Decision Time For Rice Pond Village 2.0
The Millbury Board of Appeals concluded the public hearing for the proposed Chapter 40B Rice Pond Village project on Wednesday, July 24, 2024, after many months of public discussions. Throughout this period, neighbors and residents from across the town voiced their concerns and shared insights about the project. The consensus among the community is that the proposed development is unsuitable for Rice Road due to various public safety concerns and its inconsistency with the neighborhood’s context in terms of density, height, and massing.
The Millbury Board of Appeals must now consider the facts presented, the relevance of local zoning and other development regulations, and the assessment of public health and safety. Their decision should be based solely on these considerations, without influence from personal feelings, political ideologies, or other beliefs. It is important to note that recent elections are unrelated to Chapter 40B, which was enacted in 1969, more than 55 years ago. Their decision should be independent of current state agendas for increased housing.
The Town of Millbury’s inability to meet its 10% Subsidized Housing Inventory (SHI) “Safe Harbor” threshold is significantly due to developers such as Steven Venincasa and James Venincasa, who have not previously developed Chapter 40B projects in Millbury. If their latest proposed project were approved, they would control 56% of the rental market with properties of eight or more dwelling units, effectively creating a monopoly. This situation also reflects the shortcomings of town officials and employees, particularly those in planning and development. Many might be surprised to discover that Millbury does not have a dedicated employee to market the town for residential and commercial development. This absence contributes to the current housing challenges and a more varied tax base. That being said, we, as a community, should not simply accept what is proposed to us, especially projects that do not comply with zoning bylaws, could jeopardize public safety, or impose substantial financial burdens on taxpayers. Common sense must be a factor in all decisions made by boards, committees, town employees, and residents; otherwise, we risk harming our own interests and the collective good.
It should be noted that Millbury is not alone in failing to meet its 10% SHI goal. 80% of communities throughout the Commonwealth of Massachusetts also fall short of this target. Achieving SHI is a constantly moving target; as more housing units are built, a community's SHI percentage can actually decline.
Below are direct excerpts from the “Chapter 40B Handbook for Zoning Boards of Appeal,” which serves as the foundation for the Millbury Board of Appeals’ deliberation and decision on the proposed Chapter 40B Rice Pond Village project. The principal author of this handbook is Judi Barrett, the state Chapter 40B consultant hired by the Town of Millbury to assist and guide the Millbury Board of Appeals.
The Millbury Board of Appeals should make its decisions independently, without undue influence from or consideration of the actions of other boards, committees, town employees, or consultants. This includes the Millbury Board of Selectmen, who entered into the Chapter 40B Local Initiative Program (LIP) agreement, which does not bind the Millbury Board of Appeals to any commitments or outcomes. Additionally, Town Planner Conor McCormack frequently disregards residents' concerns on nearly every project, advising boards to bypass local zoning bylaws and development standards through waivers that favor developers. He also omits public comments from his draft decisions, making it more challenging for boards and committees to consider and review them during their deliberations. He adopted this practice from his mentor, the previous Town Planner, who, according to many, similarly excluded input of abutters and concerned residents in an attempt to slant decisions in the developer’s favor. At the outset of this proposed project, Millbury Planning Board members Richard Gosselin, Jr. and Francis DeSimone submitted a detailed memorandum to the Millbury Board of Appeals, explaining why the majority of the Millbury Planning Board denied the previous project on the same site by the same developers. They emphasized that the reasons for the denial remain unaddressed and are likely to be exacerbated by 192 apartments, even more so than by the originally proposed 46 duplex condominiums. Therefore, the responsibility for the decision in this matter lies solely with the members of the Millbury Board of Appeals. The neighborhood should not be blamed for refusing to concede to the developer's demands to ignore public safety and permit construction in an unsuitable location. Similarly, the Millbury Planning Board should not be faulted for upholding their obligations to the townspeople in this exceptional case.
At that time, Millbury Planning Board members Richard F. Gosselin, Jr., Matthew Ashmankas, and Terry Burke Dotson had the conviction to say no, denying the previous equally ill-conceived project plans. In contrast, Steven Venincasa and James Venincasa did not accept the denial of their proposed project well. Steven Venincasa publicly said that he never wanted to come back before the Millbury Planning Board. It is now time for other boards, committees, and town employees to hold these developers accountable to our local zoning bylaws and development regulations and stand up for existing neighborhoods. Other neighboring communities have done so, leading these developers to abandon their development plans, at least for now.
Decision
The Zoning Board of Appeals (ZBA) must issue a decision on a comprehensive permit within 40 days of the public hearing. The decision must be approved by a simple majority of the ZBA members sitting on the case. The decision must be filed with the city or town clerk, and once it is filed, a 20-day appeal period ensues. An aggrieved developer files an appeal with the Housing Appeals Committee (HAC). Other parties seeking to challenge approval of a comprehensive permit file their appeal in the Superior Court or Land Court pursuant to M.G.L. c. 40A, §17.
Denial
Chapter 40B authorizes a ZBA to approve as proposed, approve with conditions, or deny a comprehensive permit application. The HAC will not overturn local denial of a comprehensive permit if the city or town meets one of the statutory minima or another safe harbor under the Chapter 40B regulations. Except for these circumstances, however, the HAC has generally not supported denials if the ZBA could have granted a comprehensive permit with reasonable conditions to protect health, safety, open space, and site and building design concerns. Accordingly, ZBAs should view denial of a comprehensive permit as a “last resort” measure to be taken only when there is no practical way to approve the project with conditions.
Approval With Conditions
The best interests of the community and the developer are served when the ZBA issues a decision agreeable to both. A comprehensive permit resulting from reasonable compromise usually means increased local control, decreased costs (fewer delays, legal costs, and consulting fees), and better housing. The ZBA may impose conditions to eliminate or mitigate the adverse impact of a proposed project, e.g., relocating an entrance onto a public road when the original entrance did not provide adequate sight distance.
To facilitate open communications with the developer and ensure that the public understands what the ZBA intends to do, the ZBA should draft preliminary conditions of approval and provide them to the developer while the public hearing is still open. Developers do not have to respond, but usually they do because they want a comprehensive permit that will allow them to build housing. The ZBA should also ask the building commissioner to review the draft decision and provide comments and suggestions. It is important to remember that when the developer is ready to start construction, administration of the comprehensive permit will fall to the building inspector. It makes sense to verify that the ZBA’s decision is specific and clear enough for the building inspector to interpret, apply, and enforce it.
If the ZBA and applicant cannot reach agreement, the ZBA needs to ensure that the conditions it plans to impose will withstand review by the HAC. The decision must have carefully developed findings of fact that are supported in the record by testimony from qualified professionals (peer review consultants and municipal staff). For appeal to the HAC of an approval with conditions, the developer has the burden of proving that one or more of the ZBA’s conditions makes the project uneconomic. If the developer satisfies this requirement, the burden shifts to the ZBA to show that the conditions are consistent with local needs. In these cases, the HAC’s duty is to balance the regional need for affordable housing with the degree to which the project threatens public health or safety or the environment, or is seriously deficient in terms of site and building design or provision of open space.
Format
There is no required format for a comprehensive permit decision, but typically it contains the following components:
Procedural History: a summary of the application, location of the site, basic statutory and regulatory requirements (e.g., hearing dates, notification dates, the Subsidizing Agency’s Professional Engineer (PE) determination date, identification of ZBA members sitting on the case), and a summary of the key issues raised during the hearing as well as the applicant’s response.
Governing Law: Citation of Chapter 40B and the requirements it imposes on the municipality and the applicant.
Findings of Fact: The ZBA’s factual determinations on matters within the scope of the statute (e.g., the city or town’s progress toward achieving the statutory minima, how the project addresses local concerns and why the ZBA’s decision is consistent with local needs)
Decision: A statement that the application is approved, approved with conditions, or denied.
Conditions: Assuming an approval, the conditions section is the heart of the decision. It will eventually be used by the building official as a checklist to determine whether the developer has met all of the requirements for a building permit and later, a certificate of occupancy. As such, the conditions must be written clearly and succinctly, they must describe actions that can be measured in “yes” or “no” terms, and they cannot include requirements for further review or approval by the ZBA.
The conditions section of the permit is usually divided into four parts: conditions that address basic legal requirements (e.g., the identity of the applicant and holder of the permit, the number and percentage of low-income units, the duration of the deed restriction, titles and dates of the plans that comprise the approved plans under the permit, etc.), conditions that must be met prior to issuance of a building permit, conditions that must be met prior to issuance of a certificate of occupancy, and general conditions. The developer should send a draft of the conditions to the subsidizing agency for review before they are finalized.
In addition, the ZBA’s decision should provide for ongoing monitoring of the development once the Subsidizing Agency’s monitoring role has ended. Conditions that address future monitoring and the applicant’s responsibility (if any) will help to ensure that affordable units remain affordable and eligible for the Subsidized Housing Inventory (SHI).
Signature Page
Exhibits: typically, a list of approved waivers and a list of all pertinent documents of record on file with the ZBA.
As noted by Millbury Board of Appeals members and others, the Board's decision is likely to be challenged in an appeal by developers, abutters, or both. Given this probable outcome, the Millbury Board of Appeals should ensure that all documentation includes thorough findings of fact in their decision is defensible in court. If the Board decides to grant approval with conditions, each waiver and project condition must be explicitly defined as intended by our neighborhood, the recipients of the Board’s decision, with no room for deviation.
Aside from developers Steven Venincasa and James Venincasa, almost no one supports this project due to its location, density, height, massing, and, most critically, its high likelihood of exacerbating existing public safety issues. As was clearly emphasized again at the last public hearing that, it's not a question of if someone will be injured or worse, but when.
The community is counting on the Millbury Board of Appeals to uphold their oath and obligation to the community as a whole. They must not concede to developers who, disregarding the concerns of our neighborhood, town, and public safety, are simply aiming to line their pockets. The execution of the LIP agreement does not obligate the Millbury Board of Appeals to make any decision favoring this proposed Chapter 40B project.