Navigating the intricacies of Chapter 40B development proposals demands meticulous attention to regulatory frameworks and local context. In this blog post, we delve into the implementation regulations outlined in 760 CMR 56.00, specifically focusing on section 56.04(4), which delineates crucial considerations regarding site selection and project design. By examining the case of Rice Pond Village, a proposed Chapter 40B project in Millbury, Massachusetts, we illuminate the nuanced interplay between regulatory standards, community concerns, and project viability. Through a comprehensive analysis, we scrutinize the findings in determination and advocate for a judicious approach by the Millbury Board of Appeals in their decision-making process.

The implementing regulations for Chapter 40B are found in 760 CMR 56.00. Within section 56.04(4) of those regulations, entitled Findings in Determination, there are a number of terms to consider related to use and design. The relevant subsections read as follows:

Chapter 40B Regulations on Design Elements

(b) that the site of the proposed Project is generally appropriate for residential development, taking into consideration information provided by the municipality or other parties regarding municipal actions previously taken to meet affordable housing needs, such as inclusionary zoning, multifamily districts adopted under M.G.L. Chapter 40A, and overlay districts adopted under M.G.L. Chapter 40R, (such finding, with supporting reasoning, to be set forth in reasonable detail);

(c) that the conceptual project design is generally appropriate for the site on which it is located, taking into consideration factors that may include proposed use, conceptual site plan and building massing, topography, environmental resources, and integration into existing development patterns (such finding, with supporting reasoning, to be set forth in reasonable detail);

The regulations at subsection (b) frame the considerations for the choice of a site for the Project. Using this standard, the determination of consistency should be defined as a general allowance for residential development. The regulations at subsection (c) then consider the Project design which at this early stage is a “conceptual project design”. The Project design elements considered here include the use (expected to be predominantly residential), the building in terms of massing, site conditions defined by topography and environmental resources, and the Project's “integration into existing development patterns”?

The Chapter 40B Guidelines that were drafted to meet the goals stated in the Introduction to this Handbook define the “context” of a Project by elaborating on the relationships with adjacent buildings and streets, as described in the next sections.

Chapter 40B Guidelines on Design Review

The Chapter 40B Guidelines prepared by [Department of Housing and Community Development] DHCD (revised as of July 30, 2008) suggest approaches for applying the regulations with some additional terms and phrases in section 3. Findings, Design (760 CMR 56.04(4)(c)):

“Relationship to Adjacent Building Typology – Generally, a Project is developed in the context of single family dwellings and introduces a different form of housing into the neighborhood. Assuming that this is the case, it is important to mitigate the height and scale of the buildings to adjoining sites. In this context, it is particularly important to consider the predominant building types, setbacks, and roof lines of the existing context.

• The massing of the Project should be modulated and/or stepped in perceived height, bulk and scale to create an appropriate transition to adjoining sites.

• Where possible, the site plan should take advantage of the natural topography and site features, or the addition of landscaping, to help buffer massing.

• Design may use architectural details, color and materials taken from the existing context as a means of addressing the perception of mass and height.

Relationship to Adjacent Streets – Likewise, the manner in which the buildings relate to adjacent streets is critically important. Massing should take into account the pattern of the existing street frontage as well as maintain a human scale by reasonably relating the height of buildings to the width of the public way.”

These elements form the criteria under which the design review process is executed. The next sections provide an approach for completing the reviews including the sequential steps for the review, further define the terms used in the process and provide the forms for consistent applications.

Findings in Determination

MassHousing invoked 760 CMR 56.00 as the basis for dismissing the initial proposal concerning 200 dwelling units along both sides of North Meadow Road (Route 27) in Medfield, Massachusetts, under Chapter 40B (via a non-Local Initiative Program (LIP)). Furthermore, the proposed Chapter 40B Rice Pond Village project is deemed non-compliant with designated design standards based on the determinations made. As a result, the path forward for the Millbury Board of Appeals should be evident.

1. The property proposed at 17 Rice Road in Millbury, Massachusetts, falls within a Suburban II zoning district, where multifamily dwelling units are prohibited on minor roads. Rice Road, where the property is situated, actually qualifies as less than a minor road due to its pavement width being below 22 feet and its right-of-way being less than 60-feet in width. While Millbury has zoning districts that allow for multifamily development, this particular property does not fall within any of those districts.

2. The site layout and architectural scale are deemed excessively dense and tall for the proposed Chapter 40B location, exceeding the appropriate scale for the area, which has a median density of 2.5 dwelling units per acre. This is particularly evident as the surrounding properties consist primarily of one-story single-family houses, with only a few two-story single-family homes.

3. In an area devoid of three-story structures, and within a town featuring only one four-story building, the proposal of three four-story buildings reaching a height of 65 feet 6 inches exceeds the 30-foot height limitation imposed by the Suburban II zoning district and is incompatible with 760 CMR 56.00. Additionally, given the prevalence of mainly one-story single-family homes in the vicinity, this height discrepancy further underscores the project's incongruity with the surrounding neighborhood.

4. The architectural style is not harmonious with the single-family design, as the buildings are excessively large and fail to incorporate a stepped design approach to adhere to the design guidelines outlined in the Handbook: Approach To Chapter 40B Design Reviews. This constituted another grounds for MassHousing's denial of the initial application for Medfield Meadows, especially considering its Subsidized Housing Inventory (SHI) was less than 10% at the time, and equally applies to the proposed Chapter 40B Rice Pond Village project.

5. Our neighborhood firmly believes that the site design plans for the proposed Chapter 40B Rice Pond Village project disregard the delicate wetlands resources of Rice Pond and its surrounding wetland environment. This concern is amplified by past challenges with compliance with wetlands regulations, notably observed in the developers’ Highland Ridge project in Berlin, Massachusetts, which faced multiple stop work orders due to non-compliance. Rice Pond plays a crucial role in the ecosystem of the Blackstone River Watershed, a fact emphasized by the Blackstone Valley Watershed Association.

6. The proposed Chapter 40B Rice Pond Village project fails to integrate into existing development patterns in any aspect, including density, height, building typology, respect for wetlands resources, and public safety. Public safety is an area where Steven Venincasa and James Venincasa have failed to engage or accept accountability. They have outright refused to address the deficiencies at the Providence & Worcester Railroad crossing, the shortcomings of Rice Road as a whole, and the problematic intersection of Providence Street (Route 122A) and Rice Road, which has experienced numerous rear-end collisions exceeding those at Millbury Avenue and Howe Avenue. Additionally, the project lacks two required access points as mandated by local zoning, among other concerns. The overall design appears to prioritize a "cram and jam" approach to maximize the developers' profits rather than respecting the site and its surroundings.

MassHousing's denial of Medfield Meadows, situated on Route 27, a state highway with two wide travel lanes, double solid yellow lines, and two breakdown lanes, stemmed from its lack of integration with the surrounding area in terms of mass, height, density, building typology, and other factors. This parallels the situation with the proposed Rice Pond Village project, which also faces issues related to its location, however is proposed to be situated on a less than a minor road with notable public safety concerns necessitating mitigation measures. Scaling down the Medfield Meadows project from 200 units to 36, along with diminishing the mass and height of the buildings, and incorporating two access points—one primary and one for emergency egress—into the existing single-family neighborhood appeared to alleviate the concerns of nearby residents and integrate more effectively than the developers' original design proposals. The pivotal disparity lies in their respective approaches: following the rejection by MassHousing, the Medfield Meadows developer chose to engage in collaboration with the community. Conversely, Steven Venincasa and James Venincasa have explicitly stated their reluctance to interact with the community, disregarding and dismissing any feedback or input that contradicts their own agenda. As per the Massachusetts Executive Office of Housing and Livable Communities (EOHLC), entering into a Chapter 40B LIP agreement implies that both the community and developer commit to collaborating in shaping a proposed project to align with the community's needs. However, the Millbury Board of Selectmen and former town manager remarked that the interactions were anything but negotiations. Additionally, the Chapter 40B LIP process is supposed to entail ongoing collaboration between the developer and the community throughout the public hearing process to further tailor the project to meet the community's needs, which is not happening, at least to date. The developers have informed the town planner that they do not intend to downsize any aspect of the project, as memorialized in the town planners memo.

The Chapter 40B Local Initiative Program (LIP) agreement mandates the installation of a sidewalk along the north side of Rice Road, extending from the existing sidewalk on South Main Street to the intersection of Rice Road and Thomas Hill Road, as well as the submission of design plans for the reconfiguration of the Providence Street and Rice Road intersection. However, as of now, neither of these agreed upon contractual terms has been submitted to the Millbury Board of Appeals. The developers failed to submit several required documents alongside their application, and we find ourselves midway through the public hearing process, which adheres to a statutory timeline.

The Millbury Board of Appeals must carefully weigh each of these considerations and other issues raised during the public hearing process in their deliberations of this Chapter 40B application. The Chapter 40B Rice Pond Village project fails to conform to the standards delineated in 760 CMR 56.00 and the Handbook: Approach To Chapter 40B Design Reviews. Consequently, the proposed Rice Pond Village must undergo substantial revisions, downsizing, and conditioning to tackle the numerous concerns voiced during public hearings and through submitted comments. Alternatively, it should face rejection due to its non-compliance with 760 CMR 56.00 and local zoning and regulatory requirements, echoing the rationale behind the denial of Medfield Meadows by MassHousing.

Just as the Millbury Planning Board denied a proposal for 46 condominiums on the same site, it's imperative that town counsel write the decision in a manner that can withstand legal scrutiny before the Housing Appeals Committee (HAC) or in Superior Court. Poorly written decisions could result in successful appeals by these developers. MassHousing previously rejected the initial Medfield Meadow project, and as far as we know, the developer did not appeal the decision. In this instance, the developer pursued a Chapter 40B LIP agreement, resulting in the approval of 36 units comprising both apartments and individually owned townhouses.

Certain individuals mistakenly believe that submitting a proposed Chapter 40B project guarantees automatic approval, a misconception perpetuated by certain town officials, employees, and consultants. These individuals may lack the necessary knowledge or willingness to fulfill their roles effectively within the community. We demand strict adherence to our local zoning bylaws and regulations, established by our community, without waivers, variances, or exceptions granted. Any suggestion otherwise from public officials, employees, or advisors will subject them to potential consequences. The collective strength of "We the People" holds significant power in bringing about change. The Millbury Board of Appeals, along with other town officials, employees, and consultants, must exhibit resolve and dedication by advocating for residents and adhering to governing documents to ensure accountability. A project of this magnitude and density is not suitable for a minor road and would be more appropriate for a major street, devoid of the challenges associated with Rice Road.

The next public hearing for the proposed Chapter 40B Rice Pond Village project will be hosted by the Millbury Board of Appeals. It is scheduled for Wednesday, March 13, 2024, starting at 7:00 PM. The location for this event will be decided closer to the meeting date.