JONATHAN FLOOD
Flexibility important

An affordable housing group is seeking an opinion from the Massachusetts Commission Against Discrimination about whether Belmont officials and a developer violated fair housing laws by attempting to “childproof” a proposed rental complex.

The case has drawn the attention of local leaders, housing advocates and builders who say it could have wide-ranging ramifications on future projects and negotiations between developers and communities.

The controversy surrounds a proposed 299-unit rental complex that received a comprehensive permit under the state’s Chapter 40B law, which enables developers to override local zoning in communities where less than 10 percent of the housing is deemed affordable. The Zoning Board of Appeals issued the permit to O’Neill Properties to build the complex – known as The Residences at Acorn Park – on a 15.6-acre site, close to the Belmont-Cambridge line and adjacent to the state-owned Alewife reservation last month.

During the permitting process, the Belmont Housing Trust, a nonprofit group that promotes and develops affordable housing, asked for more three-bedroom units to be included in the development, arguing there is a need for more affordable family housing in the community.

Roger Colton, an attorney who is chairman of the Belmont Housing Trust, contends that the developer caved to pressure from local officials who indicated that they don’t want families and children moving into the community, and then cut the number of three-bedroom units in the proposed project. Colton said discriminating against families clearly violates state and federal law.

“There is a need for family housing in Belmont. Unfortunately, despite that need, there is a strong political pressure to not have families move into the town,” said Colton. “The reason for that is that people believe that families bring kids, and kids go into the school system, and – as with every local community in the commonwealth – the town is facing fiscal constraints and they simply don’t want to have more kids.”

But Belmont’s planning and economic development manager and an O’Neill Properties official dispute that the mix of units within the project was changed solely because of pressure from town leaders.

Stephen Corridan, a partner with Pennsylvania-based O’Neill Properties, said the unit composition was altered because of a combination of factors, including site location, construction costs, market reports and discussions with local leaders.

“I would not say there is one reason why the units changed. All the units get kind of tweaked as projects go along to reflect the realities of the marketplace and the realities of the construction and site,” he said. “We talked about it with the town and various stakeholders. What we’re trying to build is something that is healthy for the community and that is viable long-term so that the affordable units will always be there.”

Corridan called the housing trust’s accusations “ridiculous,” saying that the complex will provide sorely needed affordable housing for Belmont. He said he met with several groups to address their concerns.

“There are so many stakeholders with priorities. It’s hard to satisfy everyone. The No. 1 goal is to bring affordable housing to the community,” he said.

O’Neill Properties submitted a comprehensive permit application in December 2005 seeking to build 299 apartments, with 60 of the units being affordable to those earning no more than 50 percent of the area median income. According to Colton, the developer’s original proposal for The Residences at Acorn Park included 24 three-bedroom units and no studio apartments.

However, during the hearing process, O’Neill Properties added 20 studio apartments into the mix and cut the number of three-bedroom units to 16.

Belmont Planning and Economic Development Manager Jay Szklut said the developer told the Zoning Board of Appeals that he miscounted the number of three-bedroom units in the architectural drawings and that the plans actually included studio apartments and fewer three-bedroom units.

“We haven’t seen the actual architectural drawings. They don’t have to provide them,” said Szklut, explaining that the developer provided preliminary design plans.

But Colton argues that throughout the hearing process, various selectmen stated their desire “to keep kids out of the town.”

An O’Neill Properties spokesman said on at least two occasions during the hearing process that the additional number of studio units was “in response to local pressure to minimize the number of families with children that would place students in the Belmont school system and purportedly impose additional fiscal costs on the town,” according to the petition for declaratory ruling that the housing trust filed with the Massachusetts Commission Against Discrimination [MCAD] at the end of last month.

Colton said the trust is not arguing that the zoning officials directly pressured the developer to change the unit mix as a condition for receiving the permit.

“The ZBA is really in a bind because they’re told that they have to accept a development as it’s presented. But the developer really responds to the local political situation,” he said.

‘Very Unusual’
The housing trust’s efforts are unusual because the trust has not technically filed a complaint, according to several observers.

Eugenia Guastaferri, an MCAD hearing officer, explained that the trust is requesting an advisory opinion from the commission.

“We get very, very few – almost no – requests for an advisory opinion,” she said. Typically, someone files a complaint and the commission investigates and issues a finding, she noted.

If the agency finds sufficient evidence, the commission moves forward with an administrative hearing. But if there is insufficient evidence, the commission doesn’t move forward and the complaint is essentially dismissed.

“[The trust’s request] is very unusual and our legal department is looking at it and trying to determine what the commissioners’ response will be,” she said.

Explaining the trust’s decision to file a petition for declaratory ruling, Colton said, “The distinction we made is that in a complaint we would have actively charged the town with wrongdoing. In a petition for declaratory ruling, what we’re doing is we’re making a request of MCAD,” to find whether the facts and actions of the town and developer constitute wrongdoing.

Colton added that MCAD still might decide to treat the request as a complaint. If the MCAD does find evidence of wrongdoing, he said, O’Neill Properties would have to redesign the development to include more three-bedroom apartments.

“I fully expect the MCAD to say, ‘No, no, no – you just can’t do it. You have to pay attention to fair housing laws. Go back and design your proposal so it doesn’t discriminate,'” he said.

Groups like the Fair Housing Center of Greater Boston are watching to see how the MCAD responds.

“We’re pleased to see local residents initiating action that says they want to live in a diverse community that includes families with children. From our perspective, what we’re seeing is local residents using state and federal fair housing law to hold their town to their legal and civic responsibilities,” said Ginny Hamilton, executive director of the Fair Housing Center of Greater Boston. “We hear every day in the media Â… about the need for housing for the success of the region’s economy, and especially starter homes for families with children.”

Housing advocates say communities have made it difficult to build housing that appeals to families.

“Towns in general have tried to minimize the perceived impact on their school systems by reducing the number of family-sized units to the greatest degree they can,” said David Wluka, a Sharon Realtor and past president of the Massachusetts Association of Realtors.

Aaron Gornstein, executive director of the Citizens’ Housing and Planning Association, said in an e-mail that his group has found that it is “common for communities to severely restrict or prohibit three-bedroom homes from proposed housing developments – whether they are being built under Chapter 40B or not.”

He added, “Communities also favor ‘age-restricted’ housing over family housing. This widespread practice is done with the express intent to limit the number of families with school-age children who may move into the development when it is built. We believe it is important for the appropriate state agencies to examine this practice for its potentially discriminatory impact.”

Jonathan Flood, vice president of acquisitions and business development for Braintree-based John M. Corcoran & Co. and a co-chairman of the Home Builders Association of Massachusetts’ Chapter 40B Subcommittee, acknowledged that children and the costs of educating them have become “a hot-button issue” in the homebuilding and permitting process.

But Flood said it’s not unusual for developers to change unit mixes and project design as a result of market conditions as well as negotiations and discussions with a town.

“Generally speaking, the unit mix is largely market-driven, and from our experience there is much stronger demand for one- and two-bedroom rental units,” said Flood.

Flood also expressed concern about how the controversy could affect the building industry.

“I hope it’s not a sign of things to come, both as a developer and as a member of the homebuilders’ association. I think it’s important for any housing program to allow flexibility so that as Â…variables shift,” builders and developers can react to the market, he said.

Szklut, Belmont’s planning manager, said the case could have broader ramifications.

“It seems to me it could apply to any proposal that is made in any other town where the towns are saying we are cautious about allowing larger units. Every town is basically saying we can’t afford kids,” Szklut said.

“Now someone is coming out and saying ‘you’re discriminating against kids,'” he added. “I just think it will be very interesting to see how the MCAD treats this and whether they’re going to consider it all.”