Whose woods these are? I think I know: Part 6, And miles to go before I sleep

November 25, 2014 | Affordable Housing, Belmont, Cambridge, Chapter 40B, Development, Eminent domain, Environmentalism, Housing, Inclusionary zoning, Local issues, NIMBY, Protests, Zoning | No comments 81 views

[Continued from yesterday’s Part 5 and the preceding Part 1, Part 2, Part 3 and Part 4.]

By: David A. Smith

Finally, in the story of the potential 298 apartments in Belmont, 60 of them affordable (at no cost to the Town of Belmont, mind you), we come to the (most recent) day of reckoning, the antagonists’ petition for an injunction against clearing the site.

Sources used in this post

Boston Globe (December 24, 2010; gray-blue font)

Boston Globe (June 26, 2014; red font)

Cambridge Day (October 13, 2014; emerald font)

Cambridge Chronicle (October 14, 2014)

Cambridge Chronicle (October 15, 2014; blue font)

Boston Globe (October 25, 2014; brown font)

three_days_condor

What are we waiting for?

Three days after the hearing, on October 21, the request for injunction was denied (cerulean font):

After review and hearing on 10/16/14, the plaintiff’s motion for a preliminary injunction is DENIED. To obtain the extraordinary relief of an injunction, the plaintiffs must prove:

(Emphasis added.)  It’s always good jurisprudence to include in a ruling, even a simple ruling, the relevant law and reasoning, so that observers (like your humble correspondent) follow the logic and the basis, and the judge did this:

1.     Without the relief sought, plaintiffs would suffer irreparable harm.

2.     There is a likelihood of success on the merits of this case. and

3.     Any harm to the plaintiffs would outweigh the harm which the injunctive relief would inflict on the defendants. John T. Callahan & Sons, Inc. v. City of Malden, 430 Mass. 124 (1999).

Plaintiffs have failed to show [x] a likelihood of success on the merits of this case and [y] a substantial risk of irreparable harm in the absence of an injunction.

commodus_say_no

I’ve heard better arguments from the lions

In our legal system, anyone can go to court, at no cost (except lawyers if one wants to hire them as service providers), and while the law provides sanctions for frivolous lawsuits, these are imposed seldom, I believe on the reasonable presumption that ordinary people shouldn’t be fined for not knowing the law … until they are informed of it.

The court declines to impose sanctions on the plaintiffs for their failure to disclose the seven year history of unsuccessful litigation regarding this development of an affordable housing project.


That last statement, though dicta, is significant; one might translate with a growl as, Don’t come back to this court again. 

growling_dog

I get the idea

The previous temporary restraining order issued on 10/20/14, is hereby vacated. SO ORDERED. (Rosalind H. Miller, Justice, Dated: 10/21/14)

judge_miller

Sorry, plaintiffs, your injunction is denied

So the antagonists, if they wish to continue opposing – and as I’ve occasionally written, in a protracted conflict the fight itself becomes the end – must find another ground.  They tried shaming the construction lender:

“Prudential Financial and their partners are the only ones who stand to gain from this project,” Kraus said –

That statement is a total howler, wrong in every respect.  Start with the simplistic: Prudential is a lender, not an investor, so it its renting its money and wiill have no share in the profits. 

– “while the town and city residents and wildlife will lose a vital floodplain habitat and the protection for current and future generations.”

The 60 families who will move in to the affordable apartments will clearly gain, and I submit the 238 more families who will buy the condos will also gain because they’ll be able to move into a desirable town with minimal affordable housing (and, as far as I can tell, not a single affordable property in town).

tudor_in_belmont

A representative home in Belmont

Ordinarily one would expect people of Ms. Kraus’s disposition to think that inclusiveness is its own goal, and that any form of exclusion, even a separate entrance to a common building, is an outrage.

Officials in surrounding communities say they regularly hear from residents who oppose the development. Jennifer Letourneau, Cambridge’s conservation director, said she often fields calls from people who are upset about the proposal.

Being upset is everyone’s prerogative.

im_upset

“Residents of Cambridge, as well as abutting towns, just feel as though there is a missed opportunity to have space that does not have buildings on it,” said Letourneau. “They want to talk about it. They want to know why. They want to know how this is legal, how they’ve met the development threshold.”

That’s an interesting aside, because it reveals so much.  It presumes that the owner of a land is not entitled to use it in any way he or she wants (within the zoning); instead it presumes that any form of new use must meet some ‘threshold’ (which from the context can be interpreted as ‘meeting with the neighbors’ approval’), as if zoning is meaningless.

“It could make for a very great wilderness area, a park for people to come to from Arlington, Belmont, and Cambridge,” Brownsberger said.

I wonder if Senator Brownsberger has actually walked in those woods; though I haven’t, I’ve driven up and down Route 2 so many hundred times I can attest that the land is a strip of forest, nice enough I suppose, but nowhere near as nice as Fresh Pond, which I’ve also driven by hundreds of times and which is in every way better than this parcel: larger, greener, less noisy from traffic. 

fresh_pond_reservation

Two and a half miles around the pond, good views along the way

Clearly the existence of one green woods does not preclude creating another, but that must be balanced against the value of delivering affordable housing to one of greater Boston’s more desirable towns.

“This is an area that I have been visiting for the last few years, and I just feel responsible for protecting it and for its well-being,” [Madeleine Sis, 21, a junior at Lesley University] said around 7:30 a.m. as the crowd was setting up camp. “In a way this is a battle. It’s something that’s going right in those woods.”

Finally, there’s Rozann Kraus (self-taught Masters of BS, Arts, Homo Sapien Antics and Commitment), who decided to start a hunger strike:

kraus_hunger_strike_tweets

After seven hours of hunger-striking, Ms. Kraus tweeted: “Getting really hungry; this will pass.  I will not eat until the SMF carnage is stopped.  Are you listening, Deval?

Deval Patrick

You talkin’ to me?  You talkin’ to me?

Eleven days later, a day after the Cambridge hearing [With nothing about the forest on the agenda – Ed.] she referenced, Ms. Kraus tweeted:

hunger_strike_over

Perhaps the anti-development fight is not over for Ms. Kraus, and those who like her are objectively anti-affordable housing, but for the Acorn Park development, I think it is.

The woods are lovely, dark, and deep,
But I have promises to keep,
And miles to go before I sleep,
And miles to go before I sleep.

frost_something_to_say

 

convert this post to pdf.

Whose woods these are? I think I know: Part 5, But I have promises to keep

November 24, 2014 | Affordable Housing, Belmont, Cambridge, Chapter 40B, Development, Eminent domain, Environmentalism, Housing, Inclusionary zoning, Local issues, NIMBY, Protests, Zoning | 1 comment 126 views

[Continued from Friday’s Part 4 and the preceding Part 1, Part 2, and Part 3.]

By: David A. Smith

By now, with four parts of this story completed, the opponents of a private owner’s development of its own property (consistent with the statewide zoning and the Chapter 40B mandate that all cities and towns have a least 10% affordable housing) had failed in every case they had brought, and despite this seemed if anything even more motivated to think of some other legal claim they can bring to somebody.

Sources used in this post

Boston Globe (December 24, 2010; gray-blue font)

Boston Globe (June 26, 2014; red font)

Cambridge Day (October 13, 2014; emerald font)

Cambridge Chronicle (October 14, 2014)

Cambridge Chronicle (October 15, 2014; blue font)

Boston Globe (October 25, 2014; brown font)

The antagonists have time, and they invest it in the cause.  Do they invest anything else?

4A. The context: In their procedural and political fights, the antagonists neither invest nor risk anything they value.

Belmont Town Administrator David Kale said that local officials have not taken a stance on the project, and that the developers have cleared a series of town requirements in order to move forward with the project. Kale also said it remains to be seen how the development would affect Belmont.

It will affect Belmont by bringing desperately needed affordable housing; by adding to the tax base; and probably by increasing school enrollment.

“There’s been lots of conversation with people wishing they could’’ raise the money [From other people, evidently – Ed.], said state Senator William Brownsberger, “but that hasn’t come together throughout the years.”

Preserving the forest is simple, Senator Brownsberger: buy it, with non-governmental money, because the Commonwealth has already rejected the idea.  Then explain to your constituents why you were involved in thwarting 60 units of affordable housing in Belmont.

State

He doesn’t mean to be anti-affordable housing … he just is

4B. The antagonists: Opposition is its own end. 

Gina-Maria Giuliano, 21, of Somerville, and Cambridge residents Ellen Mass, 71, founder of Friends of the Alewife Reservation, Joanna Herlihy, 80, Susan Jane Ringler, 60, and Madeleine Sis, 21, a junior at Lesley University, were arrested around 10 a.m. for trespassing after they marched into the forest and refused to leave, according to Belmont Police Assistant Chief James MacIsaac.

Of the four people arrested for trespass, three pleaded guilty, paid $100 fines, and were released the same day; one, Danny Factor, the Green Party of Massachusetts candidate for Secretary of State (he lost) pleaded not guilty and is scheduled to be tried December 1.  He, at least, referenced affordable housing, via a new billion-dollar tax.

Not for the first time, [developer lawyer Julie] Barry has also asked the judge to consider sanctioning citizens for continuing to challenge the project [extra-] legally. She referenced yesterday’s protest against the development on Acorn Park Drive in Cambridge that resulted in five arrests for trespassing.

hundred_dollar

Like vitamins, one a day buys you a day

Right; a hundred-buck fine, to be raised in ten minutes by donations from bystanders (or even sub-rosa NIMBYites) is inconsequential compared with a multi-million-dollar development, and if the four hundred bucks buys another month, the opponents will pay that price indefinitely.

“Sanctions, perhaps, would finally convince plaintiffs and others who are behind them that it’s time to let this go,” Barry said. “In addition, this might have the benefit of dissuading people from trespassing on the property.”

Nothing else will, because lawfare has become its own asymmetric warfare.

5. Lawfare as obstructionism

gandhi_salt_march

I’m not doing anything illegal but I intend to do something illegal

Gandhi first grasped that civil disobedience could be turned into political performance art for the media, and that this strategy worked only against people who respected the rule of law.  To us he bequeathed the curious inversion that in a world of politics via media, ‘victimhood’ is the high ground: if my claim of victim class is more heart-tugging than yours, I win.

lorax_speak_trees

I can say anything I want because the trees will not contradict me

5A. The context: Lawfare has no downside.

Over the years, development opponents have experimented with and continuously refined guerrilla lawfare – the art of using legal challenges, real or spurious, as hit-and-run tactics designed to pin down, distract, and gradually weaken the fixed target.

A judge could soon decide to halt tree-cutting in the Silver Maple Forest, 15 acres of open space next to Arlington, Cambridge and Belmont that developers plan to turn into nearly 300 units of housing.

Key to NIMBY lawfare is seizing the mantle of victimhood, preferably on behalf of a class of victims who cannot dispute your representation (trees and ‘mammals’ are good ones) and making these mute victims political shields.

soviet_partisans

See any developers?

It nettles me precisely because it is effective and subversive; it defeats policy with self-interested disingenuous tactics

In this latest challenge to the project, Middlesex Superior Court Justice Rosalind Miller today allowed opponents one more day to produce written arguments. Miller said she will decide promptly whether to order developer O’Neill Properties to stop work in the area while a civil case progresses.

judge_miller

She decided, as she had to, that there were no grounds for an injunction … but the antagonists had their tactical wins: political theater, favorable press coverage, and procedural delay.

5B. What the antagonists claim: the ends justify the means. 

Unless one believes that the world has as many people as it needs, and no more, then cities will grow, and for them to grow, their built environment must become more dense (people supported per square mile), which by virtue of technology can be accomplished without ruining the environment.  (The proof is that technologically advanced countries and cities have longer lifespans, healthier people, and cleaner air and water.) 

green_cities

The future is vertical

More people means more built environment – and except for the enterprising land-creating Dutch, that means more density, either by going vertical or by building on greenfield.  (Yes, Belmont could rezone for verticality, which would trigger its own rounds of local anti-development anger, and most of the town is already developed as single-family residential; it’s virtually a monospecies, the definition of a bedroom community.)  What then is Belmont to do?

Cambridge citizenry [How many citizens? – Ed], however, is engaged and enraged, with Ellen Mass of the Friends of Alewife Reservation accusing the town of Belmont as enabling the razing of more than 700 trees over eight acres with three friendly zoning changes.

Ms. Mass, it’s called Chapter 40B, it’s a state requirement, and it’s sound policy.

ellen_maas_robert_lowell

Ms. Mass and Robert Lowell

On October 16, community members filed for an injunction to halt construction. Developers responded to the injunction filing by beginning to clear the site of trees on October 18. This came as a surprise to local environmentalists, who expected construction to be delayed until the injunction was ruled upon.

[Continued tomorrow in Part 6.]

 

convert this post to pdf.

Whose woods these are? I think I know: Part 4, To ask if there is some mistake

November 21, 2014 | Affordable Housing, Belmont, Cambridge, Chapter 40B, Development, Eminent domain, Environmentalism, Housing, Inclusionary zoning, Local issues, NIMBY, Protests, Zoning | No comments 204 views

[Continued from yesterday’s Part 3 and the preceding Part 1 and Part 2.]

By: David A. Smith

Yesterday’s post on the saga of a site’s (so far non-) development ended with Massachusetts State Senator Will Brownsberger introducing, and having the legislature pass, a law that would authorize the Commonwealth to grant Belmont money for Belmont to try to buy the site at issue.

Sources used in this post

Boston Globe (December 24, 2010; gray-blue font)

Boston Globe (June 26, 2014; red font)

Cambridge Day (October 13, 2014; emerald font)

Cambridge Chronicle (October 14, 2014)

Cambridge Chronicle (October 15, 2014; blue font)

Boston Globe (October 25, 2014; brown font)

The legislation didn’t pass, thus mooting the question of whether Belmont would have succeeded in a hypothetical eminent-domain taking litigation, and if so whether the appropriated money would have been enough.  Still, the senator conjured some political vaporware and converted it into localized political capital, and while the senator was artfully not accomplishing anything of substance, the development plan was improving from the conservationists’ perspective:

However, the scope of the project changed after area residents raised objections. O’Neill Properties is in the process of acquiring the building permit to construct an affordable housing complex [Inaccurate; only 20% affordable – Ed.] in the 15.6-acre forest, which is primarily located in Belmont with 2.6 acres in Cambridge.

groucho_huxley_gavel

And even when you’ve changed it or condensed it, I’m against it!

Thus Cambridge has no standing and no legal case.

Of that, 7.95 acres, including the portion Cambridge owns, is protected land under a conservation easement, according to a report Cambridge City Manager Richard Rossi submitted to the City Council in September.

The absence of involvement or interest didn’t stop a Cambridge city councilor from chorusing that whatever it was, it too was against it:

marc_mcgovern

I don’t know what they have to say, it makes no difference anyway

Cambridge City Councilor Marc McGovern, who attended Tuesday’s protest, said he would most likely introduce a policy order on Monday to prevent O’Neill Properties from staging construction equipment and a drainage pipe in Cambridge-owned land.

Obviously, if a portion of the land is owned by Our Fair City, then the city can prevent trespassing by people or by construction equipment – though I am sure Councilor McGovern would take offense if I observed that his actions are objectively anti-affordable housing.

just_because_youre_offended

At least the councilor is realistic that his action will have no practical effect and is purely political theater:

political_theater

In political theater, the curtain never goes down

“It’s tough because I don’t want to get people’s hopes up for something that may not make a huge difference,” McGovern said.  “We can certainly file an order saying that we don’t want Cambridge land to be used for anything, including this drainage pipe that’s on the plans, as well as scaffolding, construction equipment or anything else. Is that going to stop this guy from building a huge project? No, they’ll move it, and they’ll do it somewhere else.”

In any case, I doubt the developers were planning to stage anything on Cambridge land anyhow.

3B. The antagonists: There are new rules. 

Over the last ten years, those opposing the property have shown that if one argument is rebutted, offer another; and if the evidence is refuted, make up your own, such as climate-change scientist Dennis Carlone:

The current housing proposal does not adequately meet the needs for storm water management in the 50-, 75- and 100-year storm scenarios, all of which are expected to increase in severity due to climate change, according to a July 28 policy order filed by Cambridge City Councilor Dennis Carlone.

dennis_carlone

Dennis Carlone: City councilor and climate change expert?

Environmental activists oppose the project for several reasons.

As no qualifications are required to be an ‘environmental activist’, any such statement should be preceded by ‘self-appointed.’

They say destroying the forest would exacerbate climate change [How? – Ed.] and flooding issues in the Mystic River watershed by removing land that acts as a natural sponge.

More of a sponge than Spy Pond, Fresh Pond, and the nearby streams?

“It’s the last of the large Boston-area urban wilds,” said Ellen Mass, president of the Friends of Alewife Reservation, whose group runs cleanups and educational walks in the forest.  She added: “If those trees are cut down, Cambridge’s largest wetlands will be impacted.”

fresh_poond_runcityrun_gearth

Fresh Pond in Cambridge: large, wet, and preserved

[Development opponents] also say destroying the forest would squander an opportunity to preserve a natural area in a densely populated region that is home to 21 species of mammals.

That argument would be perfectly valid if the City of Cambridge owned the land, because then the public would be debating what to do with a public resource.  But the Belmont land is privately owned, so the opponents are in effect saying, The public interest demands that we seize your right to develop your private property – without, of course, bothering with due process or just compensation as required by eminent domain.

When you have no argument and no standing, even better than advancing an argument is asking for a delay to give you time to create an argument (and hope everyone forgets your lack of standing):

The project’s opponents are also planning to attend the Belmont Board of Selectmen’s meeting on July 7 to ask that the town delay issuing a permit until Cambridge completes its climate vulnerability assessment, expected to be later this year.

In other words, people from Cambridge decided to visit the neighboring town to ask its elected officials to take no action to address a critical problem in Belmont (affordable housing) while Cambridge spent half a year studying whether Cambridge had a problem.

cambridge_city_council_hearing

Do we have a problem, citizens?

Of course, if one has no standing and no legal arguments, one can always try rumor:

[Development opponent attorney Mike] Connolly posted last week a photo purporting to show the cleared section of Belmont forest, warning that “people who are close to the situation report that removal of the trees could take place in a matter of days.”

(A few days later, October 20 to be exact. the developer started clearing the site.)

Preventing the development has become an article of faith, not reason, and is treated as such by the faithful:

Idith Haber, an opponent of the project there for today’s hearing, said she believes there is still hope to stop the project.

“We keep going back to the courts, and that’s based on optimism that when we read our complaints, we feel that they’re strong every time,” Haber said.

linus_doesnt_matter

“It doesn’t matter what you believe as long as you’re sincere.”

4. Investment in the outcome

Multiple area groups have joined efforts in an attempt to save the forest, including Friends of the Alewife Reservation, Green Cambridge, the Mystic River Watershed Association, Lesley University’s Division of Science and Mathematics [Some faculty in that division, not the entity itself – Ed.], Fresh Pond Residents Alliance, and the Climate Action Coalition.

Anyone can have a name and a Web site, and while I didn’t delve deeply, none of the groups except MRWA appear to have any size.  Normally in litigation one is expected to post bond for damages, and in business any seller checks the buyer’s potential credit.  Perhaps these groups should be charged court costs if they litigate frivolously or without standing.

bart_frivolous_lawsuit

Several years ago, officials and activists discussed a potential plan for the surrounding communities to purchase the property, which was assessed [Appraised – Ed.] at $13 million, but that never came to fruition.

Actually, there’s no guarantee that thirteen million would do the trick, as the owners might have no interest in selling.  For over a decade, they’ve been resolute in trying to develop it, and will have spent hundreds of thousands (if not more) out of pocket, to say nothing of carrying or lost-opportunity costs. 

Thirteen million would be the opening buyer’s bid if eminent domain were deployed, which Belmont obviously has no desire to do and Cambridge has no standing to do.

“Attempts to negotiate with the developer have also failed. Representatives of the Trust for Public Land have been reaching out to the owner – as have concerned residents and even some friendly developers – but so far, every effort to secure an option to purchase the forest has fallen through,” Connolly said.

In this context, ‘option’ is just another phrase for ‘give us time to delay you.’  You want to buy it, Mr. Connolly?  Don’t bring words, bring cash.

But it appears the opponents either have no cash or are choosing not to commit any of theirs.

no_cash_or_valuables

But we have standing anyhow

[Continued Monday in Part 5.]

 

convert this post to pdf.

Whose woods these are? I think I know: Part 3, Between the woods and frozen lake

November 20, 2014 | Affordable Housing, Belmont, Cambridge, Chapter 40B, Development, Eminent domain, Environmentalism, Housing, Inclusionary zoning, Local issues, NIMBY, Protests, Zoning | No comments 115 views

[Continued from yesterday’s Part 2 and the preceding Part 1.]

By: David A. Smith

As we saw yesterday, those in Cambridge who oppose development in development have no legal standing – they do not own the land and they’re not elected or appointed officials with sway over Belmont’s zoning.

not_my_fault

Sources used in this post

Boston Globe (December 24, 2010; gray-blue font)

Boston Globe (June 26, 2014; red font)

Cambridge Day (October 13, 2014; emerald font)

Cambridge Chronicle (October 14, 2014)

Cambridge Chronicle (October 15, 2014; blue font)

Boston Globe (October 25, 2014; brown font)

To them, however, any standing, no matter how tenuous, is good enough.

2B. The antagonists: Anyone who opposes can raise any anti argument. 

Realizing the political weakness of neighboring busybodies protesting, the antagonists found some Belmont residents to oppose the project:

happy_were_opposed

The decision will come in response to an application from 14 Belmont residents who live near the project for an injunction on construction, arguing state and federal regulations, as well as local statutes, are not being properly enforced.

None of the fourteen Belmont residents (whose names weren’t in the public record that I could easily find) was a public official, and in fact no public body – not the town of Belmont, not the state – raised any continuing objection, because the zoning and development issues were addressed in prior hearings, applications, and in some cases court proceedings.

The developer has already obtained all the necessary permits from the state and from Cambridge, and has submitted about 95% of the documents needed to secure a Belmont building permit, according to Glenn Clancy, the town’s director of community development.

Evidently the antagonists concluded that the relevant elected officials had failed in their duty, because they sought to bring citizen’s litigation:

According to Cambridge attorney Mike Connolly’s SilverMapleForest site: “The lawsuit, brought forward by 14 Belmont residents … states that there will be harm to the environment if regulations required by the Clean Water Act and the Belmont Stormwater bylaw

Even granting arguendo that the residents have standing, the Belmont Stormwater bylaw appears not to be approved, merely a draft:

– are not enforced.  The suit seeks to stay the removal of the trees until those provisions are enforced.”

In this, the antagonists are adopting the same reasoning and tactics used in California, where under the California Environmental Quality Act (CEQA; pronounced see-kwa) they do have standing to raise objections for (in alphabetical order) aesthetics, agricultural resources, air quality, biological resources, cultural resources, geology and soils, greenhouse gases, hazards and hazardous waste materials, hydrology and water quality, land use and planning, mineral resources, noise, population and housing, public services, recreation, transportation and traffic, and utilities and service systems.  If one cannot find a claim in there, one isn’t even one-quarter trying.  No wonder California has skyrocketing affordable housing costs and hence the nation’s least-affordable market in Los Angeles.

economist_la_storeys_01_map_140824

Thanks, CEQA!

The arm-waving environmental argument was made formally in court a few days later:

Thomas Bracken, representing the citizens, said the group’s arguments to stop the project are valid due to restrictions in Belmont’s stormwater bylaw.

“It is our contention that the local bylaw prohibits cutting down these trees,” Bracken said in court. “The permit process is very important, and this process has not been dealt with in the long history of litigation under the Wetlands Protection Act.”

Did the antagonists have a legal case?

3. Legal case

In pursuing legal arguments, the antagonists have certainly been trying long enough – if this report is correct, they’ve been at it for sixteen years:

time_1998

It seems an eternity ago, doesn’t it?

The ongoing conflict over the Silver Maple Forest, which is an integral part of the Alewife Reservation ecosystem, started in 1998 when O’Neill Properties announced that it planned to clear the woods and build a commercial development.

When it bought the property, O’Neill can have had no idea what it was in for:

The conflict over the Belmont Uplands property has stretched on for the past 15 years, but after dealing with a series of legal challenges and appeals from state and local agencies, developer O’Neill Properties of Pennsylvania would be cleared to begin construction if it secures a building permit from Belmont.

3A. The context: Every legal argument has already been raised and litigated.

For the last decade and a half, O’Neill has been laboriously, and one must conclude patiently, working through Massachusetts’ approval procedures:

ellen_mass_portrait

Ellen Mass: appeal?

[Ellen Mass of the Friends of Alewife Reservation] said, “environmental groups and the Belmont Conservation Commission litigated for five years with the state Department of Environmental Protection on the grounds that the proposed development violates the Wetlands Protection Act in several categories.” 

Obviously they lost; so that they litigated is unconvincing evidence now.

“Environmentalists claim the development location in the midst of a floodplain forest will be in violation of FEMA floodplain designations when the structure is built, including numerous municipal/ state guidelines, including habitat protection.”

That is why we have courts – so that things claimed can be proven, left unproven, or disproved.

But Julie Barry, who is representing the developers, argued the neighbors’ latest challenge to the project is unfounded, and that after seven years of court battles

All of which the opponents have lost.

– further legal discussion about permitting and regulations is not necessary.

julie_pruitt_barry

Ms. Barry wants her client to have seven good years after having had seven bad years

The antagonists also lost with the state agencies, none of whom (in my experience) is a patsy or a developer catspaw.

catspaw_1944

Not a catspaw except in its grip on the issues

The proposal passed the state Department of Environmental Protection’s scrutiny in 2010, when the agency decided that the developer had taken the proper steps to mitigate damage to the surrounding wetlands and protect nearby Belmont neighborhoods from flooding.

The developer accomplished this, one must emphasize, by building environmental infrastructure:

Three acres of the parcel are in Cambridge, and Jennifer Letourneau, Cambridge’s conservation director, said that, in 2008, the city’s Conservation Commission granted the developers a permit to build a vegetated water-quality detention basin on the property.

She said the Cambridge portion is protected from further development by a conservation restriction.

If the environment was the concern, then the law must be satisfied:

now_im_satisfied

Now I’m satisfied

“The fact of the matter is there is nothing left to be appealed here. The project is lawfully permitted and should be allowed to proceed,” Barry said in court.

Some people – say, a state legislator – realize that eventually protest becomes not civil disobedience but law-breaking:

“Even the staunchest defenders of the forest admit we are in a very difficult position” in terms of blocking development, [Cambridge environmental attorney Mike] Connolly said, citing two attempts at preservation funding by state Sen. Will Brownsberger that were blocked by Gov. Deval Patrick and constraints faced by Belmont in stopping a project bringing the town even the minimum amount of affordable housing.

brownsberger_and_patrick

And, governor, I’d like to spend thirteen million of the Commonwealth’s money to thwart affordable housing in my district

Though Senator Brownsberger presents himself as a thoughtful progressive, it seems extremely odd (aside from spending the state’s money on what is purely a local issue) to placate the locals by opposing something that the Town of Belmont so plainly needs. 

The Democrat from Belmont said he opposes developing the land, and would like to have the silver maple forest become part of the Alewife Reservation.

If so, then the senator is objectively anti-affordable housing, and should explain to his constituents either why he believes Belmont should remain so exclusionary, or alternatively how he proposes to have Belmont develop affordable housing – as far as I can tell, the town has no affordable-housing production plan whatsoever – and how he intends to protect Belmont from the risk of even worse depredations by the Dreaded Texas Developer

(Also, and not trivially, even if the money had been appropriate, the Town of Belmont would then have had to undertake a formal eminent domain taking procedure, and there’s no guarantee either that the case would have prevailed in court or that the thirteen million would have been enough – in fact, it likely would have been too little, meaning that the voters of Belmont would have had to pay for it out of their real estate taxes.)

The governor actually pocket-vetoed the proposal, so I do wonder if the whole thing was simply a political kabuki dance designed to create mutual political capital with no actual cost:

kabuki_odoriweb_shogo

See, constituents?  I seek to bring you what you want

  1. The senator tells the governor that he is bringing this forward to show his constituents he was doing something.
  2. The senator and his colleagues arrange it within the legislative calendar so it would be passed only at year-end.
  3. The governor is thus able to veto it by doing nothing. 

[Continued tomorrow in Part 4.]

 

convert this post to pdf.

Whose woods these are? I think I know: Part 2, He will not see me stopping here

November 19, 2014 | Affordable Housing, Belmont, Cambridge, Chapter 40B, Development, Eminent domain, Environmentalism, Housing, Inclusionary zoning, Local issues, NIMBY, Protests, Zoning | No comments 164 views

[Continued from yesterday’s Part 1.]

By: David A. Smith

Yesterday’s post, opening with the arrest in Belmont of anti-development protesters who live in Cambridge for trespassing on private property that a Philadelphia-based company has been trying for a decade to develop into high-density housing, 20% of it affordable, ended by asking, where in fact is this property?

Sources used in this post

Boston Globe (December 24, 2010; gray-blue font)

Boston Globe (June 26, 2014; red font)

Cambridge Day (October 13, 2014; emerald font)

Cambridge Chronicle (October 14, 2014)

Cambridge Chronicle (October 15, 2014; blue font)

Boston Globe (October 25, 2014; brown font)

We can zoom in to here:

belmont_zoning_acorn_park_site

Carved by an off-ramp from Route 2

Look in the upper right, the blue and green striped section bounded to the north by the Concord Turnpike (Route 2), and bisected by the curving connector street labeled “Ramp-Lake St to Route 2 EB” and “Ramp: Rt 2 EB/ Acorn Park Rd to Lake St.”).  See the area just south of it? 

That is the development site. 

  1. It’s as far from Belmont as it is possible to get and still be in the town.
  2. It’s as close to transportation (aside from Route 2, Alewife, the outermost stop on the Red Line, is walkable from the site) as it is possible to get in Belmont.
  3. Its immediate abutters are commercial and office (Acorn Park).

Regarding Cambridge Discovery Park (formerly known as Acorn park), Wikipedia has this to say

The Park is master-planned for six different LEED-certified office and laboratory buildings totaling up to 820,000 sf and two structured parking garages. Today the Park consists of an abundance of green space with walking and bicycle trails as well as two buildings and a parking garage. More specifically: The Smithsonian Building at 150,000sf+/-; The Forrester Building at 200,000sf+/- (LEED Gold certified), and a 650+/- Car Parking Garage. Permits are in place for three to four additional buildings totaling 450,000sf+/- as well as a second structured parking garage.

High-tech jobs doing globally important green work.  We certainly wouldn’t want anyone working there to live close to their jobs, would we?

Cambridge Discovery Park and surrounding Alewife Brook Reservation represents one of the largest campuses in Cambridge (after Harvard and MIT) and is home to world-class tenants including Forrester Research, The Smithsonian Institution Astrophysical Observatory, Siemens, Pfizer, and Genocea Biosciences.

cambridge_discoery_park

If I understand correctly, the proposed development site is the greenery just below the access road at the picture’s left.

As we saw in Milton, antagonists can find something to criticize in any location – so if one cannot develop in Belmont there, can one develop in Belmont anywhere?

calm_impossible

This it isn’t just developers who see the issue in those terms; anyone looking at the evidence would conclude that opposing the development of this site is tantamount to opposing any affordable housing in Belmont.

Belmont’s town government knows this.  It knows the town had better do something, and soon; preferably something that’s away from the city center and close to the natural development corridors:

Belmont’s zoning board permitted the project because Chapter 40B allows for zoning leeway in towns where less than 10% of the housing stock is affordable.

This location was and is ideal – close to jobs, close to transportation, close to Cambridge.

The 15-acre forest between Route 2 and the Alewife Brook Reservation is due to get a five-story building of nearly 300 units and around 500 parking spaces called The Residences at Acorn Park. Philadelphia-based O’Neill Properties introduced its $70 million plan in 2005, finding fierce but so far futile opposition from environmentalists and lovers of the densely wooded forest and its wildlife.

residences_rendering

Their opposition hasn’t been futile: It has slowed the development, shrunken the development, and cost the Town of Belmont and the developer nearly ten years – so sixty families that would otherwise be living affordably in Belmont are living somewhere else. 

belmont_boundaries

Lost amid the self-appointed environmentalists’ concerns are those of people – that is, those who might like to live in Belmont. 

[Glenn Clancy, the town’s director of community development] said the developer originally applied for a building permit for the project in September 2010, but since then the state changed its building code, so the company has been working to ensure that its plans comply with the new code.

Nor, despite what you are about to read, was there evidence to persuade the state to be concerned about environmental issues.

State environmental officials have dismissed concerns about potential impacts on nearby wetlands and wildlife, since nearly half the project site will become permanent conservation space.

For the environmentalists that is a pure and ‘free’ win, particularly for the Cambridge side, which is where the conservation land is located.

1B. The antagonists: Belmont need no more people.


[The development’s opponents] are a pack of Cambridge environmentalists, joined by members of the left-leaning Cambridge City Council. Cambridge’s elected officials are doing everything they can to hold up a Chapter 40B affordable housing development that’s not just in another municipality, but in another town.

The Cambridge antagonists don’t need the state’s determination, they have their own:

“We now recognize how vital this upland woods is for floodwater mitigation,” said Susan Jane Ringler, 60, of Cambridge.  “With climate change the Alewife area is already experiencing frequent flood events because we have paved so much of the area and not paid attention to the natural floodplain.  It would never be zoned for dense housing if it were zoned today, but unfortunately it was zoned many years ago.”

belmont_1946_area

A 1946 map of the area shows the development area is east of Little Pond, south of Route 2, north of the railroad tracks

Whether or not that’s accurate – there was obviously development at Acorn Park after 1946 – what Ms. Ringler wishes for is counterfactual and belies the presence of large and protected Spy Pond nearby. 

Rozann Kraus, of Cambridge’s Tromp transportation and traffic group, said, “[this] is poised to destroy one of Boston’s most vital floodplain ecosystems, the Silver Maple Forest, part of a contiguous wildlife and river corridor.”

Take a look at the map above.  With Spy Pond just across Route 2, can one say with a straight face that this is a ‘vital floodplain ecosystem’? 

“In this age of climate change officials are removing the flooding safety net – forest and floodplain – for tens of thousands of Somerville, Cambridge, Arlington, Medford residents by clear-cutting the basin’s largest floodplain forest which remains in the Alewife watershed, exposing them to extreme weather,” Kraus said.

Belmont’s elevation is 44 feet above sea level and there are no rivers nearby. 

alewife_brook

Alewife Brook from Massachusetts Avenue in Arlington

(The Alewife Brook itself is a sleepy stream.)

For the moment setting aside whether the antagonists’ hyperbole is plausible, do they have a basis in which to raise their claim?

2. Legal standing

Throughout their activities, the antagonists are unconcerned that they have no legal standing to bring a case. 

2A. The context: No entity with standing is opposing the development.

More than winning in court, the antagonists of development sought publicity, and were keen to be arrested, in public:

There were five arrests on trespassing charges at about 10 a.m., all Cantabrigians, said Quinton Zondervan and fellow activist Patrick Donworth.

giuliano_141017

Gina-Maria Giuliano, 21, of Somerville is arrested during a protest to save Silver Maple Forest from a looming development project.

Those arrested do not own the land, they’re not abutters to the land, they’re not residents of Belmont, they are not professional experts hired by any of the principals (including the state or the Town of Belmont), and for that matter, the Cambridge land will not be developed at all.

About 2.7 acres of Silver Maple Forest are in Cambridge – but not the area slated for development, minimizing [Cambridge] city government’s ability to play a formal role.

[Continued tomorrow in Part 3.]

 

convert this post to pdf.