Builder Wins Appeal On 40B Development

BOURNE- A possible new, downsized concept plan for the affordable housing development proposed on the steep Sandwich Road parcel next to the entrance to Upper Cape Cod Regional Technical School was discussed with the zoning board of appeals Wednesday, as that board was faced with questions as to the limits of its authority.
After an appeal by Thomas C. Pappas, who wants to build the Chapter 40B development on that site, the state Department of Housing and Community Development has reversed a previous decision giving the town the ability to hold that project to broader standards.
This year, the town approved the required number of affordable housing units it needed to fall under the state law’s so-called safe harbor provisions, Town Planner Coreen V. Moore said. Because it met its target goal of affordable units, the DHCD allowed the town far more leeway in reviewing Chapter 40B proposals filed during a one-year “certification period.” Mr. Pappas’ project fell within that period.
On appeal of the decision giving Bourne those broader powers, however, Mr. Pappas’ attorney successfully argued for a change in the date on which safe harbor protections should begin, relying on a new state regulation says that the “safe harbor” period begins on the date on which the town met its numerical target for the year in question.
According to a correction sent by DHCD, the revised period runs from April 28, 2008, when the CanalSide Commons affordable housing units were approved, to April 27, 2009.
That period exempts Mr. Pappas’ project from the expanded authority the town had been given.
This week, the zoning board voted unanimously to appeal, in turn, asking that the state’s full housing appeals committee review the issue and reinstate the first approval.
Since it may take some time for DHCD to rule on the zoning board’s appeal, both the board and the applicant’s attorney Paul J. Attea discussed whether they should continue discussions as to what the project should be. They decided they needed to consider the legal implication of the matter, but set September 24 as the date on which review would continue, if both sides agree to the terms under which discussion could continue.
Discussion of the scope of the zoning board’s review of the project aside, board members heard Mr. Attea and project engineer Raul Lizardi-Rivera of Holmes & McGrath of Falmouth present revised concept plans for the project.
Downsized plans had been requested by the board at the last meeting at which the proposal was reviewed, given board members’ concerns over safety and the project’s density.
The new concept plans are not an amendment to the original plans, Mr. Attea said, and were being presented only to prompt discussion as to what would be more acceptable to the board, not as a firm proposal.
The new concept plans depicted a 20-unit development, down from 32. Rather than many multi-story units, the plan calls for four buildings containing five one-story units each.
The steep roadway called for in the current plans would be changed if the concept plan were to replace it, making the slope more gradual as it approached Sandwich Road, a design change made to address concerns about driving on the slope during the winter months.
That design would also make it easier for the project to connect to any road built for the CanalSide Commons project, and thus allow residents of the proposed housing to enter and exit Sandwich Road at the traffic signal planned for CanalSide.
The plans also showed a wider entrance at the front of the property and a larger turning radius on the cul-de-sac at the top of the property.
With fewer units, the project would have more open space. That would allow the units to have a 25-foot back yard behind planned two-car garages and a retaining wall at the boundary to Upper Cape Tech property.
The retaining walls would be from two feet to nine feet to 24 feet on the other, or Schooner Pass, side of the property, the project’s civil engineer told board members. The highest retaining walls on the site would be 26 feet, under the concept being discussed.
The project’s steepest slope would be a gradient of 13 percent. Asked whether that met with town bylaws, Ms. Moore said town regulations allowed for no more than 12 percent.
Board members agreed that the new concept was far better than the existing plan.
Chairman Lee M. Berger said he would still like to see between eight to 16 units on the property, as opposed to the downsized 20.
Board member Judith A. Riordan said she still had safety concerns.
Board member and architect John W. Priestley Jr. commented that the project could be better designed were the applicant to allow the land at the front of the site, now being used for a six-bay garage, to be incorporated into a re-designed project.
Abutters, who heard that the new concept showed utility lines running through a lot in the Port of Call subdivision owned by Mr. Pappas, had similar concerns. They appeared to agree, however, that their objections were to the use of the Port of Call lot, and any possible use of that subdivision’s roads, not to the new concept itself.
Mr. Berger explained that the legality of using the Port of Call lot was not before the zoning board.
One neighbors of the project, Sean Scully of Bosuns Lane, asked about the previously discussed idea of asking the Cape Cod Commission to review the project in lieu of the town.
Peter J. Meier, a member of the Bourne Planning Board, told meeting attendees that the commission’s counsel was reviewing the idea, adding that no regional body has ever taken on the review of a Chapter 40B affordable housing development. The idea, he said, is unknown territory. No one even knew if such review would have to be completed in what is left of the 180 days the town has, under law, to complete review of the proposal.
Mr. Meier said many town bodies, including the planning board, selectmen, and the planning department, had the right under certain circumstances to request the aid of the Commission. He said the planning board, however, had no plans to make such a request, which it saw as the purview of the zoning board.
Mr. Berger said he currently saw no benefit in giving up the town’s right to review the application.
Meeting attendees were told to watch the town’s meeting calendar, both online and posted at Town Hall, as to whether the board would continue its review of the project on September 24. That meeting is now scheduled to be held at the Bourne Veterans Memorial Community Center, rather than the usual Town Hall location.
Attendees were also told they would need to watch for an announcement of a discussion of the Port of Call implications of the project that would be coming before the planning board, probably in November.
(See allied story.)