2013-present: 40B #1 -- Residences of South Brookline


June 2013: Chestnut Hill Realty filed a proposal with MassDevelopment to develop 192 units under MA Chapter 40B. A summary is available here.

Key facts:

  • 192 U, 404 BR. This includes 28 4 BR, and 28 3 BR. Only 39 affordable units.
  • A large apartment building (equivalent in sq ft to 98 single family homes) sited on a 2 story tall puddingstone outcropping.
  • 12 “infill” buildings and roads covering the greenbelt. The average size of each infill building is more than 4 single family homes. They are located only 20’ from the property line.
  • Extensive re-grading that will result in tall retaining walls at the edge of the property and certain water issues for neighbors.

This proposal did not differ in substance from the 2012 40B proposal, which MassDevelopment was prepared to deny:

“...MassDevelopment has determined that the conceptual site plan is not generally appropriate for the site due to the Project’s complete elimination of the existing greenbelt buffer between the current Hancock Village residences and abutting single-family neighborhood homes; the Project’s inadequate setbacks; and the massing of the Project’s proposed five-story which is generally inappropriate for the site and not well-mitigated by topography or other means.”

In particular, this proposal shared the 2012 proposal’s obliteration of the greenbelt buffer, replacing it with buildings, roads, and parking. The five story building is now four stories tall, but continues to sit on a high rock outcropping and will tower above neighboring buildings. The number of units and size has been trimmed by ~25%, but the scale and density of the proposal remains excessive. The setbacks continue to be inadequate, with some paved areas even closer to property lines than before, so that massive buildings come as close as 20 feet to the property lines.

Brookline and the Hancock Village Neighborhood Conservation District Commission both viewed the proposal for what it was, a re-proposal of a deficient conceptual site plan. They, as well as PreserveBrookline and the South Brookline Neighborhood Association, sent vigorous and thorough letters to MassDevelopment that delineated the negative effect this unwise development would have on the Town and the neighborhood.

Oct 8 2013: Surprisingly, despite no substantive changes to the flawed conceptual site plan, MassDevelopment found that CHR's proposal was eligible for 40B and could proceed to the next stage. Furthermore, it did not put any formal conditions on the approval. There are various aspects of this approval that raise some serious questions in our minds:

  1. How did CHR know to withdraw its application last year, RIGHT BEFORE MassDev was prepared to issue them a denial letter?
  2. Why did their new proposal, which failed to address any of the MANY AND SERIOUS substantive issues raised in the denial letter, get approved so quickly this time, with no formal conditions on the approval?
  3. The law firm of Goulston & Storrs specializes in representing large 40B developers. A director of Goulston & Storrs also sits of the Board of Directors of Mass Development. CHR's previous proposal was denied, and then CHR hired Goulston & Storrs for its new proposal. Is it a coincidence that this new proposal is suddenly and quickly approved without explanation? Why isn't this a conflict of interest?
  4. New 40B guidelines were adopted to make the decision process more transparent to the public. Yet this proposal was quickly approved and a180-degree reversal of its previous decision. This approval was made without any explanation of how the guidelines were applied or how a different decision could be reached on a substantially similar proposal. Furthermore, there was no mention at all of this proposal in MassDevelopment's meeting agendas to date.
  5. If Mass Development is required to follow its own 40B guidelines and Design Review criteria, why did their approval letter not address these very concerns, especially when this new proposal failed to address any of the substantive issues raised in the previous denial letter.

Nov 19 2013: Brookline filed suit against Mass Development in Superior Court for its arbitrary actions in issuing its project eligibility letter. Several neighbors, including many participating in PreserveBrookline, were co-plaintiffs in the lawsuit. The issue of the 1946 contract preventing CHR from having adequate site control to propose the project. A press release on the lawsuit issued by Brookline is here. The judge in the case denied a motion for an injunction on the proposed development. Mass Development filed a motion to dismiss on 12/17/2013. In Sept 2014, the Judge Brady issued a flawed one page decision granting the motion to dismiss. The case was unsuccessfully appealed to the Court of Appeals and then to Superior Court.

Dec 2013: The comprehensive permit application for the 40B development (45 MB) was submitted to Brookline. The Zoning Board of Appeals held several contentious meetings until January 2015. The ZBA decision approved a project that was very much like the original:

  • 161 Units
  • 3-4 story building containing 109 units
  • 11 2.5-3 story bldgs
  • 57 1BR, 59 2BR, 22 3BR, 23 4BR = 333 BR
  • 33 affordable units (20%)
  • 99 garage and 193 surface parking = 292 (1.8 parking/unit)

Legal Action
The Town of Brookline and several neighbors sued CHR and MassDevelopment on the following grounds:

  1. Development of the property was restricted by a public contract made between the original developer and the Town in 1946.
  2. The Project Eligibility Letter was not determined in a manner that was consistent with MassDevelopment/40B rules
  3. MassDevelopment is chartered to develop blighted properties and therefore has no mandate to sponsor development of this property
  4. The ZBA process was flawed.

Unfortunately point #1 was denied based on reasoning that does not make sense: that the agreement was not made as part of the public action to rezone the property. Points #2-4 are under consideration in Land Court at this time.