ZBA Chapter 40B Hearing Extended Into July


The Manchester-By-The-Sea Zoning Board of Appeals and developer Geoffrey Engler agreed to a more-than-a-month extension of the public hearing at Wednesday night’s meeting. 

Engler has applied for a comprehensive permit under the state’s Chapter 40B general laws to build a 136-unit apartment complex to be known as The Sanctuary at Manchester-by-the-Sea. Chapter 40B allows the developer to bypass all local boards and commissions, only needing approval of the comprehensive permit from the ZBA. In return, the developer agrees to make 25 percent of the units in the project affordable. 

The ZBA is allowed six months to conduct its public hearing. The hearing would have ended in May, but Engler and the ZBA agreed to a one-month extension back in March.  

Now Engler and the ZBA have agreed to a second extension, meaning the ZBA can continue to collect information and public comment until July 27. 

The main reason for the extension was that the Wildlife Habitat-Vernal Pool Study has not yet been submitted to the town. Allen & Major, the environmental civil engineering company conducting the study, had originally said the study would be ready the first week in June. 

In addition, ZBA Chair Sarah Mellish said the board is also waiting on the Municipal Wastewater Connection Feasibility Study.  

 “I’m comfortable with that extension,” said Engler. “One of the reasons we granted the extension, is we know that (Wildlife Habitat Study) is important to the town and we did not deliver on the June 1st expectation.” 

Engler said the town would get the Wildlife Habitat Study by Friday, June 10. To allow time for Beals & Thomas and the board to review it, it will not be discussed until the July 13 meeting. 

The lack of the Wildlife Habitat Study, a study of the wildlife living on the property of the proposed project as well as the surrounding environmentally protected land, meant the board was not able to fully consider or vote on the environmental waivers sought by the developer. 

However, Stacy Minihane of Beals & Thomas, who is conducting the environmental peer review for the board, did go over the latest waiver requests. Waivers that are approved by the ZBA allow the developer to disregard or bypass certain town bylaws.  

The biggest bone of contention may well concern the setbacks from vernal pools. Minihane explained that the state requires a 100-foot setback from the wetlands that may include a vernal pool. The town’s bylaws are more restrictive with a 130-foot “no disturbance zone” and a 150-foot “no build zone” from the vernal pools themselves.  

While the ZBA was considering the differences between the state and the town laws, Minihane explained that it may not matter. 

“The reason for the Chapter 40B comprehensive permit process and the possibility for waiving local bylaws review is the need for affordable housing,” said Minihane. “So the standard for waiver-granting is if a waiver is needed because it would make a project unbuildable, then that waiver is typically granted.”  

Engler repeated the same idea later in the meeting. 

“We feel very confident that we comply with all state standards (concerning wetlands setbacks),” said Engler. “Because Manchester-By-The-Sea is under 10 percent (of its housing stock being affordable), the state looks at that the need for affordable housing outweighs local concerns, unless it is so onerous or so outrageous.” 

Elizabeth Pyle, a lawyer for the Manchester Essex Conservation Trust, disagreed with Engler.  

 “It’s not just whether the waivers would make the project uneconomic,” said Pyle. “It is whether you find the environmental and other concerns … outweigh the need for regional housing.”  

Scott Horsley, also working as a paid consultant for MECT, presented results of a Vernal Pool Hydrological Study, that found that the project would redirect stormwater away from the vernal pools and wetlands just north of the project, reducing the amount of water that would recharge the ground by 40 to 50 percent during the key months of March to May.  

 “A vernal pool is a breeding ground for many creatures that go into the water to breed,” said Alan MacMillan, a member of the Rockport Conservation Commission for 35 years.  “That (protected area around the pools) is critical to the survival of the pool. You destroy that area, remove the tree cover, move the ground, damage the ground and no life exists.” 

Scott Goddard of Goddard Consulting, who working on the Wildlife Study for Engler, said Horsley’s study had “skewed presumptions,” saying that the study only looked at the stormwater coming from project, and did not include the stormwater coming from all other areas into those wetlands. 

The ZBA will meet next on June 22 and will discuss the Architectural Peer Review and may consider additional conditions and waivers.