By MARK SARDELLA
WAKEFIELD — The town will not go down without a fight in its effort to stop, or at least curtail, plans for a 100-unit 40B affordable housing project on Nahant Street. The proposed development site encompasses 119 Nahant St., 0 Nahant St., 127 Nahant St. and 135 Nahant St. and includes the longtime location of Precision Honing Co.
In a special meeting last Wednesday, the board voted unanimously to instruct Town Council Thomas Mullen to appeal the state’s denial of the town’s “safe harbor” claim aimed at halting the development. In October, the ZBA attempted to stop the project altogether by filing a “safe harbor” claim with the state. A community can assert “safe harbor” status to stop a 40B project if it demonstrates measurable progress toward achieving 10 percent affordable housing.
At a meeting on Oct. 18, the ZBA voted to assert “safe harbor” status on behalf of the town.
“As we all know, the Town of Wakefield has made tremendous progress – and even more impressive recent progress – in growing its subsidized housing inventory,” ZBA chairman Thomas Lucey said at the time. “We may not yet be at the 10 percent threshold, but I believe that we have developed so much qualifying housing in recent times that the Town now fits into one or more of the so-called ‘safe harbors’ created by the 40B regulations for communities that have achieved various statutory minima or that have made recent progress toward doing so.”
After opening the public hearing and asserting its “safe harbor claim, the board continued the hearing to its Dec. 13 meeting to allow the applicant time to file any rebuttal and to receive a decision from the state.
That decision came in early December in the form of a denial of the town’s “Safe Harbor” claim by the Massachusetts Executive Office of Housing and Livable Communities, forcing the board to proceed with the scheduled public hearing on the project. Predictably, at the continued hearing on Dec. 13, the project got a chilly reception from the board.
Attorney Jason Panos represented “The Residences at Nahant LLC,” and outlined the project plans at that Dec. 13 meeting.
After hearing the developer’s presentation, members of the Board of Appeals remained united in their belief that the proposed building would be too big and not appropriate for the site.
ZBA member Chip Tarbell called the five-story building right on Nahant Street “totally inappropriate.” He added that the architectural design was “simplistic and boring.”
Board member Greg McIntosh pointed out that the project would almost double the number of homes on Nahant Street, a narrow and winding road.
Board member Kasumi Humphries dismissed the developer’s claims that the building would be close to stores and amenities, adding that it was not close enough to public transportation to reduce car trips.
ZBA chairman Tom Lucey told the development team that they were “a long way from having a safe project.” Size and massing were driving the safety issues, he said, citing correspondence from the Fire Chief and other town officials outlining their safety concerns.
Two weeks later, on Dec. 27, the ZBA met again to discuss appealing the state’s denial of their Safe Harbor claim. That discussion took place in closed executive session, with members of the board, Town Counsel Thomas Mullen and Town Administrator Stephen P. Maio in attendance.
After an executive session lasting about 40 minutes, the board re-emerged back into open public session. ZBA member David Hatfield then made a motion.
“I move that the board authorize Town Counsel Thomas Mullen to file an interlocutory appeal of recent progress with the Massachusetts Housing Appeals Committee on the case pending before this board for the Residences at Nahant, LLC,” Hatfield said in his motion. “And, should the same issues that we are dealing with on that case arise for the other recent case of 32 Nahant St., that the board authorize likewise for Town Counsel to file an appeal there as well.” (The board has also filed a Safe Harbor claim in connection with developer Scott Green’s application to construct a 32-unit 40B project at 32-32A Nahant St and 36 Nahant St.)
Chairman Tom Lucey made a friendly amendment to reflect that the ZBA “instructs” rather than “authorizes” Town Counsel to file the appeal. “I want there to be stronger language,” Lucey said.
An interlocutory appeal (or interim appeal) occurs when a ruling is appealed while other aspects of the case are still proceeding. Interlocutory appeals are allowed only under specific circumstances, which are laid down by the federal and the separate state courts
Town Counsel Mullen explained what an interlocutory appeal means in this case.
“In 40B cases, generally there is no appeal to the Housing Appeals Committee until the ZBA finishes its hearings and issues a written decision,” Mullen said. “At that point, the developer is free to appeal if it contends that the ZBA has wrongfully denied or uneconomically conditioned the project. But here, the ZBA hasn’t finished its hearings and hasn’t issued a decision on the merits. So, we’re at a much earlier point in the process than we would ordinarily be to involve the HAC. The decision of the HAC on this ‘interlocutory’ question will determine whether the ZBA has the freedom to deny or heavily condition the project because of ‘recent progress.’ But it won’t be a final decision on the whole project.”