CARDD attorney: 40B hearing must be suspended
Methuen portion of project remains under appeal
DRACUT >> An attorney hired by opponents to the proposed Murphy’s Farm development in East Dracut is arguing the Zoning Board of Appeals must suspend its ongoing public hearing on the project.
That opinion came in a letter to the ZBA that told the board it would contravene state law to continue.
But the contents of that warning went undisclosed to anyone witnessing the March 21 ZBA meeting if they were not members of the ZBA, counsel for the ZBA, or the attorney for the developer of the proposed complex.
Several issues, which could delay the hearing process, coalesced at that meeting and “the letter,” as it was described by those who had it in their possession, pointed out one of them.
ZBA Chair Scott Mallory acknowledged the letter in vague language, saying there were questions about “how the process should continue considering things that have come to light.”
The ZBA, which is considering the application of O’brien Homes of Andover for a comprehensive permit to develop 300 four-bedroom apartments on 50 acres off Wheeler Street and a small plot of land in Methuen, anticipated a status report from Donald Borenstein, attorney for Kevin O’brien.
Borenstein told the board he would give them an update on the long-awaited design engineering report, water and sewer reports and a traffic engineering study.
But news of “the letter” seemed to overshadow his updates.
The meeting began with a debate about whether to read and discuss “the letter” which had been delivered a day earlier to Community Development Director Alison Manugian, ZBA members, the ZBA attorney
and the attorney for developer Kevin O’brien.
The board agreed the document is part of the public record, but some ZBA members had not read it. The board’s lawyer, Karis North, had read it but had not had time to analyze it. Borenstein also wanted more time to review it.
The letter and its author remained a mystery until the public was invited to comment on the proposed development.
When it came time for public comment, Citizens Against Reckless Development in Dracut member Linda Hayes urged the board to let her read the letter aloud. But her request was denied. In her comments, however, she disclosed that the author was Dennis Murphy of Hill Law, who represents CARDD.
After the meeting, The Sun requested and received a copy of the letter from CARDD. The letter points to a decision by the state Housing Appeals Committee staying, or halting, ZBA hearings in Methuen on the Murphy’s Farm project.
Methuen is arguing that it is entitled to safe harbor protection from Chapter 40B. The initial HAC decision on that argument went against the city, but it is appealing the ruling.
Murphy, the CARDD attorney, wrote to the Dracut ZBA that the Dracut and Methuen hearings are about the same project. Therefore, “It makes little sense to continue permitting the project in Dracut when a comprehensive permit for the same project is also required by Methuen, which is on appeal at HAC.”
Other issues that the board heard about involved a meeting O’brien held with the town Planning Board and a comment from the peer review of a traffic engineering study.
It was reported to the board that O’brien had been to the Planning Board to renew subdivision approval for the same 50-acre site.
“In addition to the stay required by the HAC appeal, the public hearing should also be stayed because the applicant recently renewed its subdivision approval for the same site,” Murphy’s letter read. “Under the 40B regulations, subdivision approval is considered a ‘related application’, which bars any 40B project from being considered on the same land for 12 months … .”
Another potential delay in the hearing process involves the question of market demand for four-bedroom apartments. The traffic engineers for the town are having trouble estimating traffic volume because there’s no reliable way to measure anticipated traffic count with four-bedroom apartments.
Consultant Ed Peznola of Hancock Associates said in his 25 years of experience, “I have never seen anything like this.” He’s seen single-family home projects with four bedrooms and apartments with one, two, and sometimes three bedrooms. But he has never seen a development of 300 apartments all with four bedrooms.
Peznola strongly recommends that someone, either the town or the developer, do a market analysis to see if there is any demand for four bedrooms.