Catch 40B

Not many places in the Valley are more beautiful than the rolling stretch of Rte. 47 that runs from Bay Road under the shadow of the Holyoke Range and down the Connecticut River to South Hadley. Heading south and passing Mitch’s Marina, you see the open farmlands and wide views of the river that let South Hadley breathe—that give it a charm surpassing that of a commonplace suburb.

Before you come within sight of Village Commons, Mount Holyoke College’s retail island, you can turn west on Ferry Street, named for the ferries that used to leave from the end of the street for Holyoke across the river. Here, in the wooded lowlands near the river’s flood plain, a problem is brewing. A group of developers that includes the town attorney wants to build 27 units, townhouses and ranch-style dwellings, on half of a 10.8 acre parcel in an area where most houses now occupy an acre of land or more.

Since it was broached in 2011, the proposal has angered residents on and near Ferry Street, who say the housing cluster would alter the character of the neighborhood and be at odds with the zoning scheme in the master plan the town worked for years and paid $100,000 to develop. Moreover, they say, it would be an uncomfortable, even unsafe environment for potential future occupants, who would likely have water in their basements because of proximity to wetlands.


Rivercrest Condominiums LLC, which includes Leonard Marion, Raymond Authier and South Hadley town attorney Ed Ryan, are now in the fourth year of their fight to develop the Ferry Street parcel. The relationship between the principals in the project is a very old one. Ryan has been South Hadley’s town attorney off and on since 1968, and the Marions, who have been in the construction and development business in South Hadley for decades, have been his clients since the 1970s.

Ryan has recused himself from his position as town attorney in matters concerning Rivercrest, but he has served as spokesman for the project before town boards. Critics say his long tenure in the post, and the fact that he is currently town moderator as well, lends weight to that advocacy. Ryan insists, “My involvement with this development has been as a private citizen. I’ve never appeared as their counsel before any of the boards here. I’m part of the applicant pool.”

Ryan and Paul Boudreau, Ryan’s partner in a private law practice, have long been involved in development projects in South Hadley, sometimes with Ryan as an investor, sometimes with either or both as attorneys for developers. In 2001, Ryan was an investor in a company, ROAM Development, that built the temporary courthouse along Rte. 9 in Hadley at a time when Elizabeth Scheibel, Boudreau’s wife, was district attorney for Hampshire and Franklin counties (“Who Wants This Courthouse?”, January 31, 2002). (At the time, Scheibel told the Advocate that she had had no involvement with that project and in fact had not supported the building of the courthouse in Hadley.)

Also around 2001, Boudreau represented a Marion company that was building a small subdivision called Crystal Estates. Ryan was clerk of that company, and had helped draw up applications for financing for that subdivision. Later, when a question arose about whether the development needed sidewalks, the Planning Board referred the developers to the town attorney—Boudreau’s partner, Ryan.


Early in the life of the Rivercrest project, neighbors and other town residents formed an opposition group called Friends of Ferry Street. Kristin Stueber, a retired physician who is a member of FFS, told the Advocate, “My problem, as an abutter who is downstream and is likely to be affected by water runoff or sewage, is that I think it’s an environmentally unsound project. The neighbors have notorious problems with water already. Several have a sump pump running all the time. I think it’s going to be impossible for them to get a stormwater management program that would pass careful critique.

“It’s high density in a place where it doesn’t belong. It’s not the right topography; it’s not the right soil type.” And, said Stueber, it’s not a friendly site for families with children because the part that would not be built on is crossed by ravines. “They keep arguing that there’s going to be open space,” she says, “but it’s not available for use as a playground or open space that you’d expect from a condo development.”

Residents were also offended because Ryan, the town attorney, was advocating for a development that failed to respect the master plan. But planning board member Joan Rosner responded to their concerns, as she did to a question from the Advocate, by saying that the master plan was “meant to be a road map. It’s not to be construed as a regulation.”

In December of 2011 the Planning Board, citing environmental reasons and safety problems because of increased traffic around the site’s one proposed entrance off Ferry Street, denied approval for the project. The developers’ next move was to go to the state for permission to build under a state law, 40B, which allows developers to override local zoning law to build affordable housing in communities that don’t meet the state’s requirement that 10 percent of their housing units be affordable.

Ryan told the Advocate that because his group had already bought the land, rather than just taking out an option on it as many developers do before their permits are in place, they were left with no other choice after the Planning Board refused to approve their original proposal.

In South Hadley, which in spite of the presence of Mount Holyoke College was never a town that went out of its way to encourage racial or economic diversity, only 5.6 percent of housing units were affordable. Rivercrest declared its intention to build 60 units, 15 of them affordable, at the Ferry Street site.

Residents of the area saw the introduction of a 40B proposal not as a plan to benefit low-income people, but simply as a threat the developers put into play after their first proposal was rejected. Jodi Miller lives on Brockway Lane, a short distance through the woods from the rear of the Rivercrest site. “There was a lot of talk about 40B and no talk about affordable housing,” said Miller, who heard the presentation in which the developers brought up the law. “They talked about, we’ll go to 40B if we have to, but they didn’t say anything about how that would be good.”


By last December, Rivercrest had reached an agreement with town officials to refile a plan calling for around 30 units while still holding the option to develop under 40B.

In a crowded hearing this past March, residents listened as Rivercrest came back to the Planning Board to revive their proposal for the smaller number of units, but with no stormwater management program, which left abutters frustrated; as one woman put it, “I don’t want to see my new neighbors slogging in the muck.” The developers wanted their permit before submitting a stormwater management plan; the Planning Board balked at the idea of issuing the permit without the plan. In the end, under pressure because of the 40B proposal, the Planning Board issued a permit on condition that the stormwater plan, when filed, would solve the project’s runoff problems.

Meanwhile, the Zoning Board of Appeals was charged with evaluating the developers’ application for a 60-unit 40B project, and though it could not enforce zoning law, the ZBA did have certain prerogatives. Beginning last winter, the ZBA twice asked the developers for “full details” on the 60-unit proposal, and twice they were given extensions. But in May, when the company was expecting another extension, the ZBA hit it with a deadline of June 16 to file “full details,” including a stormwater management plan, or risk losing the 40B option.

“The problem,” Ryan told the Advocate last week, “is that we’re not going to meet that request by Monday. That would have required the expenditure of considerable sums of money. We’ve got a special permit [for the smaller number of units] and that’s the avenue we’re pursuing. We need now to go back to the Planning Board and the Conservation Commission for stormwater management approval.”

So the ZBA has beaten back the 40B threat, at least for now, but Rivercrest LLC seems well on the way to getting what it wanted in the first place. Critics of the project would no doubt agree with one thing Ryan told the Advocate: “It’s been a long and frustrating process for both sides.”•


The Future of 40B


Everyone agrees that, as state rep John Scibak told us, the “intent” of 40B “makes sense.” The rule has created more than 60,000 units of affordable housing in the state. But with its provisions for the overriding of local zoning laws, it’s also served, time and time again, as a weapon to cow communities into accepting nonaffordable development they don’t want.

“I don’t think it’s fair for any developer to come in and say, ‘If you don’t give me what I want, I’ll increase the density. I don’t have to listen to you because I’m going to use 40B,’” said Scibak, who represents South Hadley. Scibak also criticized 40B because it allows developers to sell affordable units without capping their profits on such sales.

Scibak believes 40B needs overhauling, and he’s not the only one. State senator Jamie Eldridge of the Middlesex-Worcester district has filed legislation that would refine 40B by, among other things, exempting towns that increase their affordable housing by .5 percent in a year.

So what should South Hadley do to benefit both low-income people and other town residents who don’t want to see 40B used as a weapon by developers?

The same thing every other town should do, says Scibak: “I think any community should have to develop an affordable housing plan. That plan should ID locations and what the steps are to get to the 10 percent.” Then, says Scibak, if a developer proposes an affordable housing project, the town can stipulate that it fit the plan.•


Author: Stephanie Kraft

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