Before opening any public hearings, Rochester Zoning Board of Appeals Chairman Richard Cutler let fellow ZBA members know that he has become aware of a large-scale affordable housing development entering the pipeline early next year.

The 208-unit affordable housing development slated for the corner of Routes 58 and 28 would be classified as a Chapter 40R development, which Cutler referred to as a “friendly 40B.”

Although Cutler had no specific details of the proposal, during a follow-up with The Wanderer on Monday, Planning Board Chairman Arnie Johnson offered up some information – and some reassurance, as well.

First, what is a Chapter 40R and how does it differ from a Chapter 40B? The state’s Chapter 40B law gives developers more flexible standards to avoid stricter local zoning requirements in order to encourage further development of affordable housing in municipalities. At least 20-25 percent of the units must be designated as affordable, and in towns that have not yet met the state’s mandated 10 percent year-round affordable housing minimum, a developer can appeal a Zoning Board of Appeals’ denial of the plan and, as long as there are no safety or health concerns with the proposal, the state may overrule the town’s decision.

With a 40R, Town Meeting would adopt a Smart Growth Zoning Overlay District either as-of-right or through a limited site plan review process with the Planning Board. Upon approval, the town becomes eligible for Chapter 40R payments and financial incentives to offset the costs related to an increase in demand of municipal services. The developer must also adhere to local building requirements and guidelines for design and aesthetics within the Smart Growth Zoning Overlay District Bylaw.

“For the Town’s support for the local initiative petition, they get a one-time amount of money for impact on services,” Johnson said, and possibly additional funds from the state to help offset the increased cost of education.

The one-time sum for a 208-unit 40R development would be $350,000, with an additional $3,000 per unit for a total of $974,000, not including property taxes. With a 40B project, that one-time sum would be $0.

“We’ve been meeting with them for a while now,” Johnson added. “I think it’s important to know the difference between a 40R and a 40B, and I think it’s important that we understand the situation where, if we don’t do the 40R, we’re probably gonna have to do a 40B.”

Johnson says he is somewhat concerned about the public’s response to the news of the proposed 40R since misinformation is bound to circulate, which is why he wants to emphasize the distinction between a 40B and a 40R.

With Chapter 40R, there is more local control and a financial incentive, while a 40B is as-of-right with no financial incentive. Furthermore, Johnson said, unlike the 40B in Marion that selects its inhabitants via lottery and provides for low-income housing, a 40R has a different rental application process for an income bracket of low-to moderate-income households and can grant preference to local residents. A 40R also allows for a mix use of residential and commercial.

As for the plan, Johnson said the development would consist of four apartment buildings placed behind the gas station at the corner of Routes 58 and 28. The property behind the housing development would be reserved for general commercial and light industrial, he said, and the state dictates the number of bedrooms allowed – 10 percent three-bedroom, and the rest two- or one-bedroom apartments.

Residents might not be entirely thrilled with the prospect of a 40R, Johnson said, but “If it’s not a 40R, it’s going to be a 40B,” he stated.

“If it’s gonna be built,” said Cutler, “that’s the best place for it.”

Johnson said the Planning Board would hold a joint meeting with the Board of Selectmen in January to discuss the 40R proposal and an article for a Smart Growth Zoning Overlay District for the Annual Town Meeting warrant.

In other matters, it is uncertain if Steven and Jennifer Proffit of 514 Snipatuit Road will receive a Special Permit to enclose the breezeway linking a garage/guesthouse with the main house in order to provide ailing in-laws with a habitable place to live.

Attorney Gerald Johnson, on behalf of the applicants, suggested linking the garage/guesthouse to the house with an enclosed hallway would not be a detriment to the neighborhood, saying, “I don’t think it affects anybody else’s welfare. … [The proposal] is in harmony with the general … intent of the Rochester bylaws.”

Cutler pointed out the lengthy history to this property and the garage and breezeway, which stretches back to prior owners of the property who were restricted to the open breezeway to avoid a garage habitation situation that would present as having two houses on one lot, which is prohibited. The guesthouse, however, would have no kitchen, and would be used only as a place for the temporary inhabitants to retire for the evening.

The Proffits say they will use the garage’s upstairs guesthouse as a workshop in the future after the proposed guesthouse use, and the footprint of the structures would not change.

“The issue I’m having is that, independent of who is sitting here in front of us, this is a self-created hardship,” Cutler said. “And even though the motive is good, having the in-laws staying here while ill, this still leaves two houses on the lot … and then what? There will always be two houses on the lot and that’s very contrary to what our bylaws are indicating.”

Cutler later stated that he couldn’t remember a time when the board has ever approved two houses on one lot.

Plus, given the history, ZBA member David Arancio said, “If it is the choice of this board to grant relief, how to do that in a manner that is fair to not only the bylaws [and] the applicant, but to people in the inspection process?”

The hearing was continued until January 10 so the Proffits could submit a floorplan of the current structure and the proposal of what is planned.

The public hearing for Erik and Sue Morad of 552 Snipatuit Road was continued until January 10. The Morads seek a Variance for a garage over 1,000 square feet, which will later be converted into a single-family house and the existing house would be demolished. The hearing, continued from the last meeting, should be wrapped up in January, said Cutler.

“We’d like to see this move forward: we just want to make sure the language is correct,” said Cutler. “I guarantee we will have something for you then.”

The next meeting of the Rochester Zoning Board of Appeals is scheduled for January 10 at 7:15 pm at the Rochester Town Hall.

Rochester Zoning Board of Appeals

By Jean Perry

Attorney General Maura Healey has rejected Rochester’s attempt to extend its temporary moratorium on adult-use cannabis; as a result, the AG’s Office says Rochester’s moratorium has expired and thus Rochester must immediately begin accepting applications for adult-use cannabis businesses.

Rochester Town Meeting in May voted to adopt an article extending the temporary moratorium past its October 31, 2018 expiration until June 30, 2019.

Healey had expressed in prior responses to other municipalities’ marijuana moratorium extensions that it would not honor moratoria beyond the December 31, 2018 date, saying that the time provided to municipalities in the Commonwealth was sufficient, which was stated in the AG’s response to the Town of Egremont’s adopted bylaw.

Planning Board Chairman Arnie Johnson acknowledged in a follow-up back in May that the Commonwealth would likely reject the moratorium extension, saying, “We’ll give it a shot.”

The Town’s original Temporary Moratorium on Marijuana Retail Sale Bylaw states that, during the moratorium period, “the Town shall undertake a planning process to address the potential impacts of recreational marijuana in the Town, consider the regulations of the Cannabis Control Commission regarding recreational Marijuana and related uses, and shall consider adopting new Zoning Bylaws to address the impact and operation of Marijuana Retail Sale.”

However, since the original temporary moratorium was adopted at the May 22, 2017 Annual Town Meeting until the Town Meeting vote to extend the moratorium on May 21, 2018 one year later, the Town has not presented an appropriate zoning bylaw to regulate the siting of adult-use cannabis in Rochester.

In the December 3 letter to the Town, Healey wrote, “Because the final version of the Cannabis Control Commission (CCC) regulations … were filed with the Secretary of State on March 9, 2018, it was reasonable in May 2017 for the Town to adopt a moratorium for a limited period of time to study the CCC regulations and develop zoning and other by-laws in light of the regulations. However, the Town has not provided, and we cannot discern, a legitimate zoning purpose for now extending the moratorium from October 31, 2018 to June 30, 2019.” It further states, “[T]he ‘contingency’ of no fall 2018 special town meeting does not appear to be a legitimate zoning purpose for the extension because the Board of Selectmen is empowered by statute to call a special town meeting at any time.”

“We just lost track of time, to be honest,” Planning Board Chairman Arnie Johnson said during a follow-up on December 13. After he read Healey’s letter rejecting Rochester’s moratorium extension, Johnson said he crumpled it up and threw it away in anger.

Having said that, though, Johnson summarized town counsel’s consolation on the matter, saying that the process an applicant must undergo in order to acquire an adult-use cannabis license is rigorous and relatively lengthy.

“And there hasn’t been anyone that has filed yet,” Johnson said. Town counsel has been checking and no one has filed for any permit in Rochester, so he feels pretty confident that, by the time they file and go through the state process and they approve it, that we would be close to Town Meeting (with a cannabis zoning bylaw) where the rejection of the extension of the moratorium becomes a moot point.”

Johnson pointed out that once the town clerk files the new bylaw with the AG’s Office within 30 days of Town Meeting adjournment, the AG’s Municipal Law Unit then has 90 days to issue a rejection or acceptance. The Town did not receive a response until December 3.

“Itwent way past the 90 days,” Johnson said. “Had they denied it right away perhaps we might have had to deal with [an adult-use cannabis operation] coming into town in a slightly unregulated way. We already had a rough draft, so we’re not too far off base on it.We haven’t taken [the bylaw draft] up as a board, but we will. In January, we’re going to start that process.We’re going to probably end up creating an overlay district.

“Them denying it at this point really doesn’t matter,” said Johnson. Still, Johnson continued, “We probably would’ve had the [cannabis bylaw] done, but this Green Communities thing kind of got thrown on our plate unexpectedly, so that took up a lot of our time. We’ve also got a lot of solar coming back in town that’s probably going to file in the end of January/February, so we’re going to get real busy real quick.”

In addition to Rochester’s moratorium extension, Healey also rejected similar extension attempts for Natick and Plympton.

By Jean Perry