North Reading's Safe Harbor Appeal

With 2019 behind us and 2020 underway, we continue to see that the 40B process is long, complex and has layer after layer of detailed phases and procedures. Just when we thought we could sit back and and let the Town continue to fight the battle, we realized that DIRC still has a critical and influential role to play. You have likely heard that our ANRAD appeal is still pending the Department of Environmental Protection's (DEP's) ruling on whether or not the 20 Elm culverted stream is worthy of a buffer zone, a ruling that would put environmental protections in place for a strip of land running right through the middle of the 20 Elm property, hindering potential work being done in that area. What you haven't heard much about is the town's Safe Harbor Declaration and associated appeal. Strategically, Safe Harbor is our BEST possible chance of stopping the project outright. Despite a political battle with the Department of Housing & Community Development (DHCD), North Reading has solid data that supports our Safe Harbor Claim. DIRC's legal team has been working seamlessly with Town representation and leadership, as an extension of this amazing community which has rallied behind us. As we continue this fight, we need to keep raising money to retain our legal experts and consultants.

Question of the week:

"DIRC has been quiet. The Town has been quiet. What the heck is going on with this Safe Harbor Appeal and why haven't we heard anything?"

The short answer is DIRC has been very busy and so has the Town! Due to the technical, drawn out and complex nature of the preliminary appeals process, the day to day happenings have been tricky to share widely without proper context. We've attempted to provide a detailed summary below. The bottom line is that the safe harbor appeals process at the Housing Appeals Committee (HAC) is still in a preliminary phase and the hearing has yet to be scheduled.

A Tale of Safe Harbor....

Prior to August 2019, the Town believed it fell short of the 10% Subsidized Housing Inventory (SHI) and the 1.5% General Land Area Minimum (GLAM) calculation giving it few options to deny the 20 Elm 40B project, despite widespread and strong concern by town officials and residents. DIRC attorney Dan Hill discovered that confidential group home acreage information was not considered in the town GLAM calculations. After requesting the group home data from the State, North Reading gained an additional 59 acres towards the GLAM calculation, putting it over the required 1.5% subsidized acreage, prompting the Zoning Board of Appeals (ZBA) to invoke Safe Harbor on both the 10% SHI requirement and 1.5% GLAM calculation. The invocation of Safe Harbor gives the Town authority to deny an undesirable project, but only if the Safe Harbor claim ultimately stands.

Shortly after the Town invoked Safe Harbor on both the 1.5% GLAM calculation and the 10% SHI requirement, the developer filed an appeal with DHCD - a notoriously developer friendly state board. DHCD quickly issued a perfunctory Safe Harbor denial letter stating the Town didn't meet the burden of proof due to procedural requirements (i.e. the way the information was submitted), but not because of the validity of the numbers - which ironically came from DHCD staff! The denial letter was expected.

The North Reading ZBA then voted to appeal DHCD's decision to the HAC, the judiciary arm of DHCD. The upcoming Housing Appeals Committee process includes a de novo review of the matter, meaning the hearing will allow new evidence to support our numbers, expert testimony, legal briefs, etc.

After extensive DIRC lobbying, the Town voted to appropriate free cash toward the appeal and Attorney Barbara Huggins Carboni, a 40B specialist from KP Law, was brought on board. As a reminder, KP Law is already representing North Reading as Town Counsel. Attorney Carboni has a history of collaboration with the firm representing DIRC, Hill Law, in several towns within the Commonwealth (e.g., Weston) and their local resident groups.

Counsel from Hill Law along with Attorney Carboni and Attorney Regnante (the developer's lawyer) attended the HAC conference of counsel to kick-off the HAC appeal process. This meeting was intended to define the scope of the hearing, set the schedule and expectations to ensure that all parties proceed forward on the same page.

During this conference of counsel, Hill Law indicated DIRC's intent to file a preliminary motion that would admit our group as a "participating" party. If admitted, DIRC would have the ability to file briefs, be privy to confidential information and participate in the upcoming hearings. This is important because it keeps eyes and ears on the process, gives the community a voice in Safe Harbor matters, and maintains our seat at the table, encouraging the town to hold the strategic line that we have been working to establish. The Town filed an assent to the DIRC motion indicating its support of DIRC's participation.

Meanwhile, the developer filed four preliminary motions of his own, a move that is seen as both aggressive and unorthodox. The nature of these motions is such that the HAC cannot schedule the appeal hearing dates until all the motions are reviewed and decided. This could take several weeks to several months. Once rulings have been issued on these preliminary motions, a hearing schedule can be set.

In an interesting development this past week, DHCD released revised Safe Harbor guidelines for calculating the 1.5% GLAM numbers. The revisions pertain to calculating and reporting of group home acreage that will affect the whole Commonwealth going forward. This change is believed to be a direct result of North Reading's case and arguably a political maneuver by the developer and/or DHCD. After preliminary motions had been entered and responses briefed, the developer's attorney surprised all involved by submitting a letter requesting that North Reading's Safe Harbor declaration be subject to the new guidelines retroactively, something the Town and DIRC are fighting.

To sum it up, there are four motions and a procedural request pending, all of which must be addressed before any HAC appeals hearings can be scheduled. Through all these layers and technical steps, DIRC has been able to maintain a solid strategic position. In the interim, the North Reading ZBA 40B review process remains on hold. As you can see, it's a long drawn out process.