[MassHistPres] Developer using 40B to advance development in LHD

[Dennis De Witt]

In theory, the ZBA stands in for the local board and, one might think, it should apply the same statutorily standards.  Perhaps what happens may depend on how the particular ZBA views its role.  I have had experience in Brookline of the ZBA chair approaching the issue with a strictly zoning mindset and ignoring the statutory design review role that some observers felt it could have undertaken under the District Commission’s remit that it had been given under 40B.  That said, if the ZBA design review rejects the developer’s proposal, he can appeal to the state board, which is highly likely to side with the developer.  So any 40B review it is a high wire act. 

The other issue is state funding or permitting.  A building in an LHD is automatically on the State Register, even if it’s not in an NRD.  It is my understanding that the state housing review and funding agency ignores the “historic" category when filing an ENF for a project (apparently, it claims that what it does is not “permitting,” which seems like a nonsense) and so 40Bs may never get to MHC.  I’m not aware that this issue has ever been taken to court nor that there is any case law cite in relation to it.  I’d think the Old King’s Highways case would not apply.  

Dennis De Witt
Brookline

> On Jan 20, 2021, at 1:56 PM, sally milne <urbanosally at gmail.com> wrote:
> 
> Hi.  Ward,
>   So the developer is no longer talking of demolition correct? He wants to use the building for affordable housing through the 40B process?   Is that correct?   I’d be curious. 40B overrides all the local zoning true,  but wondering if the building is in the LHD then I assume the outside of the building must be maintained following the rules of the Historic district. Can anyone comment on that?
> 
> Sally Urbano
> Harwich,Mass,
> Individually
> 
>> On Jan 19, 2021, at 6:14 PM, Ward Hamilton <melrosehistcomm at gmail.com> wrote:
>> 
>> In 2019, the Melrose Historical Commission led a coalition of concerned residents that opposed the demolition of the oldest commercial building (ca. 1875) in the downtown local historic district. The Historic District Commission unanimously rejected the application and all was well for the moment.
>> 
>> Since then, the developer has filed a 40B application and has a hearing before the Melrose zoning board of appeals next Wednesday night, January 27th.  What can be done at this point? Anything? I'm guessing that they still need to acquire permission from the ZBA for certain variances, is that the only bargaining chip left?
>> 
>> The mayor, city planner and city councilor (whose ward this is in) all support the project.  So there's no support to be found there.  
>> 
>> 
>> 
>> Ward Hamilton
>> Chairman
>> Melrose Historical Commission
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