Mrs. Pyrrhus’s victory

October 31, 2014 | Cambridge, Chapter 93A, Consumer protection, Home improvement, Just-a-Start, Litigation, Nonprofits, Renovation | No comments 115 views

Proving that even litigation must eventually end, the legal dispute between Cambridge homeowner Shirley Graham and Cambridge non-profit Just-A-Start Corporation has finally closed; as reported in the Cambridge Chronicle (October 15, 2014):


Shirley Graham before her house at 48 Kinnaird Street, Cambridge

Just-A-Start cleared in Cambridge lawsuit

By Erin Baldassari

October 15, 2014

It was a partial win for Cambridge resident Shirley Graham.

Really?  One more such victory might utterly undo her.


Where can I get good pro-bono hoplites?

In a Middlesex County Superior Court ruling issued Oct. 3, a judge found Just-A-Start, the Cambridge-based affordable housing non-profit, not liable for incomplete repair work performed by its contractors.

To be precise, the contractors weren’t Just-A-Start’s contractors, they were Mrs. Graham’s.  She hired them, at Just-A-Start’s recommendation to be sure, and paid them with money Just-A-Start lent her (with zero hard equity down from Mrs. Graham) at the bargain rate of 3.0% interest.

Sources used in this post

Cambridge Chronicle (January 11, 2013)

Cambridge Chronicle (January 18, 2013); brown font

Letter to the Editor published in the Cambridge Chronicle (January 18, 2013); blue font

AHI post, The Price of Charity (April 29-May 3, 2013), Part 1, Part 2, Part 3, Part 4, Part 5; navy blue font


Are you reporting accurately?

A year and a half ago, exasperated at the inaccurate reporting whose inaccuracies all favored the convenient poor-old-woman-exploited narrative at the expense of the facts, I wrote a five-part post, The Price of Charity, that included this reminder:

Whatever Just-A-Start devotes to defending itself here are resources it depletes and that it cannot use to help anyone else; further, if as a result of this Just-A-Start adds new procedures to prevent future litigation from other customers, all those expenses make any other loans more expensive or less available.  Bear those costs in mind as you read the story.

And as you read this post, bear in mind that Mrs. Graham has been disputing and litigating these matters for ten years, via series of attorneys or advisors.


If at first you only settle, sue, sue again

Ms. Graham signed a waiver in May 2004 acknowledging, “Services received by Just-A-Start employees are not to be considered professional/ expert in nature to be used in lieu of appropriate legal, accounting, engineering or architectural services.… They [the undersigned] hereby waive/release claims they may have against Just-A-Start as a result of any performed or omitted [sic] in connection with the services provided to the property listed below.”

Despite the waiver, Mrs. Graham sued anyhow, and as the above timeline shows, in 2012 Mrs. Graham settled the case, signed releases, and was paid money by Just-A-Start.  Shortly thereafter, having evidently cashed the check, she reopened the case, claiming her attorney pressured her into a settlement.  Going back nearly two years, we have this:

[Ms. Graham's claims against Just-A-Start were] dismissed as a result of a confidential settlement agreement reached with Ms. Graham. A challenge to that argument and dismissal is to be heard by the court in February 2013.

In other words, Ms. Graham settled her dispute, and was paid money in that settlement, but now wants to reopen her settlement – but evidently without returning the money she (and her previous lawyer) have been paid.

She litigated on, and in October the judge dismissed her claim against Just-A-Start:


You Dredd being dismissed?

She initially sued Just-A-Start in 2009 for damages to her house after enrolling in their home renovation program, which provides low-interest loans to residents who meet affordable housing income requirements.

Although the statute of limitations had already passed for several of Graham’s claims, she was able to file the lawsuit under the state’s consumer protection laws.

As I wrote at the time:

Graham squeezed her case in based on a four-year consumer protection statute [Chapter 93A – Ed.], but the individual contractors have been dropped from the case.

That’s a shoehorn legal strategy; find a more expansive law, one that requires a higher degree of malfeasance by the target one wishes to sue, and use that as the lever to get the whole case before the courts. 


Feeling pressured?

Rather than fixing the problem, [she says] the contractors did more damage to her already-sloping floor and caused the foundation to shift even more.

That claim was never proven, though as noted above Just-A-Start paid Mrs. Graham $46,000 to enable her to fund additional repairs, and waived accumulated interest on her loan.

Her complaint alleged that both the contractors, who engaged in the work directly with Graham, and Just-A-Start, which monitored the progress of the repairs and recommended the contractors, were liable for the substandard work.

In presenting the story, I’ve had to rearrange the paragraphs to separate the only legal issue (whether Just-A-Start was liable for anything) from the journalistic sympathy issue (whether Mrs. Graham should be able to recover money or work from the general contractor).

[The judge ruled] that Just-A-Start was not liable for the work of its contractors because the non-profit was not engaged in direct “trade or commerce” with Graham.

Neither Just-A-Start nor its employees owned or operated a contracting business, Wilkins said.

“Instead, that role was performed by the companies who entered into contracts directly with Mrs. Graham and who actually did the work,” Wilkins said. “In furtherance of its charitable mission, Just-A-Start simply assisted home owners, such as Mrs. Graham, in locating ‘contractors’ within that definition.”

In that, of course, the judge was right, as I wrote at length a year and a half ago.

Judge Douglas H. Wilkins said it was clear that the work done on her house was unsatisfactory –


Judge Douglas Wilkins

That reporting is curious, and I think it’s likely an incorrect description of what the judge said.  The general contractor was not present in court and had no reason to be present, because they were not a party:

Unless I misunderstand, the structural frame of Ms. Graham’s house was warping or bulging just due to the building’s age.  Ms. Choo’s solution was intended to distribute the upper storeys’ load laterally to the building’s exterior structural walls, and reduce its settlement.  In any case, the renovation work was done by a third party:

The structural work at issue was performed in 2005 not by JAS or its employees but by Third Generation Construction, per architectural plans by [architect Arthur] Choo and Company, not JAS.


Twenty years of residential architecture

Board member of Higher Ground (Boston-area non-profit)

The company, owned by Frank M. Barbosa, is a local general contractor, and it’s significant the contractor has never been a party to the litigation as either plaintiff or defendants. 

But the October hearing had only one issue: whether Just-A-Start engaged in a consumer fraud.  As I wrote 1½ years ago:

Massachusetts has the nation’s fiercest consumer protection act, Chapter 93A, which is a powerful weapon especially when deployed by a jurisgenic plaintiff; in addition, Just-A-Start depends on multiple different government agencies for the numerous programs it operates in Cambridge.  Both factors make the remaining claim potent, even though (as we’ll see) it’s leveled not at the entity, which has been removed from the litigation, but against two of its individual employees, James Sleeper and Alan LaBella, who handle Just-A-Start’s HIP lending program, which is widely regarded as innovative and successful.

Because this was the sole topic of the hearing, I doubt the accuracy or enforceability of this statement:

– and ordered the contractors to complete the list of repairs outlined by Graham’s defense lawyers.

That seems hard to credit, given these facts:


Remember, if Ron Burgundy says it, it must be true

In May 2006, Sleeper asked [architect Arthur] Choo to return, and Choo reportedly uncovered evidence he hadn’t initially seen, noting damage was “concealed behind the stairway and had not been visible to him on prior occasions.”

Importantly, neither Ms. Graham nor anybody else suggested holding the contractor, Third Generation Construction, liable under its warranty.  Evidently the building settlement observed behind a stairway was a pre-existing condition.

In a letter to Graham outlining his findings, Choo writes: “…there are several structural deficiencies. The building is not in danger of collapsing or anything [And obviously it has not, seven years later – Ed.], it’s just there are some spots that need to be repaired.”

In actual fact, the contractors’ warranties were long expired (they were standard one-year warranties), and Ms. Graham had taken no steps whatsoever to document her grievances – no digital photographs, no letters of complaint, no third-party verification, just her word and her tale of woe. 


Mayor Mobius will see you now

There are times when litigation becomes a campaign unto itself, with neither beginning nor end, just litigation for the sake of continuing to litigate, in pursuit of some abstract redress against a long-ago wrong, and it becomes impossible to admit it is over.

Graham said she was disappointed in the decision.

Mrs. Graham has been disappointed for ten years.

As of Tuesday morning, Oct. 14, Graham had not yet had the chance to speak to her lawyers about the case, nor had she read the decision. Still, Graham said she wasn’t satisfied with the judge’s ruling that the same contractors would be required to complete the work. 

“I don’t want them to come back here,” Graham said.

Then, Mrs. Graham, you are out of luck.

Nor will it be easy to find the same contractors, said Graham’s lawyer, Thomas Beauvais of the Melrose-based firm, Beauvais Legal.

I speculate Mr. Beauvais took the case on a pro-bono basis – at any rate, he’s the third or fourth lawyer Mrs. Graham has had, not to mention her informal advisor (Mr. Clarey) and the Cambridge City Council candidate (now councilor Dennis A. Benzan) lor who was ‘poised’ to enter the case on her behalf.


Mr. Beauvais speaking on a panel, Building your practice through pro-bono work

From his Web site; he’s also said

That he does pro-bono work, including at the Volunteer Lawyer’s Project Fair Debt Collection Clinic, is commendable.  And his perspective is clear: “In many areas, but particularly the creation of credit and collection debt, consumers get steamrolled, especially the poor. I believe they deserve a good lawyer.”

Since it’s been a decade since the work was first done in 2004, many of the contractors have disappeared, he said.

Third Generation Construction, which I believe did the work, appears to be still around and easy to locate.  But it is protected because the statute of limitations has long since expired – and Mrs. Graham never sued any contractor for anything.

“I’m a little disappointed in the sense that what ultimately ended up happening could have happened a long time ago and [Graham] could have had this result a long time ago had her former lawyer [Lawyers, Mr. Beauvais, lawyers – Ed.] done what they were supposed to do,” Beauvais said. “Graham suffered essentially 10 years of lost rent, and if this was going to be the result, we could have gotten that result in 2009 and she could have not withstood all of the stress of this suit.”


What am I going to do about this tragedy?

Ms. Graham at home, April, 2013

Actually, Mrs. Graham could have had that result in 2006, had she chosen to work with Just-A-Start instead of suing them.

Deborah Ruhe [Just-A-Start’s new executive director, hired in July, 2013 – Ed.]said she was satisfied with the resolution of the case.


Not ruing her decision to join Just-A-Start

“Obviously, there are no winners in situations such as these,” Ruhe said in a statement. “We hope for the best for Ms. Graham and her family.”

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Tragedy of the lords: Part 2, 7 out of 10 of the nation’s worst zip codes

October 30, 2014 | Affordable Housing, California, CEQA, Development, Housing, Los Angeles, Markets, NIMBY, Proposition 13, US News, Zoning | No comments 96 views

[Continued from yesterday's Part 1.]

By: David A. Smith


You’ve started using your incompetence as a weapon

I think I’ve underestimated you, Ned.

I don’t know why it took me so long.

You’ve started using your incompetence as a weapon.

– Assistant District Attorney Lowenstein, Body Heat

Yesterday’s criticism of Los Angeles’ epic failure of housing policy reported that the City of Angels has surpassed both New York and San Francisco for rental unaffordability, a distinction that would be scarcely believable unless one looked either at its aggressively obstruction anti-development environment, the hardship it imposes on individual working-class families, or the tribulations of developers seeking to create even minimal affordable housing.

Last year Takao Suzuki, a developer –

The Economist is imprecise in an unhelpful way; Mr. Suzuki isn’t an individual developer, he’s the director of development for a 35-year-old non-profit community development corporation, Little Tokyo Service Center,


It takes an army to develop even a small property

– finished a 45-unit affordable housing complex in LA’s Historic Filipinotown.


Welcome to America!  Good luck affording the rent!

The five-storey building was originally slated to contain 70 units, but after years of knocking heads with NIMBYists, Mr Suzuki agreed to build fewer.  

That’s 25 people kept homeless by the neighbors.


Home is Little Tokyo, but not for 25 people made homeless by NIMBYism

He received more than 2,000 applications for 45 subsidized apartments.

Readers would think I had learned by now not to write about these anti-development efforts, because they are drearily the same. 

“We had no choice. NIMBYism has been institutionalized by the zoning code in Los Angeles,” says Mr Suzuki.

The faceless people who oppose take no responsibility for proposing; they are uninterested in the consequences of their refusals; they take no risks in being oppositionist – they are not forced to post bonds, or pay damages, or be held personally accountable. 

A report [How Los Angeles County’s Housing Market is Failing to Meet the Needs of Low-Income Families, May, 2014; red font – Ed.] by the California Housing Partnership Corp, a non-profit, claims that Los Angeles County faces the greatest shortage of affordable housing in California.  

In fact, CHPC’s report is full of damning statistics:

• There is a shortfall of 490,340 homes affordable and available to Los Angeles County’s very low- income (VLI) and extremely low-income (ELI) households.


If you’re poor, good luck finding affordable housing in Los Angeles County

• There are currently 39,400 men, women and children facing homelessness in LA County, and one in nine homeless people is a veteran.

Thanks for making 25 veterans homeless, opponents of Little Tokyo’s property.

CHPC also confirmed what the UCLA study reported: the problem isn’t principally falling incomes, it’s rising rents. 

• Median rents in Los Angeles County increased by 25% between 2000 and 2012, while the median income declined by 9%.

Evidently Los Angeles County is becoming poorer even as its housing is becoming less affordable – suggesting, if my logic is correct, that the middle class is leaving the county and moving elsewhere, possibly to the Inland Empire, possibly out of state. 

People like the Marroquins will be tempted to leave town. Mr Marroquin says he has considered Riverside County, part of the Inland Empire, where jobs are scarce but rents are lower. “It can’t be worse than here,” he says.


Go east, young man; go east Blythely

Manhattan is experiencing a similar hollowing out in Manhattan, where the very rich live very well, and the very poor cling to public housing – with an inexcusably bad landlord (that Mayor de Blasio seems not to care about), physically obsolete, decaying, and decrepit housing. 

The Los Angeles section 8 voucher program waiting list has been closed for almost a decade.

New York’s middle class seems to be exercising its mobility of moving out of the borough, out of the city, or out of the state.

Meanwhile, Los Angeles’s housing shortage gets progressively worse:

According to the Los Angeles Department of City Planning Housing Needs Assessment, the city needs to produce roughly 5,300 units per year that are affordable to moderate-income households or below (Los Angeles Department of City Planning, 2013).  Los Angeles has instead averaged roughly 1,100 units per year since 2006. 

Los Angeles is producing one-fifth of the affordable housing it needs just to stay level with the current unacceptable situation.

Since 2000, 143,000 rental units that had been affordable to those making less than $44,000 a year became unaffordable.

Los Angeles’s shortage of affordable housing isn’t just making its homeless problem worse; it’s also driving out of the county the very people that those media barons will need to tend their gardens, teach their children, deliver their kale-and-arugula salads, and rush their grandmothers to the hospital.


The above chart shows that if you’re a secretary, medical assistant, preschool teacher, or EMT, you’re living with roommates; and if you’re in retail or waiting tables (while hoping to be discovered in the movies), you’re living with at least two roommates, possibly in informal or illegal overcrowding.


Thanks for the housing, Los Angeles !

• Los Angeles County has seven of the ten zip codes with the worst housing overcrowding in the nation and 64 zip codes that are in the worst half percent for housing overcrowding.

Any way one slices it, Los Angeles has failed spectacularly, and while the CHPC labels this a market failure, that’s a misnomer – this is government failure that obstructs the market from doing what the market passionately wants to do, build more housing.

The city needs nearly another half a million homes with below-market rents, it reckons.


Amazing what 45 years of choking development can do, isn’t it?

Even more than a government failure, it’s a leadership failure, and the failure resides in the governor’s office – because the local thickets were created by state laws (CEQA and Proposition 13) and have to be undone at the state level before they can be reversed at the local level. 

It may have been too much to ask Governor Schwarzenegger, who never cared about housing; or Governor Gray, who never cared about anyone else; nor their predecessors.  But Governor Jerry Brown must know that housing is critical to reversing California’s decline, as he’s had a front-row seat for it:


Being sworn in as governor, 1975


Re-elected: Jerry Brown being sworn in as governor, 1979

Jerry Brown Swore In As Governor Of California

Third time the charm?  Jerry Brown being sworn in, 2011

Governor Brown has to lead, with a drastic restructuring of CEQA and the enactment of statewide inclusionary upzoning that trumps local obstructionist tactics.  He has to commit substantial political capital to it, and he has to remain steadfast.  As matters now stand, Los Angeles is doomed to increasing dysfunctionality that it forged, link by link and yard by yard, over the last four and a half decades.


“I wear the market I forged in life … I made it law by law, year by year; I girded it on of my own free will, and of my own free will I drove it.”

Here’s you’ve been doing it, Los Angeles:

You down-zone the entire city, and leave that unchanged even as America’s population more than doubles.

You fiercely obstruct any form of development, regardless of need or suitability.

You whittle down any development that cannot be prevented and saddle the survivors with additional unfunded-mandate cost obligations.


Twenty-five years’ worth of transit, and you still can’t get to LAX

You reject public transportation in favor of continuing infatuation with the automobile.

And you wonder why your city is unaffordable, and on its way to becoming unmanageable.


You think this is bad?

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Tragedy of the lords: Part 1, 47% of gross income for rent

October 29, 2014 | Affordable Housing, California, CEQA, Development, Housing, Los Angeles, Markets, NIMBY, Proposition 13, US News, Zoning | No comments 133 views

By: David A. Smith

You better take me up on this quick.

In another forty-five minutes I’m going to give up and walk away.

– Ned Racine, Body Heat


In about forty-five years I’m going to give up

Take something for granted long enough, pile it with ever greater burdens, obstruct it with ever longer obstacles, and eventually it’ll give up and walk away – and in Los Angeles’s case, though the process took not forty-five minutes but forty-five years, Angelenos are now astonished to discover that for all the putative inclusiveness of their political and cultural lords, in addition to being the homelessness capital of America, they also have America’s least affordable rental housing stock. 


Everything is beautiful, and nothing hurts

LA storeys

Why homes even in the unfashionable parts of LA cost so much

As reported in The Economist (August 23, 2014):

A new study by the University of California, Los Angeles Impacts of the Widening Divide: Los Angeles at the Forefront of the Rent Burden Crisis, September, 2014, pdf; green font), concludes that LA has the least affordable rental homes in America, and other reports rate California as the worst state both for renters and mortgage-payers (see map).


It takes some doing to surpass New Jersey and New York

The study, by Rosalie Ray, Paul Ong, and Silvia Jimenez, spent most of its effort seeking the reasons for the widening cost-to-income gap and found the following:

The increase in burden over time has largely been the result of increasing rents rather than decreasing incomes, a finding confirmed by Quigley and Raphael (2004). Incomes increased across all quintiles from 1970 to 2009-2011 in Los Angeles, but rents increased far faster.  As a result, severe rent burdens have become a problem that affects not only the bottom quintile, which has been severely burdened for over 40 years, but increasingly the middle class as well.

Most people who rent do so for purely economic reasons: renters are poorer than homeowners, as shown in the UCLA study figure below.


From the UCLA study: the poorer you are, the more certain it is that you rent

As the UCLA figure above shows, over 80% of the top income quintile own their homes; and just under 20% of the bottom quintile do.  Ownership is an effect of income, not a cause: renting is cheaper than owning mainly because people who rent consume fewer square feet of living area than people who own.

Jose Marroquin lives with his mother, wife and four children in a tiny apartment in a rough part of town. It costs the seven of them $1,080 a month: about two-thirds of their cash income, most of which comes from Mr Marroquin’s job as a forklift driver.

Over and over, we see the connection between jobs and housing; without inexpensive places where jobs can go to sleep at night, jobs must choose among inconvenient housing, unacceptable housing, or unaffordable housing.

Steep rents for tiny spaces are the norm in dense cities like New York or San Francisco. But Mr Marroquin lives in Los Angeles, a city known for spacious homes and sprawl. Even in South Central LA, which is poor and gang-plagued, renting a place to live is expensive.

People will bear great risks for their families and their children – and when a bad neighborhood is near good jobs, people have to choose their poison:


Remember, we’ll live until we die!

The UCLA study reports that tenants in LA spend on average 47% of their gross income on rent—a higher share than in any other city.  (Academics typically deem rent “unaffordable” if it eats up more than 30% of a household’s income.)

The rent burden is further divided into moderate (30-50% of income for rent) and severe (more than 50% of income for rent).  By either measure, LA wins – or loses, depending on your perspective.


Not only are more Angelenos rent-burdened, more of them are severely rent-burdened

Median rents in LA have risen more than 25% since 2000, while median household income has fallen slightly. New York and San Francisco have slightly higher rents but much higher incomes: the annual median in LA is $57,000 to San Francisco’s $75,000 and New York’s $64,000.

These misleading ‘comparable cities’ make Los Angeles look less awful than it is:

New York is vast, like Los Angeles, but is geographically divided into extremely high density mixed-use (basically, most of Manhattan), while the outer boroughs (Staten Island, Queens, and the Bronx) are much more strongly residential, including homeownership.

San Francisco is geographically circumscribed – by water on three sides, and with inner residential suburbs to its south – and it has the well-meaning but idiotic sunset zoning that’s a glass ceiling on development.

Moreover, both cities (New York and San Francisco) have confiscatory rent control (unlike Los Angeles’s, which is quite mild) that has choked off new rental production.  LA’s rental-production shortage is entirely of its own making:

LA’s deep-rooted culture of NIMBYism makes matters worse.

Angelenos are perfectly happy to build big pools in their back yards; not so interested in building in-law apartments.


Nice big pool you’ve got here

If developers could build more high-rise or high-density housing [If they could build any kind of rental housing – Ed.], rents would fall.

Supply and demand 101!

But thanks to restrictive zoning laws, they find this extremely hard.  Only 24% of San Francisco and 25% of New York City is zoned exclusively for one- and two-family homes, but in Los Angeles, more than 78% of the city’s residential land is currently zoned for single-family dwellings, according to the LA Department of City Planning.

Los Angeles’s zoning is anachronistic:

The zoning code hasn’t changed much since the 1940s.

Actually, in seven decades zoning and land use in Los Angeles have only got worse:

Some of California’s green rules drive up rents—and hurt the environment, too. The California Environmental Quality Act (CEQA), signed by Governor Ronald Reagan in 1970, allows almost anyone to sue to block any development, and is used by the slow-growth lobby to thwart vertical expansion.

“The irony is that CEQA is now preventing us from building high-rises near public transit, which would improve the environmental quality by allowing people to walk more and not use their cars,” says Richard Green of the University of Southern California.

And CEQA was followed in 1978 by Proposition 13, the worst piece of American land use legislation in half a century, born out of voters’ frustration with the state’s rising cost and governmental expansion – but in a bitter irony, Howard Jarvis’ attempted reining in of government became a neck tourniquet for California’s housing growth. 


Four slugs from the legislature

As-of-right zoning is now dead in California, and because of this, the cost of building anything is two or three times what it would be in a rational market.  It’s excessive (and as far as I know nobody’s ever calculated it fully) because it includes:

Cost increases for gold-plating the property to satisfy green, sustainability, architectural, historica, and other NIMBYite fetishes.

Lost-opportunity-cost of the years (literally) of approval processes.

Homes unbuilt, even though the land and infrastructure would readily support them, sacrificed to propitiate the neighbors.

Developers seeking to build in LA today find that they have to scale back their projects to get them built at all. Construction began on Ponte Vista, a cluster of 676 homes near the Port of LA, earlier this year. The original plans called for three times as many units, but the project was cut back after neighbors protested about the extra traffic it would bring.

There’s 1,300 people made or kept under-housed, overcharged, or homeless by neighbors worried about traffic.

In February a judge struck down what he called a “fatally flawed” plan to build taller, denser buildings in some parts of Hollywood, after community groups sued under CEQA, complaining that the plan would “Manhattanise” Hollywood.

I’m not even going to research that decision; it all stems from the original sin of CEQA, and it will take more than a few isolated developments to redeem Los Angeles.


Pick it, it’s good for the environmental quality

[Continued tomorrow in Part 2.]

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Milton’s paradise lost? Part 8: No matter what we come up with

October 28, 2014 | Affordable Housing, Boston, Chapter 40B, Cities, Development, Homeownership, Housing, Inclusionary zoning, Milton, Rental, Zoning | No comments 77 views

[Continued from yesterday's Part 7 and the preceding Part 1, Part 2, Part 3, Part 4, Part 5, and Part 6.]

By: David A. Smith

“Heaven is for thee too high
To know what passes there; be lowly wise.”
John Milton, Paradise Lost

As we reach the end of this multi-part post – unlike Milton’s planning board, my blog posts have a definite ending, guaranteed before one begins reading them, and my posts don’t change the rules halfway through – the Connellys, owners of the derelict and boarded-up former Hendrie’s Ice Cream site, having survived the opprobrium of taking down a disease oak tree despite the town getting a second arborist to opine that it could have been saved, had quitted the Milton Planning Board process and taken their proposal to the state’s Department of Housing and Community Development (DHCD) for Chapter 40B override approval.

Sources used in this post

Milton’s 2002 zoning map; pdf

Karen Sunnarborg housing study of Milton (February, 2006, pdf; green font)

Chapter 40B fact sheet, 2007; pdf

Boston Globe (June 21, 2012; deep purple font)

Massachusetts subsidized housing inventory (April, 2013; caramel font)

Boston Globe (March 22, 2013; powder-blue font)

MyTownMatters blog post (April 15, 2013; midnight blue font)

Canton Citizen (June 27, 2013; mumble font)

Boston Globe (August 21, 2013; olive font)

Boston Globe (October 31, 2013; pink font)

Canton Citizen, (November 14, 2013; red font)

Boston Globe (April 27, 2014; buff blue font)

Boston Globe (July 24, 2014; robin’s-egg-blue font)

Town of Milton draft housing production plan, September 25, 2014; pdf, orange font)

Boston Globe (September 11, 2014)

CHAPA’s Chapter 40B fact sheet, pdf

The Connellys, like Mr. Hamilton and the Hollands before them, had concluded that the town was never going to say Yes, and exited the show trial.


I wish I could exit the show trial

Despite several meetings between town officials and the developers in hopes of fixing the mixed-use proposal, the Connellys applied in 2013 for eligibility to build an affordable complex, where 25% of the units would be deemed affordable under state law.

The state gave the green light in June for the project, which would set the development solely on the Connellys’ side of the almost 1-acre property, most of which is owned by the Connellys.

Milton planning officials vehemently opposed the project’s eligibility in an April letter to the state, saying the proposed complex is too large and would negatively affect traffic, public safety, and town services.


Proposed layout for the Hendrie’s site

Translation: If it doesn’t have parking, it’ll make traffic worse!  But if you build parking spaces, that’ll attract cars and make traffic worse!

Jerry Connelly said he and his son turned to proposing an affordable complex after the town denied their mixed-use project.

“We felt like the only option left was 40B,” Connelly said. “I think it would be very good for the town — and the town needs it.”

Connelly said he thought concerns over the size of the development and traffic proved “a weak argument,” noting that the development will have more than 70 parking spots and that commercial space would have exacerbated traffic more than a residential building.

“In the town of Milton, some people don’t like anything you do,” Connelly said. “That’s the way we’ve been treated. We’ve been trying to do this the past seven or eight years, and no matter what we come up with, they say they don’t like it.”

Finally, under the hammer of a Chapter 40B approval that they cannot stop, the town officials are trying to persuade the people they’ve stonewalled for eight years to trust them just this once:

Officials are now trying to negotiate with the Connellys again to consider building a mixed-use development with fewer residential units –

Now they need the Connellys, but the Connellys have concluded that years of obstruction, delay, and refusal are not a good basis for negotiations.

– but the developers seem determined to move forward with the affordable-housing proposal, Clark said after the meeting.

Can you blame them?


Yes, I’ve lied every time up to now …

But this time I’m not lying!

8. The Day of Judgment?

Despite its endless process – or perhaps because of its endless process – the Town of Milton has not approved its Housing Production Plan.


More likely than Milton approving its Housing Production Plan

For the plan to be certified, the issue isn’t whether the town actually could build 48 apartments of affordable housing in a year, but rather, whether the plan could prove it had specified sites that were actually moving forward.

Sunnarborg agreed that the number seemed “ambitious.”

Milton’s ulterior challenge is to craft a plan that the state will buy … but that won’t actually require Milton to do anything.  This is especially challenging because no one can admit in public that this is their real goal.

“In a five-year plan, I’d say it would be lucky if you get one year of certification,” she said.

The point to be judged by the state is not private-sector capacity, but public-sector commitment … and the town has been making clear, with many options and over many years, that when it comes down to action, the town doesn’t want affordable housing, and doesn’t want development, and simply wants to buy more time by whatever pieces of paper or other smokescreens it can muster.


“We don’t want ‘those people’ in our to-own

Ignore Milton’s words, which are earnest, reasoned, nuanced, possibly even well meant.  Judge the town by its actions, which are consistent and effective: anti-affordable housing, anti-transportation, anti-rental, anti-density, anti-growth, anti-development, anti-change.


By pushing affordable housing into Boston, Dedham, and Quincy, Milton has prospered; house prices are rising rapidly, there is no development, and the good burghers are just having a grand old time.


Let’s debate some more, shall we?

Board of Selectmen and Planning Board members will meet again at an undetermined date later this month [September – Ed.] to continue discussing the issue. For more information, visit

Milton is perfectly willing to have affordable housing, so long as the people who live in that housing don’t drive, don’t park, don’t use public transport, and so long as the property won’t be built, won’t be expanded, and won’t be renovated.  And it’s perfectly willing to sign up proposals that go nowhere.


Milton’s old poor farm, on 34 acres, signed up in July, 2011, to be sold to developer Pulte HKomes

and then two and a half years pass … and the environmentalists come out

And Milton is perfectly willing to have affordable housing on its terms, and those terms are what Milton decides those terms are, and allow Milton to change its terms whenever it decides that the previously offered terms might bind Milton to do something that Milton now decides it doesn’t want to do.

And for goodness’ sake, don’t go to the state to override Milton!

This is a town with room for one and a half golf courses, totaling roughly 160 acres (a quarter of a square mile apiece), a working farm, vast areas of undeveloped space, a town that abuts populous Boston and most of whose residents, I feel sure, work somewhere else, many of them in populous Boston … and somehow it can’t find affordable housing.

The Planning Board is scheduled to review the proposal for the Hendrie’s property at 131 Eliot St. during its meeting next Thursday.

For a developer in Milton, it’s always “wait until next Thursday.” 

Time for the state’s Judgment Day.


I’ve had enough of your excuses

“Better to reign in Hell, than to serve in Heaven.”
John Milton, Paradise Lost


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Milton’s paradise lost? Part 7: Boarded up for years

October 27, 2014 | Affordable Housing, Boston, Chapter 40B, Cities, Development, Homeownership, Housing, Inclusionary zoning, Milton, Rental, Zoning | No comments 168 views

[Continued from Friday's Part 6 and the preceding Part 1, Part 2, Part 3, Part 4, and Part 5.]

By: David A. Smith

“The mind is its own place, and in itself
Can make a heav’n of hell, a hell of heav’n.”
John Milton, Paradise Lost

The crowbar or-else of Chapter 40B, as we have seen from previous installments in this multi-part post, is the ability to have a higher density development approved by the state, over the locality’s objections, and to place this crowbar in the hands not of local elected officials or even state elected officials, by private parties – a land seller and a housing developer – who may be from out of town and hence who do not give a rodent’s rear for local sensibilities.


Where the Texas developers chow down

Sources used in this post

Milton’s 2002 zoning map; pdf

Karen Sunnarborg housing study of Milton (February, 2006, pdf; green font)

Chapter 40B fact sheet, 2007; pdf

Boston Globe (June 21, 2012; deep purple font)

Massachusetts subsidized housing inventory (April, 2013; caramel font)

Boston Globe (March 22, 2013; powder-blue font)

MyTownMatters blog post (April 15, 2013; midnight blue font)

Canton Citizen (June 27, 2013; mumble font)

Boston Globe (August 21, 2013; olive font)

Boston Globe (October 31, 2013; pink font)

Canton Citizen, (November 14, 2013; red font)

Boston Globe (April 27, 2014; buff blue font)

Boston Globe (July 24, 2014; robin’s-egg-blue font)

Town of Milton draft housing production plan, September 25, 2014; pdf, orange font)

Boston Globe (September 11, 2014)

CHAPA’s Chapter 40B fact sheet, pdf

That’s critical, because as we saw yesterday, absent Chapter 40B, the Town of Milton will say no to large greenfield developments close to arterial roads, and will say no to smaller townhouse development in lieu of even smaller single-family manses.

Now we come to the piece de resistance, the finale of rejections, the case that brings it all together:


We always save the best for last

7.C. The derelict commercial property

So far we’ve established that Milton doesn’t like one big property that would really make a difference; and it didn’t like two smaller greenfield properties that would have each been worth a year-plus of required production; and it didn’t like the idea of three homes on four-acre lots – so it must like adaptive reuse or derelict and boarded-up buildings in the commercial area.

Mustn’t it?

Developers are moving forward with the 57-unit Chapter 40B project at the former Hendrie’s Ice Cream site at 131 Eliot St. –

To me, the Hendrie’s site is the smoking gun, because if Milton is going to reject the Hendrie’s site, then it will reject anything:


Fitted into Milton’s processors

The existing building which has been boarded up for years. 

The site was the original home of Bent’s Cookie Co., famous for the hardtack it supplied Civil War troops and for its water crackers.  In 1930, Hendrie’s opened an ice cream factory there, and a decade later added its popular Dairy Bar, according to the Milton Historical Society.

Photographs across the decades show a building slowly and steadily expanding, and also shifting from a residential look to a boxy commercial configuration.

Customers often would eat their treats under the shade of the massive oak tree.

Hendrie’s has been gone for decades, and Connelly’s original plan — calling for a building with 38 condominiums and about 7,500 square feet of commercial space, along with 98 parking spaces — was heralded by town officials as a welcome addition to the Central Avenue village business district. 

Heralded – but somehow, not approved.

It will reserve 15 of the 57 for affordable housing.

[That assumes the Chapter 40B proposal is approved by the State; in its pending housing action plan, the Town counts on 44 rental apartments, not 57, on that site … and if the developer were to withdraw its Chapter 40B petition, there’s nothing to bind the town to approve those 44. – Ed.]


131 Eliot Street, Milton, today

A big empty use of location

Here thus are 15 ‘free’ apartments of affordable housing (meaning no town resources required), to be built on a site that is currently unused.


The Hendrie’s site, circa 1955: note single-story ice cream shop and three-story apartment block behind

– following years of difficult negotiations with the town.

I’ve previously documented the death of as-of-right zoning, and the development of veto-by-endless-process; Milton is Exhibit A for this.  Just listen to what these property owners have experienced and endured:

Father-son developer duo Jerry and Steve Connelly negotiated a proposal with town officials from 2010 to 2012 to build some 30 housing units plus commercial space on the property, where the Connellys own one portion and the town owns the other. But Planning Board officials denied the special permit in December 2012 because they thought the project was too big and did not meet required zoning setbacks.


Hendrie’s site in the 1970s: now two stories, apartments still behind

The proposed Hendrie’s development has a planning saga stretching back at least four years (Boston Globe (June 21, 2012; deep purple font):

It’s been more than a year since developer Steve Connelly took down the 200-year-old oak tree in front of the long-vacant Hendrie’s ice cream factory on Eliot Street, saying it was too decayed to survive construction on the site. The tree’s gone, the factory’s still boarded up, and there’s still no sign of the condominium and commercial building that Connelly wants to put up there. He first applied to the Planning Board for a special permit in July 2010. 

But the board’s new chairman, Alexander Whiteside, says he’s confident the permit process is nearing an end.

“It’s gone on long enough, and it really is time to get that building taken down and something better in its place,” Whiteside said last week.

In print, Mr. Whiteside is always the soul of sweet reason, but the entity over which he presides can never find the Y word in its vocabulary, no matter how it tries.


Have you been to Planning Board hearings, Lord Byron?

Some residents who support the development have written to the Planning Board, asking it to approve the permit so the new complex can go up and the town can start collecting more tax revenue from the site.  “I drive by it every day, and anything is better that what is there now,” said Eric Seamans, who was among those writing to the Planning Board. “It’s mind-boggling that they can’t come to an agreement.” 

But others have urged the Planning Board not to rush the process.

After all, one can always find a new issue to worry about, a new study to order and then wait for.

The Columbine Cliff Neighborhood Association, which [claims to] represent about 900 households in the area, sent a letter to the board last month supporting the decision to keep its review open “until all design issues are resolved.”  

Having condemned the property to struldbrug dereliction, the neighbors are now worried

Peter Mullin, a Town Meeting member from the area, said people –

Whenever someone references concerns of unnamed others, a good auto-replace is to presume that he’s speaking for himself, and that the concerns he’s imputing to those unnamed others are in fact not the real concerns.

– also are concerned about the safety of the existing building.  An engineering study performed for the developer found that the building was safe, and the town is awaiting results of an independent engineering study, according to Town Administrator Kevin Mearn.  “We did a site walk with the fire chief, building inspector, and engineer, and I don’t think there’s any real immediate issue with public safety,” Mearn said. “But the town wants to do its due diligence.” 

Translation: Another delay that can be justified on the grounds of checking the previously checked engineering study.


Mr. Whiteside (facing us) at a planning board meeting

“I think that things are moving forward. Not everyone will be totally happy, but certainly not everyone will be totally unhappy. I would hope that by the end of July, they would have a permitted project.”

Mr. Whiteside’s confidence was misplaced – so the developers moved forward under Chapter 40B, whereupon the town pulled this trick:

Milton Town Meeting members have decided to change the guidelines for the sale of the dilapidated Hendrie’s site, as a way of gaining leverage in negotiations with the person who owns most of the building.


It never gets old, does it?

The article, which was only briefly discussed Tuesday night before it was approved, authorizes selectmen to sell the town-owned portion of the building and land to whoever is willing to pay for it.

This is a delicious hypocrisy: having refused all attempts to develop the property, the town now envisions they can sell their chunk of it to somebody else who can be lured into thinking it can be developed—so they’ll outsource ownership while retaining their veto.

The vote effectively reverses the language of a 2007 Town Meeting vote, which authorized selling those assets only to Jerry Connelly and his son Steven Connelly, who own most of the building.

“This article is important to providing the selectmen with the flexibility they need to transfer this property and develop the whole site at the former Hendrie’s location,” Peter Mullin, a Precinct 2 Town Meeting member, said Tuesday.

Translation: We didn’t like the Chapter 40B project, so we’ve decided to sabotage it and then sabotage whoever else comes forward.


So we lied again; so vat?

The vote could place in jeopardy a recently reached agreement between the town and the developer to buy the town land for a residential/commercial development. Yet some town officials feel they need a backup plan, given the past controversy between the two parties.

Translation: As the Chapter 40B property is going forward, we need a backup plan to stop it another way.


[Continued tomorrow in Part 8.]


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