THROWBACK TUESDAY: 40B and Me

I originally wrote this in February of 2022, following the Planning Board's denial of a housing project off Rice Road. Many believed that the Planning Board was the final step, but others were sure the developer would move toward an affordable housing build. With the Board of Selectmen considering the 40B proposal this evening, I thought it might be worth revisiting.

The Rice Road fallout continues.

In case you’re just joining us: a regional developer with a number of existing residential builds in Millbury proposed a project off Providence Street. The 56-unit plan was met with significant opposition from most of the residents of Rice Road, and the developer requested a series of zoning waivers from the Planning Board to gain final approval. Whitney Street Home Builders, the organization leading the application, made a number of concessions to address the concerns of the Planning Board and of the neighborhood in order to get those waivers approved, but ultimately drew a line in the sand at paying to install a railroad gate. The Planning Board, who has not shown themselves to be professional, appropriate, or capable of acting in the best interests of the town they purportedly serve, spent seemingly as much time bickering at each other and complaining about the process as they did deliberating over the Rice Road project.

And Act I of this Pawnee-ian tragedy closed on Valentine’s Day, when the special permit was declined 3-0.

I’ve spilled plenty of ink on this topic in the last few weeks, but if members of the Planning Board spent half as much time on understanding the benefits of the Rice Road project versus the risks of declining it as they spent on writing angry letters to the local paper, I probably wouldn’t need to write about this for a third week in a row. With that said, however, it’s the most drama we’ve had in town since the town manager screening committee debacle, and the fun has just begun.

So the next question is simple: what’s next? I reached out to Steven Venincasa, the developer from Whitney Street, but he did not respond as of deadline. I did, however, speak to one elected official in Millbury and received word that Venincasa will be letting his next actions speak for him, so it’s worth exploring what those are.

First and foremost, Venincasa was on record: if the Planning Board did not approve the project, he would begin the process of converting the townhouse plan into what is called a “40B” project. 40B refers to Massachusetts General Law Chapter 40, which, to quote the state website, “enables local Zoning Boards of Appeals to approve affordable housing developments under flexible rules if at least 20-25% of the units have long-term affordability restrictions.” What constitutes “flexible rules?” In the context of Rice Road, this means avoiding density restrictions (for example, if a neighborhood’s zoning requires an acre of land for single family residences, a 40B application and approval can ignore that), infrastructure changes (possibly say goodbye to any Rice Road improvements, and forget about a railroad gate) and ensuring the project is economically feasible. Put simply, a 46/52-unit townhouse development turns into a 180-200-unit affordable housing project, and there’s little anyone can do about it.

Maybe the Planning Board thought he was bluffing. Maybe the Planning Board didn’t care. Maybe the Planning Board didn’t understand that this was an option at all. Steven Venincasa knew this was an option, though, because he has initiated or succeeded with several 40B projects in the region.

So now we’re likely to have a 40B battle on our hands because the Planning Board failed to recognize a good project when it was right in front of them. The Rice Road folks believe they found their way out on this. Step one was denial of the application. Step two is an effort to rezone the neighborhood and ensure another development like Whitney Street’s cannot happen in the future; signatures and a warrant article have allegedly been submitted to town hall.

Step three is a little more unspoken. Language in 40B speaks of a delay between a project denial and a 40B application. I suspect this supposed 12-month “cooling off” period that the neighborhood is banking on will give them enough time to regroup and/or outright exhaust Venincasa and Whitney Street until they give up.

They forgot about LIP.

LIP stands for “Local Initiative Program,” also more casually referred to as a “friendly.” This allows the developer to work with the town (usually through the Board of Appeals) prior to an official 40B application, and can occur within the 12-month waiting period. Put another way, Whitney Street could apply through a “friendly” tomorrow if they were ready, wouldn’t need to wait a year, and could ignore a lot of the more pesky zoning issues.

Could the town deny the “friendly?” Well, it can try. But Millbury is far, far below the 10% affordable housing threshold required by the state. The state’s Housing Appeals Committee would then review the plan, see how far below the 10% minimum we are, and likely approve the project. At least the LIP will give more responsible town officials some input over the process, but, as of my deadline? The 46-unit project is dead, and a 200-unit project is probably going to replace it.

Reasonable people can disagree on the Clearview development. Skepticism regarding the Canal Street apartments is not off-base. I can understand why many seek rules governing the look of buildings in a given area. Opposing this project on Rice Road never made much sense to me to start, and especially after the 40B option landed on the table - Venincasa has a solid track record and it was obvious to any competent observer that something was getting built there.

Instead, the Planning Board took a good project with a developer willing to give them nearly everything they wanted, and threw it away. Whether it’s a power trip, a misguided crusade, general cowardice (how does anyone abstain on this vote, by the way?), or an inability to understand the issue in front of them, the simple fact is that there was an opportunity to do right by the town and by the residents of Rice Road. The Planning Board failed at that basic task.

To close, while verifying my understanding of 40B with an unnamed employee at town hall, I offhandedly noted that it looks like the Planning Board really screwed this one up. They merely responded with laughter and two words: “no comment.”

That ultimately tells us all we need to hear.

Jeff Raymond is a nearly 40-year resident of Millbury. He doesn't envy being the Board of Selectmen right now. Email him at jeff.raymond@bramanvilletribune.com. Follow him on Twitter at @jeffinmillbury.