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HomeMy WebLinkAbout2025-07-17 Zoning Board of Appeals Minutes Approved Town of North Andover ZONING BOARD OF APPEALS Members Associate Member Michael T. Lis., Chair ����//� Matthew J.Ginsburg Laura Craig-Comin, Vice-Chair Zachary J. Hachey Frank J. Killilea, Clerk Melissa Rutherford James M.Testa Zoning Enforcement Officer Alexandria A.Jacobs, Esq Paul G. Hutchins MEETING MINUTES Date of Meeting: Thursday, July 17, 2025 Time of Meeting: 7:00 p.m. Location of Meeting: Virtual — Google Meet Signature: Terri MacNeil 1. Call to Order at 7:00 p.m. Members Present: Michael T. Lis, James T. Testa, Frank J. Killilea, Alexandria A. Jacobs, Matthew J. Ginsburg, and Melissa Rutherford Staff Present: Terri MacNeil Gavel given to: Michael T. Lis Presenters: Carolyn M. Murray, Esq., KP Law and Jean Enright, Planning Director, Town of North Andover The Chair welcomes everyone to a special edition of the North Andover Zoning Board of Appeals. This is a special session to discuss the procedures for a Zoning Board review of a 40B project. The Zoning Board of Appeals has not experienced a 40B filing, so the Town Manager set up a meeting with Carolyn M. Murray,Esquire from KPA Law to guide the Board through the process and unable Board members to ask question as to what the Board's responsibilities are, what they are allowed to discuss, what they are not allowed to discuss as a Board and to better understand the role of the Board and the larger community in this project. Carolyn M. Murray, Esquire from KP Law, introduces herself. For this meeting only, members of the public who wish to watch the meeting may do so on their televisions by tuning to North Andover GovCMA Channel Comcast 8 or Verizon Channel 26 or online at w .rarfi �rla: �r�°� .arg . Details e Collaboration with Local Boards Carolyn M. Murray explained that the Zoning Board of Appeals(ZBA)is statutorily required to distribute comprehensive permit applications to all local Notices and agendas are to be posted 48 hours in advance of a meeting excluding Saturdays,Sundays,and legal holidays.Please keep in mind the Town Clerk's hours of operation and make necessary arrangements to be sure that posting is made in an adequate amount of time.A listing of topics the Chair reasonably anticipates will be discussed at a meeting are to be listed on the Agenda.Note:Matters may be called out of order and not as they appear in the Agenda. Page 1 of 6 Town of North Andover ZONING BOARD OF APPEALS boards and departments immediately upon receipt to gather their feedback and expertise. Although other boards typically discuss applications in their separate meetings and provide memos, the ZBA can invite directors like those from DPW or Health to participate directly in discussions if further input is needed. However, the ZBA only acts in place of local boards for local regulations,not for state-level acts like the Wetlands Protection Act or Title 5 septic system regulations. • Zoning Override Authority (40B) Carolyn M. Murray noted that Chapter 40B allows developers,through the ZBA,to override all local zoning bylaws, including use and dimensional regulations, which can be challenging for boards accustomed to strict zoning enforcement. Michael Lis questioned the purpose of hearings if developers can override zoning. Carolyn M. Murray clarified that the legislature intended to retain some local input in project design and shaping, despite the statute's power from a developer's perspective. • Waivers vs. Variances Frank Killilea inquired whether developers need waivers or variances from the ZBA. Carolyn M. Murray clarified that the ZBA grants "waivers," not"variances," and developers are required to submit a list of all zoning bylaw provisions they request waivers from. The standard for granting waivers is "consistency with local needs," assessing whether local needs outweigh the need for regional housing, rather than the "shape, soil, and topography" standard used for variances. • Granting or Denying Waivers Frank Killilea asked if the ZBA has the option to deny a waiver. Carolyn M. Murray confirmed that the ZBA absolutely has the option to deny waivers,typically based on a local concern. Carolyn M. Murray also noted that a developer could argue that a denied waiver renders a project uneconomic,which would necessitate a separate discussion with the developer to demonstrate financial infeasibility. • Importance of Training and Planning Carolyn M. Murray strongly recommended that boards engage in training processes, especially if they are new to 40B applications or haven't reviewed one recently,as 40B is a"totally different animal"requiring a fresh approach. She also suggested reviewing and updating master plans and open space plans if they haven't been looked at in 10- 15 years, to see if they can be beneficial in approaching 40B projects. • Housing Production Plan and Safe Harbor Carolyn M. Murray emphasized the importance of having an updated and certified Housing Production Plan (HPP) as it can provide a "safe harbor" against 40B applications, potentially granting a one-year or two-year protection period if housing goals are met. Jean Enright clarified that their town's updated HPP is not yet certified. Carolyn M. Murray stated that certification by the Executive Office of Housing and Livable Communities (EOHLC) is necessary to utilize an HPP for safe harbor. • Updating Comprehensive Permit Regulations Carolyn M. Murray advised updating comprehensive permit regulations or adopting new ones before a 40B application is submitted, as applications are judged by the bylaws and regulations in place at the time of filing. Michael Lis confirmed that their planning board has kept regulations up-to-date due to their town meeting community structure. ZBA Minutes for July 8,2025 Page 2 of 6 Town of North Andover ZONING BOARD OF APPEALS • Consultant Fees and Peer Review Carolyn M. Murray highlighted the importance of including provisions for consultant fees in comprehensive permit regulations, as Chapter 44, Section 53G allows local boards to require applicants to pay for peer-review consultants. These consultants can provide technical assistance in areas like stormwater, traffic, landscaping, or architecture, which municipal governments may lack in-house expertise for, and help ensure compliance with local standards. • Consistency with Local Needs Standard Carolyn M. Murray explained that the standard for denying or approving a comprehensive permit is "consistency with local needs,"which balances local bylaws and regulations (especially those related to public health or safety) against the regional need for housing, particularly affordable housing. She noted that the state's push for more housing sets a high threshold for municipalities to deny permits based on having "enough" affordable housing. • Denial Criteria for Comprehensive Permits Carolyn M. Murray clarified that if a town denies a comprehensive permit, it must be based on a local rule, such as a requirement for open space, and the town must find that this local need outweighs the need for housing. For example, a town might deny a waiver for open space if it determines that local residents, especially families,need yards and recreational areas. • Appeal Process for 40B Decisions Michael Lis inquired about the appeal process if a comprehensive permit is denied. Carolyn M. Murray explained that if a town denies a comprehensive permit, the developer can appeal to the Housing Appeals Committee (HAC), a branch of the Executive Office of Housing and Livable Communities (EOHLC). Decisions from the HAC can then be appealed to Superior Court and, if necessary, to the Appeals Court. If the ZBA grants a permit, abutters can appeal directly to the court but not to the HAC. • Definition of "Party in Interest" for Appeals Carolyn M. Murray clarified that for appeals, similar to Chapter 40A, a party must be "aggrieved" by the permit grant,typically meaning they are an abutter or within 300 feet, indicating a direct impact from the development. She noted that a community member further away, simply opposed to the project, would be unlikely to succeed in court without demonstrating harm. Developers can also appeal granted permits if they believe imposed conditions or denied waivers render the project"uneconomic". • Treatment of Subsidized vs. Non-Subsidized Projects Carolyn M. Murray emphasized that Chapter 40B requires towns to treat subsidized projects (those receiving special financing, tax credits, or technical assistance)the same way they treat non-subsidized projects. This means that standards applied to conventional multi-family developments, such as those for open space, water, traffic, or lighting, must also be applied equally to 40B projects. Michael Lis concluded that this implies precedent matters in 40B cases, unlike typical zoning appeals where each case is taken on its own merits. • Common Safe Harbors Carolyn M. Murray detailed the most common types of"safe harbors" that can allow a town to deny a 40B application without appeal. These include having at least ZBA Minutes for July 8,2025 Page 3 of 6 Town of North Andover ZONING BOARD OF APPEALS 10% of the town's housing stock subsidized, having a certified Housing Production Plan, achieving a General Land Area Minimum ("GLAM") safe harbor (1.5% of land area occupied by subsidized housing, though complex to calculate), or having recently approved a large-scale project(300 units or 2%of total housing units). Michael Lis expressed skepticism about meeting the GLAM safe harbor due to the town's large surface area. • Related Application Safe Harbor Carolyn M. Murray explained the "related application" safe harbor, which provides a one-year cooling-off period if a related application for the same property was filed within 12 months prior to a 40B application. This safe harbor was introduced to prevent developers from threatening municipalities with 40B applications if a prior, less dense project was not approved. • Invoking Safe Harbor and Denial of Appeal Carolyn M. Murray stressed that achieving a safe harbor provides a significant benefit to municipalities as it grants the right to deny a comprehensive permit, and if EOHLC agrees the town is in a safe harbor, the applicant has no right to appeal the denial. She added that a town is not obligated to deny an application even if they are in a safe harbor; they can still hear it on its merits, approve it, or approve it with conditions, and the applicant still cannot appeal if safe harbor has been asserted. • Strict Timelines for 40B Applications Carolyn M. Murray outlined the strict timelines for 40B applications, noting that public hearings must be opened within 30 days of filing (compared to 65 days for a variance) and closed within 180 days of opening. To invoke safe harbor, towns must provide written notice to the applicant and EOHLC within 15 days of opening the public hearing. All deadlines can be extended with the applicant's written consent, and filing these extensions with the town clerk is crucial to avoid "constructive approval". • Quorum and Voting Requirements for 40B Michael Lis inquired about quorum and voting requirements for 40B cases. Carolyn M. Murray stated that for a five-member board, a majority of three members is needed to show up at each meeting and to vote in favor or against a decision. She confirmed that the "Mullen rule" (Chapter 39, Section 23D),which allows a Board member to miss a single session of a public hearing and as long as they review all of the materials from the missed hearing, they can still vote. • Peer Review Consultants in 40B Projects Carolyn M. Murray discussed the types of peer review consultants typically engaged for 40B projects, emphasizing that civil engineering and stormwater management are common areas of focus. Other important consultants include traffic engineers and hydrogeology experts, especially for sensitive areas or properties with high water tables. While landscape and architectural peer reviews may occur, boards tend to place less emphasis on these aspects compared to civil engineering and stormwater. • Affordable Housing and Local Needs Carolyn M. Murray highlighted the statewide presumption of need for affordable housing, which sets a high bar for municipalities to deny comprehensive permits. To successfully deny a permit, a municipality must identify a local need that clearly outweighs the need for affordable housing,with health, safety, and open space being examples of local needs. Municipalities that have not met the 10% affordable housing threshold ZBA Minutes for July 8,2025 Page 4 of 6 Town of North Andover ZONING BOARD OF APPEALS or the 1.5% general land area are particularly vulnerable to 40B applications, and Ms. Murray advised working to reach the 10%threshold to gain more discretion over future applications. • Public Input in 40B Hearings Carolyn M. Murray advised that public comment should be solicited at every public hearing for 40B projects, as with any public hearing process. She recommended an initial overview hearing to set the stage for the project,followed by subsequent hearings broken down by topical areas such as civil engineering, stormwater, and traffic. This structured approach helps manage public expectations and ensures the relevant experts are present for specific discussions. Public comments should ideally be confined to the topics being discussed during a given hearing to ensure appropriate personnel are available to address questions. • Valid Basis for 40B Denial Carolyn M. Murray clarified that a 40B permit denial must be based on a local rule related to public health and safety, and this rule must be documented in writing. She provided an example of school overcrowding, stating that while it is a valid community concern, it typically does not constitute a valid basis for denying a 40B permit unless there is a specific local bylaw or rule addressing it. If a denial is not based on a written local rule, it is likely to be overturned on appeal by the Housing Appeals Committee. • Role of Waivers in Deliberation Carolyn M. Murray recommended that boards begin their deliberation process by reviewing waivers requested by the applicant, as this can often clarify the direction of the decision,whether it leans towards approval or denial. She cited a case where a board granted a waiver for open space but then denied the permit on the grounds of inadequate open space, leading to a lost appeal due to the contradictory nature of the decision. Ms. Murray emphasized that local regulations applied to a proposal must directly relate to the impacts of that specific proposal, cautioning against holding developers responsible for existing traffic conditions not caused by their project. • Mitigation and Conditions for 40B Projects Carolyn M. Murray stated that boards can request appropriate mitigation for 40B projects, such as design changes, landscaping, or infrastructure improvements,provided these conditions do not render the project uneconomic. She noted that most imposed conditions relate to infrastructure, such as funding traffic signal reconfigurations to improve flow. While boards can push for mitigation, such demands should be proportionate to the projects size and impacts, and boards cannot arbitrarily demand a reduction in units without a valid,justifiable reason such as insufficient septic capacity or parking. • Modifications to Approved Comprehensive Permits Carolyn M. Murray explained that applicants can seek modifications to an approved comprehensive permit, which are categorized as "substantial" or"insubstantial". The Zoning Board of Appeals must determine within 20 days whether a modification is substantial, with substantial changes requiring a public hearing and insubstantial changes being approved at a public meeting without further advertisement. If the board fails to make this initial determination within 20 days, the modification is automatically deemed approved. Ms. Murray noted that modifications are fairly common and the board is limited to discussing only the specific area of modification requested by the applicant. ZBA Minutes for July 8,2025 Page 5 of 6 Town of North Andover ZONING BOARD OF APPEALS • Meeting Logistics and Support for 40B Hearings James Testa raised a question regarding managing other cases when 40B hearings can be lengthy and contentious. Carolyn M. Murray suggested that zoning boards often schedule 40B hearings on separate nights to avoid impacting regular business and allow simpler cases to be handled efficiently. Frank Killilea inquired about who coordinates the various issues and documents related to 40B applications, to which Ms. Murray suggested that a planning director or planning staff typically provide this support,though she noted that support structures vary by community and may require discussion with town administration. Michael Lis indicated that he would discuss this need for additional administrative support with town administration. • Virtual Meetings and Future Planning James Testa asked about the possibility of holding 40B meetings, especially for initial modification determinations, via Zoom or a hybrid format. Carolyn M. Murray confirmed that Zoom or hybrid meetings are permissible under current extensions for hybrid meetings. Michael Lis and Ms. Murray agreed that while convenient, in- person meetings often lead to better public participation due to the visual nature of plans and documents. The board also discussed the need to plan for meeting structure in anticipation of a 40B filing, with Michael Lis planning to discuss logistics offline to avoid open meeting requirements for case merits. Suggested next steps • Michael Lis will discuss with the town administration (1) the support needed for zoning board meetings, and(2)the filing fees and other regulations to determine if any changes are needed. • Michael Lis will email the group to discuss how to structure meetings in the event of a 4013, specifically regarding holding separate meetings for 4013s. • Michael Lis will keep in touch with Andrew Shapiro regarding technical assistance for the board. 2. Adjournment 9:00 p.m. M. Ginsburg makes a motion to adjourn, F. Killilea seconds. All in favor ZBA Minutes for July 8,2025 Page 6 of 6 TOWN OF NORTH ANDOVER COMPREHENSIVE PERMITS 40B TOWN - NORTH 0� ANDOVER M A S 5 A C_ H U Si E T T S PRESENTED BY CAROLYN M. MURRAY, ESQ. JULY 17, 2025 kli� KP LAW isclairner 0 � - AM- ALL MATERIALS©COPYRIGHT 2025 K P L V KP LAW,PC. ALL RIGHTS RESERVED. Engage in comprehensive planning. Approved r l affordable e housing p plan. Master plan, open space plan, tc. KP LA ALL MATERIALS©COPYRIGHT 2025 KP LAW,PC. ALL RIGHTS RESERVED. Update ZBA Comprehensive Permit Regulations Only local regulations in effect date application is filed may be applied Include provision for consultant fees Fees must be comparable to other land use applications KP LA ALL MATERIALS©COPYRIGHT 2025 KP LAW,PC. ALL RIGHTS RESERVED. 1 ¥ ¥ _ ¥ ¥ ¥ - ¥ - - ALL MATERIALS=COPYRIGHT 202; K ° LA%V - @ a%c ALL RIGHTS RESERVED. 1 , ■ 1 ■ ¥ ¥ 1 ¥ ALL MATERIALS=COPYRIGHT 202; K ° LA%V @ a%c ALL RIGHTS RESERVED. Ten percent of o housing stock on 1.5 �o of land area g ("GLAM"') SHI Large scale projects Related application (300 units or 2% of less than 12 months all housing units, prior to CP whichever is greater) application Planned production — need an approved Affordable Housing Production. KP LA ALL MATERIALS©COPYRIGHT 2025 KP LAW,PC. ALL RIGHTS RESERVED. � � I { ALL MATERIALS©COPYRIGHT 2025 K P L ANV KP LAW,PC. ALL RIGHTS RESERVED. o Open public hearing on CP application within 30 days of filing application o Written notice to applicant and EOHLC within 15 days of opening public hearing o Applicant may challenge safe harbor to EOHLC � o Tolls the 180-day public hearing deadline o EOHLC decision is appealable to HAC. ALL MATERIALS�COPYRIGHT 2o2sKP LAW,PC. ALL RIGHTS RESERVED. KP LAW o IPlicant must obtain PEL from sidizing agency prior to filing CP application. o Three jurisdictional requirements: o Public agency, nonprofit, or limited dividend­ organization; o Pro*ect fundable b subsidizing agency under low- or mo erate- income housing program; o Site control. `Conclusive as to jurisdictional requirements ALL MATERIALS©COPYRIGHT 2025 KP LAW,PC. ALL RIGHTS RESERVED. o Contents of application to subsidizing agency g a g Y o Notice to Chief Executive of Town o Comment period and site visit o Not appealable ALL MATERIALS©COPYRIGHT 2025 KP LAW,PC. ALL RIGHTS RESERVED. KP LA o Once PEL issued, Applicant may • . . . , file CP app lication to ZBA o Required contents by 760 CMR 56.00 and ZBA Comprehensive Permit Regulations o Filing fee o Filing fee must be paid in full with application — Hanover case ALL MATERIALS�COPYRIGHT 2o2sKP LAW,PC. ALL RIGHTS RESERVED. KP LFaW o Project will typically need relief from provisions of zoning and other local bylaws, including use. Applicant su s wa ver list." or "exceptions") o ZBA will obtain advice from other boards on the waiver requests — e.g., advice from Conservation Commission on whether to waive provision of wetlands bylaw. _ o ZBA not required to grant waiver of any bylaw or other local regulations but may do so if it would be "consistent with local needs." ZBA not required to grant waiver of any bylaw or other local regulations unless denial of the waiver renders the project "uneconomic." ALL MATERIALS©COPYRIGHT 2025 KP LAW,PC. ALL RIGHTS RESERVED. KP LA y � Al lkllmwl _ ALL MATERIALS©COPYRIGHT 2025 K P L V KP LAW,PC. ALL RIGHTS RESERVED. ■ } i \ < . s �y k z � xy \_ \ ALL MATERIALS=COPYRIGHT 202; K : LA%V @ LAW,PC. ALL RIGHTS Rerwm ■ � } a ¥ a ¥ <^ \ \ ^ N%: . ¥ �- ��. : r y. . s= 2\ ALL MATERIALS=COPYRIGHT 202; K : LA%V @ LAW,PC. ALL RIGHTS Rerwm o Standard: reasonable and consistent with local needs. o Balanc in test: Does need for affordab e housin outwei h valid plann1n objections to the details of the o osa such as health open spaceub � cpsafety? o Strong in favor of yyy housing. o North Andover vulnerable where less than 10% o f all housing is affordable. ALL MATERIALS©COPYRIGHT 2025 KP LAW,PC. ALL RIGHTS RESERVED. KP LA o Regional need for affordable housing and number of low-income persons in the Town. o Health and safety o occupants ants of . propose ousin and residents o........ f Town. o If denied, must be based on local g bylaw, regulation or rule which is applied consistently to - nonsubsidizedprojects. Nlb- ALL MATERIALS©COPYRIGHT 2025 KP LAW,PC. ALL RIGHTS RESERVED. KP LA o Examples: local rule based on public health, safety or open space. o Cannot deny solely because it does � " • not conform to local requirements � (remember waivers) . o Local regulations must relate specifically to the proposal. o Refer to EOHLC Comprehensive Permit Guidelines ALL MATERIALS @ COPYRIGHT 2o2sKP LAW,PC. ALL RIGHTS RESERVED. KP LAW o The obligation for 10% affordable housing will not go away, so make the best of it. o Use comments from local officials, peer review, and residents to address local concerns. Request a ro riate� pp mitigation.p ALL MATERIALS©COPYRIGHT 2025 KP LAW,PC. ALL RIGHTS RESERVED. KP LA v TI �� of I S� A. J E � I 3 f r QJ of It`s VCP _�t,2 Ls �.- k A r � ` r 0 # 3 �- ( \ I ALL MATERIALS©COPYRIGHT 2025 K P L V KP LAW,PC. ALL RIGHTS RESERVED. o Applicant can appeal denial or conditions to Housing Appeals Comn-n* ttee (HAC) . o Other aggrieved persons can appeal pursuant to G-L c. 40A, 17 (Superior Court or Court) . ALL MATERIALS©COPYRIGHT 2025 KP LAW,PC. ALL RIGHTS RESERVED. KP LA o Written notice to Board by the Applicant 0 20 days to determine if substantial, and if so, public hearin within 30 days with • • • • full notice under G�.c. 40A. § 11 o If insubstantial approve at public meeting within 26 days or automatically incorporated into decision o CP regulations provide limited guidance as to what is substantial/insubstantial modification ALL MATERIALS�COPYRIGHT 2o2sKP LAW,PC. ALL RIGHTS RESERVED. KP LFaW Any qwestions Carolyn M. Murray, Esq. KP Law, P.C. 101 Arch Street, 12th Floor Boston, MA 02110 (617) 556-0007 cmurray(a�,k j2law com www.k-Dlaw.com