Proposed 40B at Shingle Place Hill
Please support MECT so that we may continue to bring our consultants and legal experts to the front line to work with the town of Manchester now that this decision has been appealed by the applicant. The Manchester Zoning Board of Appeals officially filed the denial decision August 30, 2022. Read their well-written and strong letter here: ZBA Comprehensive Permit Denial Letter
This is one small step for a town. Let’s make it one giant leap for the community and the environment, together!
We look forward to defending this decision with the town of Manchester. MECT believes the proposed 40B at Shingle Place Hill will cause irreparable harm to the environment, the wildlife habitat, and the conservation land shared by so many people.
At the final Public Hearing on July 27, MECT urged the Zoning Board of Appeals to DENY the permit:
Approval + Conditions – Conditions = Approval
“While conventional wisdom, Monday morning quarterbacks or aggregate statistics might suggest that you should Approve the application with many many many conditions, we at MECT are urging you toDENY the waivers and DENY the comprehensive permit.Check the recent trends and recently upheld decisions where the Housing Appeals Committee (HAC) has struck down a municipality’s conditions because they rendered the already uneconomic project significantly more uneconomic.
In this case the geography, topography and wetland constraints have already made any further changes uneconomic.
We’ve done our best to educate the public and prepare their understanding of our call for denial. The rest is up to you. Only you, the ZBA, can make that decision.
Conditions, in my opinion, might be considered the final polish on an already acceptable plan- some fine tuning or adjustment to meet the community’s needs better this plan needs a complete rethinking and shrinking, not a final polishing.
An Approval with Conditions, minus those conditions is reduced to simply an Approval. Is that what you intend?”
(From ZBA Public Hearing July 27 comments by MECT Executive Director)
On May 25, our attorney Dan Hill wrote to the Zoning Board of Appeals with this explanation of why many of the conditions that the applicant was suggesting, or other conditions that the board might consider would be struck down by the HAC:
“Deferring review of the adequacy of necessary infrastructure until after a zoning permit is issued may be acceptable for conventional zoning projects, but it does not work under Chapter 40B. The law is clear under Chapter 40B that zoning boards cannot subject a developer to a post-permit review and approval process, the reasoning being that it would frustrate the “comprehensive” permitting function of the statute. Specifically, the state Housing Appeals Committee (“HAC”), which hears developer appeals from local comprehensive permit decisions, has consistently held that conditions that expose the applicant to future discretionary decisions by other boards and officials are prohibited. HD/MW Randolph, LLC v. Milton ZBA, HAC No. 2015-03, 2018 MA Housing App. LEXIS 4, *116-117, citing, LeBlanc v. Amesbury, HAC No. 2006-08, at p. 23 (Sept. 27, 2017 Ruling) (“improper conditions subsequent are ‘conditions that reserve for subsequent review matters that should have been resolved by the Board during the comprehensive permit proceeding. Such conditions include, for example, those requiring new test results or submissions for peer review, and those which may lead to disapproval of an aspect of a development project.’”). The HAC has been particularly vigilant lately in scrubbing such conditions from locally-approved comprehensive permits. See, e.g., Weiss Farm Apartments, LLC v. Stoneham ZBA, HAC No. 2014-10, p. 76, 2021 MA HOUSING APP. LEXIS 5 (Mar. 15, 2021) (“this condition also constitutes an improper condition subsequent, as it allows the Board to make a subsequent decision regarding whether the parcel is suitable for development. See Milton, No. 2015-13, slip op. at 56, n.33”).
The Board should not assume that the Applicant will consent to conditions imposed on the permit that give the Board or other municipal officials the authority to deny approvals that would have the effect of stalling or blocking the Project. In the event of an appeal from the Board’s permit (which seems likely), the Applicant will almost certainly challenge such conditions, and the HAC will almost certainly strike those conditions. “
Our concern is that the ZBA may think it’s making a smart decision strategically by not denying but rather approving a project with conditions, but in fact, most of the conditions the ZBA will impose will likely be stricken by the HAC assuming there’s an appeal. The biggest category of problematic conditions is “conditions subsequent,” where the ZBA requires the developer to get a subsequent review or approval for some design detail of the project (like sewer). A close second category of problematic conditions are those conditions that the developer will argue are treating the 40B project differently than non-40B projects. This usually happens when there’s a condition that is not tied directly to an existing bylaw or regulation.
In an appeal of a “Approval with Conditions”, the applicant is not bound to any conditions that he has previously agreed to or suggested to the ZBA.
Where is Shingle Place Hill?
Shingle Place Hill is located just north of the Route 128 Exit 50 interchange on School Street in Manchester. The forested knoll is situated between the Manchester-Essex Conservation Area and The Monoliths reservation. The entrance to the proposed project is opposite Atwater Avenue and Utopia Farms on School Street. If you are approaching the area from Essex, Southern Ave turns into School Street as you pass The Monoliths parking area. Stop by and see what the area looks like in its undeveloped state today, from the street and from the trails. Let’s keep it this way.
How does this fit in the context of climate change?
“Heat Emergency. Cooling centers. Splash pads. Newspapers, digital feeds, and news broadcasts
were full of these terms and images this week. This urban-center vocabulary is already headed to
small towns like Manchester-by-the-Sea. It is ironic that the area once renowned as the summer
escape from the heat of Boston, is under threat of becoming a heat sink. I find it ironic that as
Boston prepares heat resilience solutions for hotter summers, with a particular focus on Boston’s
environmental justice neighborhoods, which include planting trees, Manchester is facing a plan
to cut down 7 acres of trees, to build affordable housing which would be surrounded by massive
heat-absorbing retaining walls. We already have the thing that IS an asset, that IS part of smart
development: we have acres of forest that cools FOR us, wherever we have that, we need to
leave it untouched because it will become more and more important for climate resiliency.”
Can you even imagine this building, here, in Manchester-by-the-Sea?
According to the town’s Open Space and Recreation Plan (draft 2021), less than 2% of housing inventory in Manchester-by-the-Sea is in units with 10 or more dwelling units. The majority of housing is single-family dwellings (71%). Most residents seem to agree that Manchester needs more housing options and more affordable housing. Most residents also seem to agree that the green space in this community contributes to the character and small-town feel. A 136-unit rental apartment project does not fit the small-town feel that Manchester has created over generations, and is a huge change for a town with only a few complexes with more than 10 units. Only 34 of the 136 units will be “affordable” rental units after clear-cutting 7.2 acres of forest nestled between two prominent conservation areas.
We hired an architectural firm to produce accurate renderings using the applicant’s own technical drawings. These renderings show how the building would appear from natural vantage points at a 5’6″ eye view. Here are the “Existing” vs “Proposed” views. The applicant responded that we did not have the correct materials and color, and we didn’t include the plantings. We do not feel that these objections to our renderings substantially impact the visual information that the renderings provide. The applicant was asked to provide 4 season views from a range of viewpoints. We haven’t seen them – have you? Help us ensure that our architect’s renderings do not become a “Before” and “After” view of Manchester:
Existing and Proposed Views from inside Utopia Farm’s parking area near School Street at Atwater Avenue
Existing and Proposed Views from Old School Street entrance to our Wilderness Conservation Area
Existing and Proposed Views from School Street (southbound) at the Wilderness Conservation Area Parking lot
Existing and Proposed Views from the boardwalk over Cedar Swamp in the Wilderness Conservation area
In a prior letter to the Manchester Select Board, we wrote: “This project fails to integrate with the “typology”, as defined by MassHousing, that is, the massing and density patterns in the immediately abutting and wider surrounding areas of upper School Street.” This is a criterion evaluated by MassHousing, and we hope they will reconsider the appropriateness of this building in this location if the case is brought to the Housing Appeals Committee.
Does this building rendering on the left “fit” the massing and density of the neighborhood?
Development of this particular parcel, situated next to Cedar Swamp at the headwaters of Sawmill Brook threatens natural resources that cannot ever be recovered.
Development also threatens public enjoyment of a very popular entrance to hiking trails. People from Manchester, Essex, and other towns flock to this entrance to enjoy the quiet and peacefulness, to birdwatch and scan for the changes in the season, to walk dogs and to commune with their friends and community. This area is vital to the physical and emotional health of the community, as was recently driven home by the pandemic conditions.
The Manchester Wetlands Bylaw and Vernal Pools
Since 1987, Manchester has adopted and amended a local wetland bylaw to provide increased protection of wetland resources, keeping abreast of scientific understanding of the value of these resources. The original bylaws were amended in 1999, replaced in their entirety in 2010, and amended again in 2014. Manchester has invested a significant amount of time in researching and modifying these bylaws. Just like Manchester, a majority of the cities and towns in Massachusetts have their own wetlands ordinances/bylaws that provide more protections to wetlands than does the state law under the Massachusetts Wetlands Protection Act. The state and local wetlands laws are administered together by the local conservation commission. Work must meet the stricter of the state and local requirements. Home rules, or customized local bylaws that are approved by the state attorney general’s office, allow municipalities to customize protection specific to their individual topography, hydrology, and geology needs. Some cities and towns also have wetlands protection requirements in their zoning ordinances/bylaws too.
The applicant has requested waivers ( 19 or more) from the Manchester Wetland Bylaws – many of these involve vernal pool “buffers” for pools adjacent to the development site on conservation property. The applicant has repeatedly stated that he cannot build the project without these waivers, and has stipulated that the Housing Appeals Committee will overturn a denial of these waivers. The local wetland bylaw indicates that the town believes that work within 200’ of a vernal pool is presumed to have a harmful impact on the vernal pool, and it’s the Applicant’s responsibility to prove otherwise. These waiver requests cover a major portion of the proposed development, and no development, other than a 40B, would claim to be exempt from this bylaw. The truth is that 18% of the actual building is in the vernal pool buffer zone, along with 40% of the roadway, 50% of the sidewalk, and 52% of the water treatment areas. These are not insignificant. We believe the Zoning Board should deny the request for ALL wetland waivers that address the vernal pool buffers and the upland habitat.
Our experts have determined that the proposed development would have a measurable impact on the amount of water flowing into the vernal pools, which may result in them not holding water at all, or for the required time period to support the amphibians and other life that they support.
The Wildlife Habitat Study
On February 15, 2022, the Manchester Conservation Commission unanimously voted to require the applicant to conduct a wildlife study in accordance with their bylaw.
The Wildlife Habitat Study is rich on boiler plate details – generic information, and light on actual specific details on the wildlife and habitat for the surrounding uplands and wetlands. It mentions roughly 13 species of birds, 8 species of mammals, 1 snake, and was conducted during a short window of time. A walk with an Audubon bird specialist can yield 3 or 4 times as many different bird species in half an hour. Approx 10 trees and shrubs are mentioned in the study – while a scientific vascular plant study documented 300 species of plants in the surrounding wetland and woodlands.
The Wildlife Habitat Assessment includes numerous unfounded conclusions. Under the scientific method, not finding evidence to support a hypothesis, does not mean the hypothesis is proven false – yet we see “no adverse impact “ repeatedly.
Here’s a paraphrased example of an extreme case of jumping to an unfounded conclusion as exemplified by this report.
- We don’t know what rare species are located in the two nearby areas designated as priority habitat for endangered species at the Wilderness Conservation Area, and The Monoliths
- We didn’t know what to look for, where to look for it, or what the appropriate season or time of day to look for “it”.
- We didn’t find it.
- Therefore, “we can presume that there are no rare plant or animal species on-site”
Another statement in the report reads: “The proposed project will result in the loss of approximately 7.2 acres of wooded habitat, provided however, that a portion of the site is planned to be native meadow mix that will exponentially improve the pollinator habitat found in this area.”
An exponential improvement in pollinator habitat? That is quite a generous, yet unfounded conclusion in favor of the applicant. Our native bumblebees of Massachusetts, particularly the species rapidly headed for the endangered list, have specific flower needs. Is the pollinator field providing prunella and Saint John’s wort, penstemon or other plant species that would support these specific bee species? Or is it just the generic mix of coreopsis and black-eyed susans that the non-native honey bees love. What species are included in the applicant’s native plant mix? None have been specifically identified. Wasps, butterflies and moths feed on the oaks, willow, alder, birch, cherry trees in the threatened area. What is the applicant planting that will replace 7 acres x 40 ft tall of the existing pollinator system that will support this claim of exponential pollinator habitat improvement?
This is an example of a conclusion in this report with no scientific basis. Existing willow, button bush, viburnums, clethra, blueberry, huckleberry, sasparilla, sassafras, eupatoriums like boneset and joe pye weed, asters and goldenrod and elderberry – not necessarily in that order, unfold into an extended season of nectar and pollen. Wood nymph and satyr (butterflies) larva feed on sedges which are bountiful in the wetlands; there are abundant red-spotted purple, and mourning cloak butterflies in the woodland and woodland edges whose larvae feed on the birch, willow and oaks.
Lepidoptera caterpillars in woodland trees, particularly oaks, and the wetland willows are a major source of food for birds, like the warblers and vireos for which this area is renowned, but these birds or food sources do not appear in the Wildlife and Habitat Study. Other insects, arachnids and less commonly known species on the taxonomic tree add to the food chain but are not mentioned in this study. Nesting wood ducks and Virginia rail were in the northern vernal pool for the past two years– no mention in the Wildlife and Habitat Study. American bitterns have been heard intermittently over a period of years yet – no mention. Insufficient analysis of the existing habitat has been conducted.
The Wildlife Habitat Study should not be considered a valid assessment of the impact of this project on the existing habitat.
Why Care About Shingle Place Hill
In the woodland known as “Cathedral Pines” just southwest of Shingle Place Hill, there is a plaque affixed to a rock that states “To the Glory of God and For the Benefit of Man These Woods are Preserved Forever — 1879”. This commemorates the legacy of the first parcels of land purchased for permanent conservation in Manchester. A few residents of our Town had the foresight to protect this lovely wooded area in its natural state.
Now we know just how ecologically critical it is to preserve large contiguous tracts of undeveloped land. The soil and trees sequester carbon; all of the vegetation takes up atmospheric carbon dioxide and releases oxygen; the wetlands absorb excess water to prevent flooding — then release it gradually to become our drinking water downstream. Our woodlands and wetlands provide habitat for countless species of common and rare species of fungi, plants, and animals, from tiny insects and mollusks to birds and mammals.
Moreover, geologically uplifted and forested bedrock units such as Shingle Place Hill shield us from the noise and automobile exhaust from nearby roadways as we seek the refuge and peace of walking the trails of our beautiful conservation lands. This is the Gateway to the Wilderness Conservation Area, over 1500 acres of pristine land that has been acquired and conserved by the Towns of Manchester and Essex and private land trusts over many decades.
Below is the applicant’s architects’ rendering with annotations from our own architect noting the inflated size of the installed trees (are they really installing trees 20-30 feet tall?), and the actual heights of the block walls, reaching a total of 42 vertical feet in some locations.
- Manchester Zoning Board Appeals Public Hearings
- Scott Horsley (Water Resources Consultant) Letter on Test Pit data 04-13-2022
- John Chessia (Civil Engineering Consultant) Letter to ZBA 04-13-2022
- Daniel Hill (MECT counsel) letter to ZBA 01-21-2022
- David Black (Traffic Engineering Consultant) Letter to ZBA 01-21-2022
- Daniel Hill (MECT counsel) letter to ZBA 10-25-2021
- Scott Horsley (Water Resources Consultant) letter to ZBA 10-25-2021
- John Chessia (Civil Engineering Consultant) letter to ZBA 10-25-2021
- 40 B Handbook for Zoning Board of Appeals 10-25-2021
- Mass Housing September 16, 2021 Project Eligibility Letter
- MECT June 15th 2021 Letter to MBTS BOS with Comments on Proposed 40B Shingle Place Hill Development for Mass Housing
- MECT December 21st 2020 Shingle Place Hill Bulletin
- MECT October 17th 2020 Shingle Place Hill Bulletin
- MECT October 7th 2020 Letter to the Manchester Board of Selectmen
- Town of Manchester by the Sea 40B Project Webpage
- Citizens Initiative for Affordable Housing
- Trustees of Reservations January 13th 2021 Letter to the Manchester Board of Selectmen
- Environmental Consultant’s January 12th 2021 Report to Manchester Conservation Commission
- Environmental Waiver Requests from SLV February 18th 2021 -and- Response from Manchester Conservation Committee to BOS February 25th 2021
In addition, Senator Bruce Tarr and Representative Brad Hill have been working hard on House Bill H2198. This hopes to amend the Chapter 40B law, which may have an impact on the Shingle Place Hill project. MECT was asked to testify at the Committee Hearings on this proposed law.