Setting the record straight


CHR CLAIM: “Over the past few years CHR has proposed three different plans to the Town to add new housing”.
RESPONSE: The three plans were all more similar than different, and were unresponsive to concerns of the Town. They all represent maximum buildouts. The 2009 and 2010 plans included adding the same number of units – 466. Both involved tall 6+ story buildings in an area zoned for a maximal height of 2.5 stories (35 feet). Both proposed to pave over large portions of the greenbelt that between Hancock Village and abutting single family homes. Despite concerns raised about the impact this number of units would have on the Town and talks that extended over 2.5 years, CHR never altered this number. The 2011 plan recently proposed by CHR likewise involved a maximum buildout. This maximal buildout involves half the property and therefore involves 193 rather than 466 units. CHR publicly indicated that the other half will be built out when logistically feasible.

CHR CLAIM: “CHR proposed 466 new units at Hancock Village… This is the number of units that CHR believes is allowed by the Floor Area Ratio calculation for the site.”
RESPONSE: At public meetings, CHR consistently stated that floor area ratio calculations allowed them to build 466 new units by right. However, floor area ratio is only one planning or zoning criteria. Without special permits, CHR can build not more than 5 units. With special permits, frequently granted in Brookline, the number is greater but difficult to establish. The Planning Department’s analysis specifically pointed to height of the new buildings as one factor that could limit the number of new units. All plans submitted by CHR showed 6 and 7 story buildings where the zoning limits height in that area to 35 feet.

CHR CLAIM: “In 2009 CHR requested a committee be formed by the Selectmen to determine the best approach to develop rental housing at Hancock Village. CHR hoped to have a plan for the entire property. CHR proposed to add 466 units at HV…..The plan was scrapped when it became obvious that this plan would have a negative financial impact”.
RESPONSE: The Selectmen formed the town-wide HV Planning Committee, which met for over 2 ½ years. The Committee widely represented members of the Town’s boards and committees, Town Meeting Members, and Selectmen. Although CHR requested formation of the Committee, CHR proved to be unresponsive to the Committee’s input. For example, the committee suggested other options for developing the land, like a hotel, assisted living community, retail or commercial, but CHR rejected them. CHR’s unresponsiveness to the Committee’s input was noted in the Committee’s final report.
Concerns about the cost of Hancock Village were confirmed when a study by the Town presented on June 10, 2009 shows that HV annual cost to the Town is over $2 million dollars in excess of revenues. Indeed, conservative estimates indicated that the proposed buildout would cost the Town an additional $1 million dollars or more annually, even though very conservative student density and school expense estimates were used. The validity of those density and expense estimates were never thoroughly vetted in a public discussion with Town officials who have direct experience with actual student density and school expense data. If more realistic numbers were used based on current densities and expenses, this proposal was a massive money loser for the Town.

CHR CLAIM: “In 2010, a new plan was proposed with the same number of units but with several changes... The project was modified to include a senior housing building…”
RESPONSE: The 2010 replacement plan again proposed 466 units, tall 6+ story buildings in an area zoned for no more than 2.5 stories (35 feet), and paving over large portions of the greenbelt between Hancock Village from neighboring homes. Both plans represented a maximal buildout. Approximately half of the units were now proposed as 55 and older senior housing. This type of senior housing requires only one individual of a household to be over 55, and 20% of units have no age restriction. Although CHR’s fiscal impact analysis makes the assumption that the senior housing will not add to school costs, this key assumption is questionable.
Important questions about the enforceability and durability of senior housing restrictions remain unresolved. Market analyses to indicate whether there was a need or demand for senior housing in the area for the projected price range. CHR was unable to describe any facilities or programs that would make a senior-restricted housing development attractive to seniors and failed to address the limited public transportation available to this relatively isolated and open location. An economically non-viable senior restricted housing development would likely have to be converted to an open development to make it economically viable, i.e. exactly what CHR did to the original senior dominated Hancock Village apartments in the 1990s, leading to the subsequent massive increase in school students from South Brookline.

CHR CLAIM: The new [2010] plan showed a net fiscal benefit to the Town. While CHR and the Town’s fiscal impact consultants different on the amount of the net fiscal benefit, they agreed the development would have an ongoing positive fiscal benefit [of $374,274 to $731,000].”
RESPONSE: The Selectmen have publicly indicated that this fiscal impact analysis is flawed. CHR’s consultants assumed that senior housing would produce zero school children. This is inaccurate, as noted above. In addition, highly conservative student density and school expense estimates were used for the age-unrestricted units. The validity of those density and expense estimates were never thoroughly vetted. The result was that 466 units were assumed to generate only 24 school children. The Town’s consultant did not independently analyze the new proposal. Rather, the Planning Department applied the Town’s consultants figures, using the same questionable assumptions as CHR’s consultant.
The third and current 2011 proposal still involves a maximal buildout. This plan will be carried out in two phases, the first of which will be a maximal buildout on the east (Russett Road) side of the property involving 193 units. A second phase of development of the west (Beverly Road) side of the property likely involving the maximal number of units has been mentioned by CHR publicly but has not been formally proposed. The 2011 proposal still involves a large 6+ story building in an area zoned for no more than 2.5 stories (35 feet) and paving over the greenbelt. The plan was never submitted for formal financial analyses, but it is most similar to the original 2009 plan, and therefore its large negative impacts on Brookline’s budget and schools will be similar, if not worse.

CHR CLAIM: Some of the neighbors insisted, and still insist to this day, that there is a “no-build” restriction on the portion of Hancock Village land near the neighbors. The Town Counsel, Jennifer Gilbert, has repeatedly indicated that there is no restriction currently in place.”
RESPONSE: Hancock Village was established in 1946 to provide affordable housing to returning war veterans. Town representatives were aware of potential future problems with unrestrained development, and therefore established an agreement, recorded in the Town Meeting records, that set limits on the type of development permissible on the multifamily zoned land: Town-house style garden apartments no more than 2 ½ stories in height and with 80% green space. In a separate action, land between the multifamily development and abutting properties, measuring ~100 ft in width, was left zoned as single family to serve as a “buffer” between the established homes and the new development to prevent construction of multifamily housing.
This arrangement has preserved Hancock Village as an excellent example of a “Garden Village” housing development. Moreover, it has created a harmonious relationship between the Hancock Village and the less dense adjoining neighborhoods. The agreement spelled out a commitment made by both the original developer and the Town to restrict further development on the multifamily property. The enforceability of this agreement at present is uncertain. However, the intent of the agreement is clear from the original documents.
Development on the “buffer” was and continues to be limited single family zoning, and it is not at all clear that this area would accommodate homes and an access road as the land is only 100 feet wide.

CHR CLAIM: “The final report written by one of the abutters, Scott Gladstone, made no suggestion for any number of units or plan that would be acceptable. At that time, neighbors made it clear they wanted nothing built on the CHR land near their homes………”
RESPONSE: This report was not the opinion of a single individual. The report was written with input from the entire Committee as well as members of the public in an open meeting. All present Committee members voted to adopt the final report. It is important to emphasize that the Committee had representation from almost every Town board and Commission, including those centered on affordable housing, preservation, the environment, schools, and planning.
After 2 ½ years of study, the town-wide Hancock Village Planning Committee concluded
“The Committee expressed a number of concerns to CHR that needed to be overcome if it was to support plans for a significantly expanded Hancock Village. While the Committee was willing to entertain zoning changes in order to accommodate a smarter design that met the Town’s and neighborhood’s concerns, CHR has not presented any plans that satisfy those concerns. In particular, CHR has never reduced the number of units that it wishes to build. Consequently, the Committee cannot support the proposals that CHR has put forward….If CHR wishes to radically change its proposal in a way that will address these concerns, then the Committee would be happy to consider it.”
The Town-wide committee made it clear that CHR had been unresponsive to public input and had not ever put forth a reasonable proposal.

CHR CLAIM: “In the summer of 2011, CHR presented a new plan for the east side of Hancock Village.”
RESPONSE: Just weeks after the HV Planning Committee Report was issued, CHR proceeded with a plan similar to their initial proposal. This proposal remains a maximal buildout, but CHR elected to divide the original proposal into two parts for logistical reasons related to obtaining special permits. For the present submission to the Planning Department, CHR proposed only to build on the east (Russett Road) side of the property. Again it was a maximal buildout of 31 single family homes and 162 units in a single large building. Several aspects of the plan hinged on questionable interpretations of the zoning bylaws. A 6 story building was proposed for an area zoned for 35 feet height. Single family homes were tightly clustered behind the Russet Road homes. A road connecting all 31 homes was designated as a “driveway”, so that the homes could be fit onto the site with purportedly only a 7 foot setback from the existing homes behind them.
The impact of this plan on the Town will parallel those projected for the original 2009 plan, i.e. school overcrowding and budgetary losses of $1 million or more annually (in addition to the current $2 million annual loss incurred as a result of HV). At an 8/2011 meeting for direct abutters and TMM hosted by CHR, when asked how this might benefit the Town, CHR indicated that its focus was its own welfare.

CHR CLAIM: “Neighbors wanted nothing new built at Hancock Village”
RESPONSE: CHR has repeatedly tried to minimize and marginalize concerns about their proposal by blaming “the neighbors” when in fact the Town wide Hancock Village Planning Committee objected to the size, scale and negative financial impact to the Town.
CHR’s insistence that 466 units will only add 24 students to the schools and will not add to traffic has undermined their credibility. Options other than housing were rejected by CHR. In 2 ½ years of discussion, CHR did not reduce the number of units proposed by a single unit. It is CHR who has been intransigent in this process.
The neighbors have never stated that they wanted nothing new built at Hancock Village. There is another recently constructed multi-family housing development only a few blocks from Hancock Village that fits well into the surrounding neighborhood. The developer worked with the community and obtained neighborhood approval for this project. The concern has been that additional development at HV should match the scale and character of the adjoining neighborhood. NCD legislation will be crucial for directing sensible development.


CHR CLAIM: “Less than a month after CHR presented its current proposal and hours before the Warrant closed, CHR found out that two Warrant articles had been placed on the Warrant for the November 15th Town Meeting.”
RESPONSE: The Warrant Articles were submitted more than 2 ½ years after CHR first presented their proposal to add 466 units to HV, nearly doubling the density. The Warrant Articles were submitted in full accordance with the law and before the warrant deadline. Under the Warrant Article process, vetting of Warrant Articles through public meetings begins with the submission of the articles, and not before.

CHR CLAIM: “Selectman Dick Benka, and others drafted the NCD articles, with no input from the landowner or any public consultations with any Town boards or commissions.”
CHR CLAIM: “Moving forward with an article that has not been thoroughly vetted and discussed with the owners of the subject property is a bad precedent and may lead to unintended consequences…”
RESPONSE: The proper procedure was followed for drafting and submitting the Warrant Articles. The Planning Department has been evaluating the Neighborhood Conservation District mechanism for years, and in 2005 commissioned a study on NCDs. The current NCD legislation, Warrant Articles 5 and 6, were largely drafted by Selectman Richard Benka with additional input from Town planning staff (including Regulatory Planning, Economic Development and Preservation), Town Counsel’s office, and a member of the Massachusetts Historical Commission, Dennis DeWitt.
All warrant articles are thoroughly vetted after they have been submitted. All warrant articles are extensively reviewed by the Selectmen and the Advisory Committee at which time all citizens can be heard. Although not required, Warrant Articles 5 and 6 were also discussed at multiple additional meetings including the Preservation Commission, EDAB, HAB, the Planning Board and the Conservation Commission. Thus the process has been exhaustive and thorough. Many of these boards submitted comments and proposed changes to the original articles and the final submitted articles did incorporate many of those suggestions. The Advisory Committee overwhelmingly voted to approve both articles as did the Board of Selectmen.
The representatives from Chestnut Hill Realty were in attendance at every meeting and were allowed to provide input on every part of the legislation. CHR was represented at these meetings by a team composed of Joe Geller, landscape architect with Stantec (CHR’s contractor), Marc Levin, CHR Vice-President of Development, Margaret Murphy, CHR spokewoman, and Jim Shea, real estate and development lawyer and partner at the law office of Choate, Hall & Stewart.

CHR CLAIM: “The participation/approval of the landowners is an important tenet in most of the other NCD regulations in other communities…NCDs in other communities are a result of a long study process and participation of affected landowners”
RESPONSE: NCDs, like local historic districts, do not require landowner participation. Like local historic districts, by convention one could look for significant landowner participation in most cases. However, not mandating this in the law provides the flexibility to apply the mechanisms to situations such as Hancock Village, where a massive expansion on a single owner large property will negatively impact an entire Town. A similar situation arose at St. Aiden’s and could also occur in the future.
CHR asserts that not mandating landowner participation is unusual, but this is not the case.
In Massachusetts, two of the municipalities with the longest histories of NCDs, Boston and Cambridge, do not require landowner approval, nor do NCD and landmark designation laws in such disparate communities throughout the country as New York City, Boise, Idaho, Raleigh, North Carolina, and Napa, California. And whereas other municipalities such as New York City require only a majority approval by the Town or City’s Council, Brookline’s proposed law requires approval by the majority of the 240 person Town Meeting, a much higher bar.
Requiring landowner approval for properties having only one landowner would effectively eviscerate such preservation tools in those circumstances, just as requiring landowner consent would render zoning laws ineffective. Moreover, the Supreme Court has held that regulations used to preserve properties, despite landowner objections, are appropriate preservation tools, so long as the owner is able to obtain a reasonable rate of return from their property. This decision addressed a New York law, but it is applicable to all such laws nationwide.
Hancock Village, held by a single landowner, contains over 2% of the Town’s population. In the absence of NCD guidelines, the landowner’s actions could have a large negative impact on the site’s 1500+ residents, the surrounding neighborhood, and the Town as a whole. Indeed, CHR’s actions have shown that the Town’s welfare is not its priority. Thus, the Town needs the NCD mechanism to protect itself in this case and in similar cases. Hancock Village has been studied for years, both as a candidate for historic preservation through the Preservation Commission, and as a potential site of development through the Hancock Village Planning Committee. CHR participated actively in the latter process, which lasted for over 2 ½ years.

CHR CLAIM: “The overriding purpose of Brookline’s proposed NCD articles is to stop all development at Hancock Village.”
RESPONSE: Nearly every precinct in Brookline is experiencing pressure and adverse effects from ill-advised development. It is clear that Brookline needs additional tools to guide sensible development. Thus Warrant Article 5, which establishes the NCD mechanism, will benefit all of Brookline by providing additional planning tools.
CHR’s proposals to massively expand Hancock Village acted as a catalyst. While NCDs have been thought about for years, the immediate threat of massive expansion of Hancock Village and consequent pressures on the Town’s budget and schools has spurred the Planning Department to bring forward this much needed legislation. However, the benefits to Brookline will extend beyond application to Hancock Village.

CHR CLAIM: “Neighbors to the property complain that there are lots of children at Hancock Village and any expansion would add more Hancock Village was built as family housing and naturally there are children living there.”
RESPONSE: Hancock Village is an important, vital part of the South Brookline neighborhood. The children and families are essential and highly valued, as they add greatly to the diversity and richness of the community, particularly within the Baker school. However, a massive expansion of Hancock Village will overload municipal services, add hundreds if not thousands of car trips on a road adjacent to an elementary school, and disrupt traditional school buffer zones. Ripple effects of moving buffer zones, school overcrowding, and budgetary challenges will affect all of Brookline.

CHR CLAIM: “Chestnut Hill Realty is being singled out by a group of neighbors who literally do not want anything built in their backyards. They have enjoyed the benefits of open space they do not own or care for.”
RESPONSE: Although CHR tries to lay blame with a “group of neighbors”, the town-wide Hancock Village Planning Committee found CHR unresponsive to the Town’s concerns. Meanwhile, Hancock Village currently costs taxpayers $2 million more annually in expenses greater than revenues. Further expansion of Hancock Village would increase the burden on taxpayers.

CHR CLAIM: “Articles 5 and 6 would override the jurisdiction of the Planning Board and Zoning Board of Appeals as well as the Preservation Commission. It also creates a new “super board”, mostly appointed by Selectmen, to govern any changes at Hancock Village and any other parcel of land placed in a NCD. It also creates a new staff position.”
RESPONSE: NCDs do not replace or override zoning. They add another tool to encourage smart development. The Preservation Commission has recommended favorable action on both NCD warrant articles. The Planning Board agreed that their jurisdiction would not be overridden. Each NCD would be governed by its own commission, not by a new “super board”. The staffing of the Planning Department was already under review by an outside consultant prior to the NCD Warrant Articles. The expense of an additional staff position pales in comparison to huge losses to the Town caused by ill advised development.

CHR CLAIM: “Chestnut Hill Realty strongly objects to Articles 5 and 6 because they were poorly thought out with no study or community input before they were put on the Warrant. CHR had no input into the articles and they have no participation in the NCD Commission that could govern their property.”
RESPONSE: CHR strongly objects to these Warrant Articles because the Warrant Articles do not favor their interests. Regarding lack of CHR participation in an NCD Commission that could govern their property, as pointed out in the Advisory Committee discussion. This arrangement would make no sense because CHR would have a conflict of interest. More broadly, the composition of NCD Commissions was designed so that they would be able to act consistently and objectively.

CHR CLAIM: “It is unfair and undemocratic. CHR believes that the processes in place in Brookline can be used effectively and in a cooperative way to provide a thoughtful project for the Town… CHR remains willing to work with the Town to achieve that objective but does not feel that these articles support that effort. All other landowners use the existing Town’s processes to modify their property.”
RESPONSE: Although CHR described Warrant Articles 5 and 6 as undemocratic, the Town Meeting process is democracy in action. When citizens perceive a need they can seek to pass new legislation through Town Meeting. Warrant Articles 5 and 6 seek to enhance the current mechanisms for guiding sensible development throughout Brookline. NCDs provide a framework that will enable landowners to have guidelines in place that ensure their development proposals will be reasonable for each neighborhood.
The past 2 ½ years of experience with CHR over the HV process has shown that it is not interested in cooperative action. Every proposal has been a maximum buildout, 7-9 when the consistent concern has been about fiscal impacts, school impacts, and excessive density out of proportion to the adjacent neighborhoods. Many Town resources have been expended in evaluating CHR’s proposals. If an NCD mechanism had been in place, much of the efforts expended over the past several years on CHR’s proposals could have been reduced and streamlined.

CHR CLAIM: “There could be many unintended consequences
RESPONSE: There are substantial known consequences of failing to passing NCDs: unwise development and its associated financial, educational, and historic costs.
The known benefits of passing NCDs are summarized at the beginning of this document under “Why support Warrant Articles 5 and 6”.

CHR CLAIM: “HV should not be treated differently than any other parcel of land in Brookline.”
RESPONSE: The NCD process, if passed, will apply to the whole of Brookline. HV is the perfect location for the first NCD as a result of its size and historic significance making it a suitable first NCD. Decisions made by most landowners do not have negative impacts throughout the Town, but decisions made at Hancock Village do have this potential. Therefore, while imposing restrictions on a property owner should not be done lightly, in this case the interests of the one are outweighed by the interests of the many.