a board member asked how the amendments might affect “the 40B apartment complex coming in to Lowland area.” Sustainability Manager Amelia Landau said the amendments do not change the bylaw’s existing rules that bear on housing, which any proposed project would still have to follow. Barbara Peatie, who ran the meeting, said 40B projects bypass local rules. Sarah Scott, the town’s director of planning and community development, added, “I’ll also just note that in general, as soon as someone submits an application, then they are protected from any zoning changes.”
Also on the agenda
The board also voted 3-0 to close the hearing on a special permit for Martins Cleaning and Painting, Inc., which is moving from Ashland into the former car dealership at 1286 Washington Street. The company said it would use the space as an office for two employees and to store tools, with no retail sales and no hazardous or flammable materials kept on site, since paint and cleaning supplies go straight to job sites. It said up to about four branded vans may be parked there overnight. Peabody said the permit would apply to this tenant only. The board expects to decide on it at the October 21 meeting. After the decision is recorded there is a 20-day appeal period, so Peabody told the applicants to expect 30 to 40 days in all; their Ashland lease ends at the end of October. The board also approved the minutes of its September 24 meeting.
This report is based on the recording of the October 15 meeting. Minutes had not been posted at the time of writing. Agenda · Recording · MassHousing eligibility letter · Reynolds v. Zoning Board of Appeals of Stow, 88 Mass. App. Ct. 339 (2015)