Preliminary Review of 40B Proposal Gets Underway


The Selectmen host the first of what will be a series of public meetings on the proposed 40B apartment building slated for Upper School Street. The developer presented their initial plans Thursday evening. 

This initial review phase is focused on the possibility of the Selectmen and the developer negotiating a development agreement prior to the formal hearing process that will take place before the Zoning Board of Appeals (likely to begin mid to late winter).  If an agreement is reached, then it becomes part of the record before the ZBA and the developers are obligated to not argue against or appeal the conditions contained in the development agreement.  If no agreement is reached, the Selectmen will be presenting testimony before the ZBA advocating for conditions/mitigating measures they feel are needed before the project should be allowed to go forward.  However, under this scenario, if the ZBA were to incorporate these conditions or decide to deny the project a permit, the developer can appeal to the state to have these conditions/decisions overturned.  

Because we lack any of the “safe harbors” that allows a town to reject a proposed 40B project (less than 10 percent—in fact, under five percent—of our housing stock is designated as affordable, under 1.5 percent of our lands are dedicated to affordable housing and  we have not made substantial progress implementing our Housing Production plan) means that it is very likely that the proposed project will gain state approval.  One strategy to attempt to make the project fit into the town as best as possible is to pursue a development agreement (a so-called “friendly” 40B.)  

The process for the 40B proposal is unfolding in a number of phases.  The exploratory phase has taken place over the last several months.  The developers secured an option on the land under consideration and approached staff (Town Planner Sue Brown and me initially) to alert us to their interest in advancing a project.  As part of their due diligence, the developers also spoke to department leaders and to the School District to help them assess the impacts the project might have on town and school operations. Their initial fiscal impact study can be found on the town’s web site.  They have also met with the Manchester Essex Conservation Trust to hear MECT’s concerns.  Both the Selectmen and Planning Board have been kept appraised of these early explorations.   

A couple of the Selectmen had an opportunity to talk with the developers informally about what they are trying to build. 

Selectmen and other boards have used the summer to educate themselves on the 40B process.  In August, the boards had a presentation by Attorney Jon Written who is an expert on the 40B process.  Chairs of the various boards followed up with a conference call to discuss ways to ensure communication channels were open between boards and information would be readily available to all.  A web page dedicated to the 40B process and the information submitted by the developers was created. The Town will be hiring additional experts to assist us in evaluating the proposal.     

We are now entering the preliminary review and possible development agreement phase.  As this phase progresses it might be determined that such an agreement is not possible or desirable.   

On the other hand, it might be determined it is the best way to ensure the town is protected against the more negative impacts of the project.  The formal permitting process before the ZBA follows next.  Concurrent with both phases is the work on the Limited Commercial District and studying whether a 40R overlay district can be beneficial. If so, how might the 40B project fit in if it were to happen?  The last phase of the 40B process is an appeal before the state should this prove necessary.  

Development proposals often present difficult choices.  Private landowners have the right to develop their lands within the guidelines a community or state provides.  There are also public needs, some of which conflict.  As our Housing Production Plan details, Manchester has a demonstrated need for a more diverse housing stock and correcting this situation arose as a priority in the new Master Plan.  We also have needs for open space and the protection of important natural resources.   

We are fortunate to have about a third of the town already dedicated to open space and are working to protect much of the “western woods” that lie in the northwest corner of town.  How we manage the future of the areas to the north of Route 128 will require much discussion, careful analysis and likely compromises. 

40b, town planner, manchester essex conservation trust, selectmen and planning board, zoning board of appeals