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350 Bradford Street  Development

 

HUGGINS AND WITTEN, LLC

156 Duck Hill Road

Duxbury, Massachusetts 02332 and

132 Adams Street, Suite 7

Newton, Massachusetts 02458

781-934-0084

781-934-2666 (facsimile)

jon@hugginsandwitten.com

barbara@hugginsandwitten.com

April 21, 2015

Thomas Donegan, Chairman

Board of Selectmen

Town of Provincetown

260 Commercial Street

Provincetown, MA 02657

RE: Application of BPJC, LLC, 350 Bradford Street, Provincetown, MA for Project

Eligibility Approval from MassHousing

Dear Chairman Donegan:

Please accept this letter on behalf of Cydney Berry, Elizabeth Read and James Turner,

Provincetown, Massachusetts in reference to the application for project eligibility approval

submitted to MassHousing by the BPJC, LLC (the “Applicant”) for a 24 dwelling unit

development (“proposed development”) off of Bradford Street in Provincetown, Massachusetts.

For the reasons set forth in detail below, we urge the Board of Selectmen to recommend to

MassHousing the denial of the Applicant’s request for project eligibility approval. We make this

recommendation based upon our review of the project eligibility application, our personal

knowledge of the locus and the immediate neighborhood, and the legal, environmental and

infrastructural constraints of both. As discussed in detail below, there is no rational support for

issuing project eligibility approval for this project at this location and we respectfully suggest

that the Board of Selectmen inform MassHousing that the above noted application must be

denied.

I. The Town of Provincetown Appears to Have Met the “1.5%” Threshold of Chapter 40B

and is therefore “Consistent with Local Needs”

As discussed below, there appears little doubt that the Town of Provincetown has met one of

the thresholds defining “consistent with local needs” found within G.L. c.40B, s.20-23. We

urge the Board of Selectmen to inform MassHousing of this fact and, in so doing, request the

formal calculation of the Town’s status by staff and the Cape Cod Commission. The Town

should be congratulated on achieving this important milestone and should confirm this status

as soon as possible.

Page 2 of 10

We have provided below the formula for completing this important calculation; a calculation

that our clients are willing to perform on behalf of the Town should the Town not complete

this analysis on its own.

While our clients are fully aware that MassHousing does not deem status as “consistent with

local needs” as relevant to its issuance of a project eligibility letter, we think it only fair that

the Board of Selectmen inform MassHousing, such that MassHousing can inform the

applicant, that the applicant will have no appellate rights should the Provincetown Board of

Appeals deny or condition an application submitted pursuant to G.L. c.40B, s.20-23.

G.L. c. 40B, s. 20 provides in relevant part:

“Requirements or regulations shall be consistent with local needs when imposed by a

board of zoning appeals after comprehensive hearing in a city or town where (1) low or moderate

income housing exists which is in excess of ten per cent of the housing units reported in the latest

federal decennial census of the city or town or on sites comprising one and one half per cent or

more of the total land area zoned for residential, commercial or industrial use …provided,

however, that land area owned by the United States, the commonwealth or any political

subdivision thereof, or any public authority shall be excluded from the total land area referred to

above when making such determination of consistency with local needs. (emphasis supplied).

Step 1: Determine the Denominator

Under both G.L. c. 40B, s. 20 and 760 CMR 56.03, the "numerator" (the 1.5% target) is land area

containing SHI-eligible housing; the "denominator" (100%) is "the total land area zoned for

residential, commercial or industrial use," subject to certain adjustments under 760 CMR

56.03(3)(b). The starting point for the denominator is
not the total area of Provincetown, nor is itthe total land area of the Provincetown. Rather, the starting point is a subset of the Town’s total

area, containing exclusively land zoned to allow the enumerated uses. See G.L. c. 40B, s. 20 and

760 CMR 56.03(3)(b)(1).

The Legislature's clear intent in G.L. c. 40B, s. 20 was that the area dedicated to affordable

housing (the 1.5%) would be measured not against the town's total area, but rather against asubset of that area:

developable land. The denominator in the 1.5% calculation is thus

unambiguously defined as the "total land area zoned for residential, commercial or industrial

use." G.L. 40B and 760 CMR 56.03(3)(b)(1).

The "total land area zoned for residential, commercial or industrial use" in Provincetown is

derived by subtracting all land
not zoned for residential, commercial or industrial use from the

total land area of the Town.

Land
not zoned for residential, commercial, or industrial use in Provincetown includes all land

held by the National Park Service, (equivalent to over 70% of the Town’s total land area). Land

Page 3 of 10

not zoned for residential, commercial, or industrial also includes land that falls within the

Town’s “Seashore” and “Municipal” zoning districts.

The total land
not zoned for residential, commercial or industrial use is determined by adding

the land owned by the National Park Service and land zoned as “Seashore” and “Municipal”.

Subtracting the total
land not zoned for residential, commercial or industrial use from the

Town's total land area provides the "total land area zoned for residential, commercial or

industrial use".

Step 2: Adjusting the denominator pursuant to 760 CMR 56.03(3)

This figure - the statutory and regulatory "denominator" - is subject to several adjustments

specified in both the statute and 760 CMR 56.03(3)(b). First, certain categories are excluded

from the denominator. That is, the areas of such parcels are
subtracted from the denominator -

which, as discussed above, is the "total land area zoned for residential, commercial, or industrial

use”. 760 CMR 56.03(3)(b)(3) provides for the exclusion of "land owned by the United States,

the Commonwealth or any other political division thereof, the Department of Conservation and

Recreation or any state public authority."

Land conforming to this exclusion in Provincetown includes public roads, land owned by the

Town of Provincetown (including no fewer than 81 parcels) and extensive lands owned by the

Commonwealth of Massachusetts Division of Fisheries and Wildlife (no fewer than 16 parcels).

The total land subject to the exclusion of 760 CMR 56.03(3)(b)(3), computed by adding the

above categories, is then subtracted from the denominator identified above (the "total land area

zoned for residential, commercial, or industrial use" ) yielding an adjusted denominator.

The 1.5% "target" - that is, the acreage that must be equaled or exceeded for the Town to be

deemed "consistent with local needs" pursuant to the 1.5% statutory minimum - is next

determined by multiplying the adjusted denominator established above, by 1.5%.

Step 3: Calculate the numerator

Having determined the denominator, and from it, the 1.5% target, the final step in determining

whether the Town has achieved this statutory minimum is a calculation of the numerator: the

area of "sites" containing SHI-eligible housing units. See G.L. c. 40B, s. 20. See also 760 CMR

56.03(3)(b) ("calculating whether SHI Eligible Housing exists in the city or town on

sites comprising more than 1-1/2% of the total land area zoned for residential, commercial, or

industrial use, pursuant to M.G.L. c. 40B, § 20").1

1 To the extent 760 CMR 56.03(3)(b) requires "more than 1-1/2% of the total land area zoned for residential, commercial, or industrial use" for achievement of the statutory minimum, it is

Page 4 of 10

Land on which SHI Housing exists has been provided to the Town of Provincetown by the

Department of Housing and Community Development and is identified on the Town’s

“Subsidized Housing Inventory”.2

If the total area on which SHI-eligible housing exists in Provincetown exceeds 1.5% of the

Town's "total land area zoned for residential, commercial, or industrial use”, the Town is

“consistent with local needs”.

Determining this status is relevant to the current matter, but also Provincetown’s land use and

development future. Given the obvious facts, we believe that the Town has achieved this

important milestone. Now, we respectfully request that the Board of Selectmen confirm the

same and inform MassHousing, as we believe the facts make clear, that the Town of

Provincetown is “consistent with local needs” pursuant to G.L. c.40B, s.20-23 and 760 CMR

56.03(3)(b).

II. The Proposed Project is Located within a Federally Designated Flood Zone and Relies On

Federal Financing

The applicant has stated that financing for the proposed project will be through the “New

England Fund”. (See application, page 4). The “New England Fund” is a federal subsidy. See

Town of Middleborough v. Housing Appeals Committee,
449 Mass. 514 (2007). This ruling –

that the New England Fund is a federal subsidy – was reiterated in Board of Appeals of

Gloucester v. Housing Appeals Committee, Memorandum of Decision and Order, December 18,

2009, Essex Superior Court at n. 13 (affirmed, 79 Mass.App.Ct. 1111 (April 14, 2011).

Federal Executive Order 11988 (May 24, 1977) requires, in relevant part, that “
when funding

actions, Federal agencies are required to avoid to the extent possible the long and short-term adverse

impacts associated with the occupancy and modification of floodplains and to avoid direct and

indirect support of floodplain development wherever there is a practicable alternative.”

Accordingly, MassHousing is required by federal law to ensure that the proposed project—one

that will be receiving federal financing—avoids long and short-term impacts associated with

development within a designated floodplain. We ask the Board of Selectmen to inform

MassHousing of the project’s location within a designated flood zone and remind MassHousing

of the agency’s responsibilities pursuant to federal law.

2 There are several group homes within the Town of Provincetown that are included on theTown's SHI.2 Although these group homes are listed by DHCD on the Town's SHI, the location

and land area associated with these group homes are unknown to the Town. This is because,

despite the fact that DHCD is charged with maintaining the SHI, that agency does not possess

records of the location of these units. The Department of Developmental Services, the agency

overseeing these units, has refused to provide information regarding the location of the group

homes.

Page 5 of 10

III. MEPA and Cape Cod Commission Jurisdiction

A. MEPA: The proposed project is subject to MEPA review pursuant to 310 CMR 11.03(3)

due to the proposed project’s destruction of a defined coastal bank. MassHousing should

be made aware of the consequences of removing this coastal bank, including, but not

limited to, the flooding to abutting properties that will result if the bank is disturbed.

B. Cape Cod Commission: The proposed project is subject to Cape Cod Commission

jurisdiction and review as a development of regional impact (“DRI”). See Cape Cod

Commission Ordinance 14-03, Section 2(d) and Section 3(e)(1).
3 MassHousing should

be made aware of the Commission’s regional regulatory authority and the implications of

the same to the proposed project.

IV. The Town of Provincetown is a Designated Environmental Justice Community

The Commonwealth’s Executive Office of Energy and Environmental Affairs has identified

Provincetown as an “environmental justice” population. As a state agency subject to the

Commonwealth’s Environmental Justice Policy (see Executive Order 552, November 25, 2014)

and the Executive Office’s own policies governing environmental justice, MassHousing is

precluded from issuing project eligibility approval for a project that violates these established

laws and polices. Most notably, in this case, as Executive Order 552 governs MassHousing’s

“grant of financial resources in the form of grants, loans or other forms of economic assistance”

the agency is required to address the obvious implications of introducing 18 market rate dwelling

units that are projected to sell for an average price of $714,000
4 into a community where 25% of

households earn less than 65% of the Massachusetts median income.

The applicant has cynically identified within the “Sustainable Development Criteria Scorecard”

contained within its application (see application, page 26) that the project “promotes diversity

and social equity and improves the neighborhood” and that “The project will provide six

affordable units in a [sic] upper income area which will promote social equity and social

diversity”. In fact, the “six affordable units” are identified to have an average sales price of

$158,000
5, a sales price, even if it were to be believed, that far exceeds the monthly payment

capabilities of households earning less than 65% of the Massachusetts median income.63

There is no legal support for the oft-repeated suggestion that the Cape Cod Commission Act

does not apply to projects filed pursuant to G.L. c.40B, s.20-23.

4 See application “Financial Information”, page 14.

5 See application “Financial Information”, page 14.

6 It is important to note that the stated average sales price of $158,000 is a fiction, as relevant

regulations permit the sales price of the “affordable” dwelling units to be significantly greater.

Page 6 of 10

Accordingly, we ask the Board of Selectmen to request MassHousing to deny the application for

project eligibility as inconsistent with state (and federal) polices governing environmental justice

communities and the simple fact that the proposed “affordable dwelling units” are not

“affordable” to the very population that gave rise to Provincetown’s designation as an

environmental justice community.

V. The application to MassHousing does not meet even MassHousing’s low threshold for

approval pursuant to 760 CMR 56.04 and is inaccurate.

A. Site Control: The application fails to provide sufficient evidence that the “applicant

controls the site”. See, 760 CMR 56.04(1)(c) and 760 CMR 56.04(4)(g). The purchase

and sales agreement, submitted with the application to MassHousing on or about

February 26, 2015, extended the time for performance pursuant to the agreement to

“11:00 o’clock AM on April 2, 2015”. We are not aware of a further extension of the

time for performance and, presuming that none existed as of April 1, 2015, it must be

presumed that the agreement has lapsed. Without a binding purchase and sales

agreement or other offer to purchase—and we know of none—the applicant lacks site

control and MassHousing cannot issue project eligibility approval. We respectfully

suggest that the Board of Selectmen urge MassHousing’s denial of the project eligibility

application for this reason alone. See, 760 CMR 56.04(1)(c) and 760 CMR 56.04(4)(g).

B. Planning Principles: The application fails to comport with basic common sense and land

planning principles. The proposal of a housing project with a density of 26.67 units per

acre violates even MassHousing’s historically unreasonable density “guidelines” of 12

units per acre. There is simply no rational basis for proposing, let alone approving, such

a grossly inconsistent density and use within this established and historic neighborhood.

Even the Housing Appeals Committee, no shrinking violet when it comes to overruling

local zoning, has repeatedly supported legitimate land use planning efforts to preserve

and protect existing neighborhoods. (See for example, 28 Clay Street v. Middleborough

Board of Appeals, No. 08-06, Mass. Housing Appeals Committee, September 28, 2009).

C. Open Space: The proposed project provides no functional open space. The “open space”

identified on the site plans consists of a remnant—a left over piece of land, much like a

scrap of carpet—following the placement of an oversized and out of scale forty-five (45)

foot tall monolith surrounded by a parking area, drainage structures and roadways. The

lack of functional open space violates one of the core “planning principles” of the statute

and regulations, that is, providing useful and useable open space to the project’s

residents.

D. Inadequate Site Design: Even a first-year architecture or planning student knows to

avoid the “heat island effect” of surrounding residential dwellings with impervious

Neither MassHousing nor the Board of Appeals will be able to ensure that the number claimed

on the developer’s initial proforma—$158,000—will be honored.

Page 7 of 10

surfaces. Yet the proposal before MassHousing does just that. In doing so —cramming

24 dwelling units on a 39,189 square foot lot—the proposal violates MassHousing’s

“Sustainable Development Principles” 4 (Protect Land and Ecosystems), 5 (Use Natural

Resources Wisely) and 9 (Promote Clean Energy). In addition, the absence of any

attempt to integrate the proposed development into the Town of Provincetown generally

or the immediate neighborhood specifically violates MassHousing’s “Sustainable

Development Principles” 3 (Make Efficient Decisions) and 10 (Plan Regionally). For

this reason, MassHousing should deny project eligibility approval as the proposed project

cannot comport with the requirements of 760 CMR 56.04(4)(c)(“that the conceptual

project design is generally appropriate for the site on which it is located, taking into

consideration factors that may include proposed use, conceptual site plan and building

massing, topography, environmental resources, and integration into existing development

patterns…”).

E. Wrong Location: Consistent with the above noted
internal site planning comments is thefact that the project is proposed for the wrong location along Bradford and Commercial

Street, a heavily travelled and congested road with no practical options for widening,

signalization or safety improvements. We ask the Board of Selectmen to ask

MassHousing to look at the project’s proposed location as planners do—holistically—and

in concert with the current activity on this portion and related portions of Bradford and

Commercial Streets. It cannot be that allowing this residential development at this

location is good planning or in the public interest.

F. The “Pro Forma”: The “Financial Information” contained in the application contains

several statements that cannot be supported and should not be rewarded with approval by

MassHousing. First, whereas the purchase and sales agreement (which appears to have

expired on April 1, 2015) reports a total purchase price of $925,082, the claimed site

acquisition cost is identified as $1,315,000. Second, the development budget contains

almost $400,000 of claimed contingency costs. Contingency costs within a pro forma for

a comprehensive permit project are simply disguised profit. Third, the claimed costs

include an average of $18,270 per dwelling unit for “commissions/advertising”. On its

own, a total claimed cost of $438,500 for “commissions/advertising” may be

insignificant. But when reviewed in context, together with numerous other claimed costs

without attribution as to their intended recipient, including the “builder” ($1,015,175 for

“overhead and profit), architect ($448,887) and among others, the “clerk of the works”

($100,000), the result of which is a questionable project pro forma that suggests a project

containing far more dwelling units than would otherwise be necessary to make the project

economically feasible pursuant to MassHousing’s profit guidelines. MassHousing should

reject the budget submitted and reject the project eligibility application where the

submitted pro forma lacks credible support for the true costs of construction for this

project.

G. Eradication of Local Regulations: Development of the proposed project requires the

grant of extensive waivers from Provincetown rules, regulations and bylaws yet the

application to MassHousing contains a grossly incomplete “zoning analysis” (See

Page 8 of 10

application, Tab 3, section 3.4). MassHousing should be aware that construction of the

proposed project would require a wholesale rejection of the Town’s Zoning Bylaw and

Wetlands Bylaw, among others. Such waivers might be justified in cities or towns with

exclusionary zoning practices or who have otherwise imposed “barriers” to affordable

housing. Nothing could be further from the truth in Provincetown. As the Town’s

historic and current development practices make clear, the Town’s land use regulations

are inclusive, reasonable and the result of deliberative decisions of the Town’s legislative

body for hundreds of years, most recently with regard to the construction of housing that

is affordable to local residents. As discussed within this letter, the proposal before

MassHousing is anything but well designed, thoughtful or rationally connected to the

locus or the neighborhood. Rather than even attempting to comply with the Town’s

wholly reasonable regulations and self evident restrictions imposed upon the locus given

its presence of coastal banks and a regulated flood plain, the applicant callously claims

the need for a waiver from some of the Town’s land use regulations and fails to inform

MassHousing of the need for many more. Given the parcel’s location within a designated

Flood Zone (AE), proposed construction of a parking garage below the flood zone

elevation and the proposal to destroy a coastal bank, it is illogical to suggest that a

comprehensive permit project should somehow be exempt from the public purposes

served by Provincetown’s Wetlands and Zoning Bylaws, among many others. These facts

alone should allow MassHousing to conclude that the proposed project is totally

inconsistent with rational site development and site planning standards. For these reasons

as well as those noted below, MassHousing should deny project eligibility approval as the

proposed project cannot comport with the requirements of 760 CMR 56.04(4)(c)(“that the

conceptual project design is generally appropriate for the site on which it is located…”).

H. Relevance of the Provincetown Wetlands Bylaw: Consistent with the comments above, it

is clear that a majority, if not all, of the proposed project is subject to the jurisdiction of

the Provincetown Conservation Commission pursuant to the Wetlands Protection Act and

Wetlands Bylaw. It is difficult to imagine a development project with such extensive

intrusion into regulated wetland resource areas. For this reason, MassHousing should

deny project eligibility approval as the proposed project cannot comport with the

requirements of 760 CMR 56.04(4)(c)(“that the conceptual project design is generally

appropriate for the site on which it is located, taking into consideration factors that may

include proposed use, conceptual site plan and building massing, topography,

environmental resources, and integration into existing development patterns…”).

I. Bait and Switch: As with many comprehensive permit applications, the applicant has

maximized the locus with the full knowledge that should MassHousing grant project

eligibility approval, the Board of Appeals will likely suggest a smaller, less intrusive

development. This trick—propose the maximum number of units that can be crammed

onto a piece of paper and “settle” for less—is as old as the statute itself. Sometimes, but

not here, the ploy works. The Town and the neighbors, fearing a grossly hostile project,

accept one that is slightly less hostile. In this case however, the proposed project and

virtually any recasting of this project are unacceptable. Once again, MassHousing should

deny project eligibility approval as the proposed project cannot comport with the

Page 9 of 10

requirements of 760 CMR 56.04(4)(c)(“that the conceptual project design is generally

appropriate for the site on which it is located, taking into consideration factors that may

include proposed use, conceptual site plan and building massing, topography,

environmental resources, and integration into existing development patterns…”).

J. Total Score: Zero: We ask the Board of Selectmen to inform MassHousing that the

proposed project violates and ignores MassHousing’s “Smart Growth Criteria

Scorecard”
7. Simply put, using the “Smart Growth Criteria Scorecard”, the project scores

zero (0) points.

The project does not “contribute to revitalization of town center”

The project does not “preserve and reuse” historic structures;

The project does not have a “letter of support from the Chief Elected Official”;

The project does not “concentrate development” most notably in that the proposed

development is not “compact and/or clustered so as to preserve undeveloped

land”;

The project does not “restore and enhance the environment”;

The project is not “fair”; it does not “improve the neighborhood” or include a

“concerted public participation effort”;

The project does not “conserve resources”;

The project does not “provide transportation choice” and is totally “unwalkable”

to year round public transportation options;

The project does not “increase job opportunities”;

The project does not “foster sustainable businesses”; and

The project does not “plan regionally”.

With a literal score of zero (0)—using MassHousing’s own “Scorecard”—we cannot

fathom any response from MassHousing other than a categorical rejection of the

Applicant’s request for Project Eligibility approval.

K. Applicant’s Certification: The applicant has certified that the application materials are

“true and complete” and has informed MassHousing that there is no “pending litigation

with respect to any of the Applicant Entities”. See application, page 21. “J. Bruce

MacGregor” is identified in the application as a “General Partner” under the heading,

“List All Principals and Controlling Entities of Applicant”. See application, page 19. A

“J. Bruce MacGregor” is also a “Manager” of Bartlett Pond Village, LLC. (see

http://corp.sec.state.ma.us, last visited April 21, 2015). Bartlett Pond Village, LLC is a

co-defendant with the Housing Appeals Committee in an action brought by the Town of

Wareham Board of Appeals, pending in Plymouth Superior Court (see, docket

PLCV2014-01131-B, last checked April 21, 2015).

7 MassHousing’s “Smart Growth Criteria Scorecard” incorporates the Commonwealth’s

“Sustainable Development Principles”.

Page 10 of 10

Conclusion

We understand the Board of Selectmen’s role in this process, that is, to provide

comments to MassHousing with regard to applications seeking project eligibility letter

approval. We also understand MassHousing’s role: as a bank, MassHousing is reluctant

to deny approvals of the very projects that they are in the business of funding or from

which generous fees are collected.

However, in some cases, particularly where the project will obliterate a coastal bank used

for flood control and storm damage prevention; where the project scores a literal “zero”

using MassHousing’s scoring criteria; where the project ignores established

environmental justice principles, and where the applicant has not demonstrated the basic

requirements of site control, MassHousing is obligated to reject the application. This

application is precisely that case.

On behalf of Cydney Berry, Elizabeth Read and James Turner, please let me know if you

have any questions or would like additional support for any of the comments made

above. Thank you.

Very truly yours,

HUGGINS AND WITTEN, LLC

/s/ Jonathan D. Witten

Jonathan Witten