Law Department says it’s willing to go to court over 455 Totten Pond Road development

The city’s Law Department clashed with the developer of a proposed apartment building over its contributions to local infrastructure at the Zoning Board of Appeals meeting this week.

The project, proposed for 455 Totten Pond Road, has been in front of the board since March of last year. After extensive negotiations with the city, the developer proposed a final draft for the special permit in November.

John Hession of VHB, a consultant on the project, expressed frustration that hearings had been delayed twice in January and that he received new feedback on the November draft decision from the city’s Engineering, Law and Traffic Departments only that day, Feb. 10. “I’m just trying to demonstrate that we are trying, and we’ve been trying diligently through this,” he said.

Still, he said his team would work with city departments to resolve their concerns by the project’s next hearing in March.

Hession gave board members updated numbers on how much money the developer planned to contribute to city projects and departments for new residents’ infrastructure needs: $300,000 to the city’s traffic fund for a collaborative project to install a sidewalk on Totten Pond Road; $350,000 for the affordable housing trust fund; $300,000 to the Fire Department; $300,000 to Waltham Public Schools; and $100,000 to the Police Department. 

He also told the ZBA that the developer planned to offer 72 of its 340 units at a rent affordable to households making 80% of the area’s median income, five to households making 60% AMI, and eight that would be funded through a federal voucher program for formerly unhoused veterans.

The ZBA and the developer agreed to hold another public hearing on the project on Thursday, March 12. The board also extended the time frame for the public hearing to March 13.

Law Department arguments

Assistant City Solicitor Michelle Learned, who represents the board in Chapter 40B development cases, said that the city was not willing to accept some of the terms the developer had proposed. She argued that it was unreasonable for the developer to limit its spending to $1.4 million to mitigate its impact on city systems; other comparably-sized developments, she said, had been able to provide more mitigation funding without becoming uneconomic.

Board Chair John Sergi supported this assessment, saying that, as a banker, he would assess the value of a project such as the one proposed at 455 Totten Pond Road at more than $100 million. “When I calculate the numbers in my head on this project, there’s a good-sized profit margin,” he said.

Learned added that the development would have significant impacts on western Waltham. “There are 340 proposed units being added to this area,” she said. “That addition of residents to a limited commercial zone could not put the city in a worse position.”

Learned laid out a list of other changes the city wanted in the developer’s permit draft, including studying the project’s impact on Totten Pond Road’s sewer; more significant stormwater mitigation; raising the number of units affordable for households making 60% AMI; and removing language about the veterans voucher plan to avoid legal references to specific programs that might change independently of the special permit.

She emphasised that some of the Law Department requests, such as Totten Pond Road’s sewer capacity, were fundamentally about resident safety. “These [infrastructure projects] are the priority for the city. And if they are not met… I will be recommending to the board that it deny the application,” Learned said.

This project is proposed through Chapter 40B of the state’s general laws, a clause meant to encourage the construction of affordable housing. Chapter 40B allows developers to go to the ZBA for a comprehensive permit for a residential building instead of through multiple city departments. 

If a city or town denies a Chapter 40B permit that was filed before the municipality meets the state’s “safe harbor” minimums for affordable housing, or if its ZBA imposes conditions that would make the project economically infeasible, the state’s Housing Appeals Committee can overrule the ZBA’s decision. 

Waltham announced in August that it had reached the safe harbor benchmark, but since the 455 Totten Pond Road proposal was already filed at that point, if the board denied its permit, the city could still have to defend its decision in a court appeals process. 

Learned argued the building as proposed could cause enough harm to the city that she could argue the case in front of the HAC, a superior court, or even the Massachusetts Supreme Judicial Court. “This is an important enough issue to the City of Waltham to go that entire distance,” she said.

Additionally, the ZBA:

• Postponed a hearing on a case by Waltham resident Paul Yu, who requested a parking variance to convert the top floors of a Main Street property into residential units. The board said that Yu did not submit standard documentation for the case or sufficient proof that the variance was necessary, and requested that Yu return to the board on Feb. 24 with legal representation.
• Welcomed new associate ZBA member Kathy McMenimen.