Zoning Board of Appeals Decisions and Pending Applications

APPLICANT: 302-304 Whiting Street Limited Partnership

OWNER: Robert J. Barra, c/o Realty Assets, Inc.

PREMISES: 302-304 Whiting Street

Hingham, Massachusetts

DEED REFERENCE: Plymouth County Registry of Deeds

Book 20119, Pages 199-200 and a portion of

Book 1936, Page 61 (13,540.9 sq.ft. from Eastern Quarries parcel)

SUMMARY OF PROCEEDINGS:

This matter came before the Zoning Board of Appeals on the application of 302-304 Whiting Street Limited Partnership (the “Applicant”) for a Comprehensive Permit pursuant to Massachusetts General Laws Chapter 40B, Section 20 through 23, as amended, for the construction of a twenty (20) unit residential condominium development, which incorporates five (5) residences qualifying as affordable. Eight (8) buildings, containing twenty (20) residences (five (5) affordable), are planned to be constructed. The site consists of approximately 9.5 acres of land located off of Whiting Street, Route 53, in Hingham (the “Site”), located in Residence District C.

Public hearings on the matter were held over the course of several months before the Hingham Zoning Boards of Appeals (the “Board”). The Hingham proceedings commenced on September 6, 2007, November 1, 2007, November 15, 2007, January 24, 2008, March 13, 2008, April 17, 2008, June 5, 2008, July 24, 2008, September 24, 2008, November 19, 2008 and December 10, 2008; a number of the hearings were postponed at the request of the Applicant. All public hearings before the Hingham Board were held at Town Hall before a panel consisting of regular members Stephen J. McLaughlin, Chairman, W. Tod McGrath and Joseph M. Fisher.

FACTUAL BACKGROUND:

The entire Site consists of approximately 9.5 acres of land located off of Whiting Street, Route 53, in Hingham. The Site consists of two separate parcels: the first parcel, known as 302-304 Whiting Street and consisting of approximately 9.25 acres, is presently improved by two existing houses; and the second parcel, a trapezoidal parcel consisting of .25 acres, was acquired so as to allow for the optimal placement of the Project’s driveway off of Whiting Street. A plan of land entitled “410 Whiting Street Plan of Land in Hingham, Mass.,” dated November 8, 2008, (hereinafter, the “Plan”) depicts the Site and is attached hereto as Attachment A. The Site is situated within the Residence C zoning district.

THE APPLICANT’S PROPOSAL:

The Applicant is a Massachusetts limited partnership, and qualified limited dividend organization, authorized to enter into regulatory agreements with municipalities and other governing authorities within the Commonwealth. The Applicant proposes to construct a twenty (20) unit residential condominium development to be known as Derby Brook (originally filed as “Penniman Knoll Condominiums”). As proposed, the development does not comply with many land use regulations applicable to developments within the Residence C district. However, the Applicant has submitted its proposal under the provisions of Massachusetts General Laws Chapter 40B (the “Statute”), which renders many of the Town’s zoning and development regulations inapplicable in exchange for a commitment from the developer that a portion of the residences will be affordable housing. Under the requirements of the Statute and the regulations promulgated thereunder, each city and town in the Commonwealth is mandated to provide ten percent (10%) of its housing stock as “affordable housing.” At the time of the filing of this application, the Massachusetts Department of Housing and Community Development (“DHCD”) reported that the Town of Hingham’s affordable housing stock was less than six percent (6%) of the available housing stock. However, at the commencement of the public hearing process, the Zoning Board of Appeals noted that the Town of Hingham challenges the DHCD position with respect to the level of affordable housing, and that the Town asserts that it is not obligated to entertain this Application. The Zoning Board of Appeals informed the Applicant that the Zoning Board would hear and consider the Application on the merits, but that the Zoning Board of Appeals reserved the right to deny the Application on the merits and/or upon the basis that the Town of Hingham is no longer obligated to entertain affordable housing permit application under M.G.L. Chapter 40B because of recent increases in the Town’s affordable housing stock. The Zoning Board of Appeals further stated that the Board’s consideration of the Application, and potential granting of a comprehensive permit, would not be contradictory to the Town’s position regarding the current affordable housing stock, and would not be deemed a waiver of the Town’s position regarding its status under M.G.L. Chapter 40B and the applicable regulations.

THE ZONING BOARD’S AUTHORITY UNDER THE STATUTE:

The Applicant has proposed to finance the project through the Federal Home Loan Bank of Boston’s New England Fund (“NEF”). In a decision of the Housing Appeals Committee, NEF was recognized as an appropriate method of financing projects that include an affordable housing component. (Stuborn Ltd. Partnership v. Barnstable Board of Appeals, Housing Appeals Committee, No. 98-01.) The Stuborn decision noted that the local permitting authority would be “empowered to shape individual developments to fit their particular circumstances” when considering applications for housing subsidized under the New England Fund of the Federal Home Loan Bank of Boston. Accordingly, the Zoning Board of Appeals has the authority to determine the local needs for the affordable housing, and is empowered to fashion appropriate Regulatory Agreements, Deed Riders, and restrictions to maintain the continued availability of the affordable units; and Monitoring Agreements to assure that the affordable units are made available to persons meeting the eligibility criteria established for the affordable housing, and other appropriate terms and conditions. The authority of the Zoning Board of Appeals in reviewing the Comprehensive Permit Application is that denial or rejection of a Comprehensive Permit must be predicated upon a substantial factual basis. Also, a Zoning Board of Appeals is constrained from imposing such conditions and restrictions as would render the proposed project uneconomic.

SUMMARY OF REVIEW:

During the hearing process, the Zoning Board of Appeals heard extensive testimony from the Applicant and its consultants, Town Boards and Departments, as well as several neighbors and property owners in the vicinity of the proposed project. A number of concerns were identified including, without limitation: vehicular access to the Site off of Whiting Street; defining the affordability eligibility; deed restrictions to preserve the housing units within an affordable price range; and the creation of a Regulatory Agreement acceptable to the Applicant, its lender, and the Town. All of these concerns have been satisfactorily addressed by the Applicant, and specific conditions of the Project are set forth on Attachment B to this decision.

AFFORDABILITY:

After discussion and review of the public needs and the financial projections of the Applicant, the Zoning Board of Appeals has determined that the income based eligibility requirements shall be established such that the housing costs for the affordable units shall not exceed thirty percent (30%) of the income of a person/family earning seventy percent (70%) of the median income of the Boston PMSA. Also, the Zoning Board of Appeals has agreed that the initial sales price of the affordable units to eligible buyers shall not exceed One Hundred Ninety Five Thousand ($195,000) Dollars. The affordable units shall be conveyed with a Deed Rider which shall maintain the units’ status as affordable units in perpetuity. The Hingham Housing Authority shall be designated as the Monitoring Agent to assure that the income eligibility requirements are satisfied for qualified buyers of the affordable units. Also, there shall be a “local preference” for Hingham residents in eligibility for the affordable units. The Applicant shall be required to comply with requirements of the Monitoring Agent.

FINDINGS AND DECISION:

After extensive public hearings and evaluation of the testimony and documents submitted by the Applicant, neighbors, and Town Officials, the Zoning Board of Appeals found that there is a local need for affordable housing units, and that the Applicant’s proposal, as authorized under the provision of Massachusetts General Law Chapter 40B is consistent with those local needs. Therefore, the Zoning Board of Appeals has voted unanimously to grant the Comprehensive Permit subject to the following Comprehensive Permit Conditions and Waivers, which are attached hereto as Attachment C and incorporated herein by reference.

Also, the Zoning Board of Appeals shall review and approve the following documents which shall be incorporated in this decision as they are finalized by the Applicant, the Lender, and the Monitoring Agent:

a. Regulatory Agreement;

b. Deed Rider;

c. Monitoring Services Agreement; and

d. Condominium Master Deed, and Condominium Trust.

In accordance with the provisions of Massachusetts General Laws Chapter 40A, Section 11, the Zoning Board of Appeals certifies that copies of this decision and all plans referenced herein have been filed with the Hingham Planning Board and the Hingham Town Clerk.

This decision shall not take effect until a copy of the decision bearing the certification of the Town Clerk, that twenty (20) days have elapsed since the decision has been filed in the office of the Town Clerk and no appeal has been filed, or that if such appeal has been filed, that it has been dismissed or denied, is recorded with the Plymouth County Registry of Deeds and/or the Plymouth County Land Court Registry, and indexed in the grantor index under the name of the record owner or is recorded and noted on the owner’s certificate of title.

For the Zoning Board of Appeals

Stephen J. McLaughlin

Dated: January 22, 2009

1. The Project is approved for not more than twenty (20) residential condominium units (five (5) affordable) in eight (8) separate buildings on the Site.

2. Five of the units shall be affordable such that a family earning 70% of the median income of the Boston Primary Metropolitan Statistical Area will not pay more than 30% of gross income for the sum of annual debt service on a mortgage of ninety percent (90%) of the unit plus property taxes, property insurance, mortgage insurance, and any condominium fees.

3. Condominium fees will be discounted at the same ratio as the ratio that exists between the market price units and affordable units.

4. The affordable units shall be disbursed throughout the Project and shall be indistinguishable from the exterior from the market-rate units.

5. The roadway shall remain private. Neither the Applicant, nor his successors and assigns shall apply to the Town of Hingham for acceptance of the road.

6. Except as otherwise required by this Comprehensive Permit, and subject to the design modifications to be incorporated in the Final Site Plans, the Project shall be developed, constructed, completed and managed in substantial conformance with the Schedule of Plans (Attachment C).

7. Structural drawings for the retaining walls at the river crossing shall be submitted prior to construction.

8. The waivers from Town by-laws and regulations requested and granted are listed in Attachment D and incorporated by reference herein. All other Town by-laws and regulations remain in full force and effect.

9. The Project shall comply with all applicable state and federal regulations including but not limited to the State Building Code, State Sanitary Code, Architectural Access Board Regulations and Plumbing, Electrical and Fire Codes. State and federal laws and regulations in effect at the time this Comprehensive Permit is issued shall govern.

10. The Project’s stormwater management system shall comply with the DEP Stormwater Management Guidelines. Prior to the issuance of a Building Permit, a Stormwater Management report, including drainage calculations, catch basin and manhole inverts, shall be submitted to the Board of Appeals for review and comment by the Board’s consulting engineer.

11. Not less than thirty (30) days prior to the filing of an application for a Building Permit, the Applicant shall deliver to the Board of Appeals Final Site and Building Plans for the Project consistent with the testimony received by the Board during the public hearing. The Final Site Plans shall be of a quality and level of detail sufficient to allow the Board’s consulting engineer to review. No Building Permit may issue until the Final Site Plan(s) is/are approved.

12. All statutory requirements for submission to the Board of Appeals under the Act regarding financing and approvals must be received prior to the application for a Building Permit.

13. The Board of Appeals reserves the right to review proposed modifications to the site plan without rehearing, provided that in the Board’s sole opinion the change is minor, i.e. neither material nor substantial. If the Building Commissioner determines that the Project plans differ from those approved by the Board of Appeals in any way that the Building Commission feels is significant or material, he shall forward the plans to the Board of Appeals for review. Alternatively, the Applicant may make requests for minor modifications in writing to the Board, with any necessary supporting materials, for consideration at a public meeting of the threshold questions of materiality or substantially. Any modifications the Zoning Board determines to be more than minor shall be the subject of proper application, notice and public hearing.

14. The affordable units shall be restricted as low or moderate-income housing in perpetuity. Current residents of the Town of Hingham are granted a local preference for affordable unit selection.

15. Affordable units shall be readied for occupancy in the same time frame as the market rate units.

16. Prior to issuance of a Building Permit the Applicant shall enter into a Regulatory Agreement with the lending institution and the Town substantially in accordance with the draft Regulatory Agreement prepared by the Board of Appeals.

17. The Hingham Housing Authority, through its Director, will act as Monitoring Agents for the Project. Prior to issuance of a Building Permit the Applicant shall enter into a Monitoring Services Agreement with the Housing Authority. Services to be performed by the Monitoring Agent shall include but not be limited to:

a. review and approval of the affordable unit sales price and the architectural nuances and design to ensure similarity with the market-rate units;

b. review and approval of the affirmative marketing plan for the affordable units; and

c. review and approval of the selection process for occupants of the affordable units.

18. The final versions of the Regulatory Agreement, the Monitoring Services Agreement, the Deed Riders for the affordable units, the Master Deed for the condominium and the Declaration of Trust for the condominium shall be submitted to the Board of Appeals for review and comment by counsel.

20. In accordance with the terms of the New England Fund program the developer’s dividend shall be limited to twenty percent (20%). At the completion of the Project a cost audit shall be performed in accordance with the terms of the Regulatory Agreement.

21. The Master Deed of the condominium shall limit all units to no more than three bedrooms.

22. Individual deeds to all units shall be restricted to allow no more than two cars per unit.

23. The affordable units may be subleased for periods of not greater than one year. The lessee shall meet the identical guidelines a qualified buyer must meet and must be approved by the Monitoring Agent.

24. Parking shall be prohibited on the roadway; appropriate signs to that effect shall be posted and maintained.

25. Parking spaces shall be provided as follows: two garage and two spaces in front of the garage for all units except for the middle units of the three unit buildings, which will have one garage and two spaces in front of the garage; thirteen (13) off-street spaces located at dispersed locations throughout the development. The roadway and all off-street parking spaces shall be kept free of ice and snow and available for use at all times.

26. No additional trash dumpsters are permitted in the Project except for the one (1) provided for in the Project plans; the condominium documents shall reflect this restriction.

27. Project signs shall comply with the Zoning By-Law. No freestanding signs shall obstruct sight lines for traffic.

29. In order to conserve Town water to the maximum extent practical, the Applicant shall equip each Unit of the Project with water saving plumbing fixtures in every bathroom, kitchen and laundry area.

b. retaining a service for site maintenance and establishing a regular schedule for site maintenance;

c. repairing and maintaining all roadways, including drainage structures and utilities therein;

d. conducting yearly inspection, maintenance and cleaning of all elements of the drainage system, including but not limited to catch basins, drain manholes, detention basins, swales and pipelines; and

e. filing an annual report with the Building Commissioner, not later than April 30, that the annual drainage system inspection has been completed and all deficiencies corrected.

31. Construction work at the site and deliveries to the site shall be limited to the hours of Monday through Friday, 7:00 a.m. to 5:00 p.m. and 7:30 a.m. to 5:00 p.m. on Saturdays. In no event shall construction personnel be present on-site prior to 7:00 a.m. Monday through Friday or 7:30 a.m. on Saturday. No construction activities which involve the use of heavy equipment or which are otherwise noisy shall be conducted on Saturdays. No construction work shall be permitted on Sundays.

32. All staging areas including parking areas for construction labor shall be on-site. No parking on Town ways in the vicinity of the site shall be permitted by any person associated with the construction of the Project.

33. All utilities servicing the Project shall be installed underground. The Applicant shall install not more than two fire hydrants to be located in consultation with the Hingham Fire Department. The Applicant shall coordinate all work within the layout of a Town way with the DPW Superintendent.

35. Prior to the start of construction the Applicant shall engage the services of a qualified professional engineer to provide certification at the completion of work that the Project has been built in accordance with the approved plans. Prior to the start of construction, the Applicant will inform the Zoning Administrator of the name, business address and telephone number of the engineer retained. The engineer shall perform site inspections at his/her own discretion through the construction process to enable accurate final certification to the Board of Appeals of the Project’s compliance with this decision. The engineer will be made available at reasonable times with adequate notice for consultation with the Zoning Board.

36. Prior to the start of construction the Applicant shall schedule a pre-construction walk with the Building Commissioner and/or Zoning Administrator to set the limit or work line.

37. The sufficiency of completion of any unit or building for occupancy shall be determined by the Building Commissioner in his sole discretion.

38. At the completion of the project the Applicant shall submit as-built site and building plans stamped by the appropriate qualified professional.

39. Prior to the removal of topsoil and prior to major earthwork the Applicant shall install erosion and sediment control devices and so notify the Town’s Building Commissioner and Conservation Officer.

40. Detention basin vegetation shall be stabilized prior to stormwater discharge to the basins.

41. The exercise of the rights authorized by this Comprehensive Permit must be commenced within two years of the date on which this decision becomes final, according to statute. Failure to exercise these rights will cause the lapse of the Comprehensive Permit rendering it null and void.

42. The terms, provisions and conditions of this decision shall bind, burden and benefit the successors and assigns of the Applicant with the same effect as if mentioned in each instances where the Applicant is referred to or named.

43. Subsequent to the end of all applicable appeal periods and prior to the application for a Building Permit, the Applicant shall record this decision in the Plymouth County Registry of Deeds and shall provide evidence of such recording to the Board of Appeals and Building Commissioner.

44. The Applicant shall convey to the Town the .89 acre parcel of land identified as the “Public Safety Lot” on the plan entitled “410 Whiting Street Plan of Land in Hingham, Mass.”, dated November 8, 2008, and attached hereto as Attachment A. The Project may commence and proceed prior to conveyance to the Town. Prior to the conveyance, Applicant shall clear and level said parcel such that its condition conforms with the topographic contours as depicted on Sheet 5.1, Grading, Drainage & Pavement Plan, Derby Brook, 302-304 Whiting Street, Hingham, MA, dated May 21, 2007, and revised January 5, 2009. The parcel conveyed to the Town shall be subject to a restrictive covenant restricting the use of said parcel in perpetuity to the following uses: use as a public safety facility to be owned and operated by the Town of Hingham.

45. Each of the foregoing conditions and limitations is in and of itself material to the Board’s decision on the application. Accordingly, if any of the foregoing conditions are found by a court of competent jurisdiction to be void or unenforceable, this Comprehensive Permit shall immediately terminate and the property shall thereafter be brought into compliance with the requirements of the Zoning By-Laws. However, the Zoning Board may, at its option, following a public hearing, modify the comprehensive permit in such a manner as to eliminate the unenforceable provision.