By Beth David, Editor
In a marathon session on Monday, 6/10/24, the Fairhaven Select Board held a public hearing on the proposed 40R district and accompanying bylaw, and also discussed the process for choosing a police chief after the Town Administrator’s choice was overruled by the Civil Service Commission (see page 27 for Civil Service story).
The 40R overlay district would allow for higher density residential units and would allow mixed use, such as commercial units on the ground floor, and residents above. The town started looking into the possibility of creating a 40R district about two years ago. A working group has met several times with public input along the way. The effort was spearheaded by the town planner’s office and the Planning Board, which will have to work on any associated bylaw.
Three consultants presented the case to the SB and the public at Monday’s meeting.
The consultants made available to the public hundreds of pages of documents, including maps, design standards, and a proposed bylaw. Only the design standards had been available on the website before the meeting. It was not even clear that a bylaw was being proposed. Several days before the meeting, the Neighb News made several email attempts to the Town Administrator’s office asking about the bylaw, and asking if the design standards document was the only material being discussed at the meeting, but the questions were not answered.
The 40R will create what is, essentially, little villages of areas where people live and work and shop. The initial plan had favored utilizing the plazas areas, where the town has large under-utilized parking areas. Instead of empty parking lots, the areas would be transformed into neighborhoods.
The working waterfront was not initially included in the overlay district because of a variety of constraints, including sea level rise, infrastructure, such as underground pipes leading into the harbor, according to consultants.
In somewhat of a curiosity, however, the “waterfront was added back in in January,” according to Dillon Sussman of Dobson & Flinker. He did not elaborate on why. But at some point in the presentation, he noted that a 40B project was proposed so town officials put the waterfront back in to ward off that project. *
With the addition of the waterfront, the district now encompasses property owned by Planning Board members Patrick Carr and Ruy DaSilva. The PB will need to hold public hearings for the bylaw and will be the board that submits it to town meeting for approval.
Attorney Adam Costa of Mead, Talerman and Costa, started with an overview of the process that Fairhaven has gone through so far. He said the state offers financial incentives to a municipality for creating the additional housing units, but, he cautioned, the town should not create the district for that reason.
He recommended getting the application to the state by the end of June, going through the regular bylaw process with the Planning Board through the summer, and then submitting it to a special Town Meeting in the fall. He noted that the bylaw for a 40R overlay district only requires a simple majority at TM, instead of the usual 2/3 vote, a change from the state to encourage the creation of the 40R districts.
Peter Flinker of Dobson & Flinker showed artist renditions of different designs that could be utilized in the district. He said key elements are putting the parking behind the buildings, and creating public spaces in front of buildings, with lots of green spaces. The designs all have wider sidewalks and allow for outdoor seating at most retail outlets.
The different areas would allow for 35 to 60 units per acre, and allow from three stories to five stories, depending on where.
The Plazas areas would comprise 79 acres and could have as many as 1,405 units. The waterfont area is nine acres and could have a many as 256.
Mr. Sussman said there would be three height zones and different street types, taking into account some existing streets are wider or narrower than others.
Board member Andrew Saunders asked how long the buildout could take. Mr. Costa said it can take decades. Most businesses are not going to sell just because a 40R overlay district is created, he said. As they naturally transition out, the changes will probably happen.
He said the 40R is a long term strategy, not short term.
He also compared the 40R to the 40B, which is the state law that allows developers to bypass local zoning if they include affordable housing.
Mr. Saunders also asked about the state financial incentives and the likelihood of them being there years down the road.
Mr. Costa said the maximum the town could get is $350,000, and he admitted there is no guarantee on how long those incentives will be there. He added, however, that the 40R should be viewed as “good planning practices,” not for the money.
“The money is the icing on the cake,” said Mr. Costa.
They also discussed the possibility of conflicts with existing special permits or zoning, such as the number of parking spaces required now for big stores.
Mr. Costa said the idea is for an entire property to be redeveloped, so there should be no conflicts. However, if there is, then the town’s current zoning would prevail.
SB member Charles Murphy said he was concerned about the safety and liability aspects of adding floors to existing buildings for housing.
Mr. Costa answered that the idea is to raze the old structures and build new. He said if a developer did use an existing building, it would have to comply with state codes, so there would be no liability to the town.
SB member Keith Silvia asked about an affordable housing requirement. Mr. Costa said there is a requirement for some units to be affordable. He is proposing that they be affordable in perpetuity instead of the 20 or 30 years suggested by the state. Affordability means tenants who make 70% to 80% of the area’s median income.
During the public comment period, longtime PB member Wayne Hayward said it seemed they were rushing it to get to a fall Town Meeting. He said in general the town is trying to reach the 10% threshold for affordable housing to ward off 40B developments. But the town is only shy about 220 units, and does not need “thousands” of units to get 220.
Will Gardner, of the Livable Streets Committee and a well known proponent of more dense zoning, said people hate seeing a sea of parking that separates them from retail stores. He also noted that we have a regional housing crisis, and young people cannot afford to live in the town they grew up in.
Several PB members weighed in with written comments, including Sharon Simmons, who is wholly in support of the project.
Ms. Simmons, a realtor, compared the town to a business, and said the overlay district will result in increased revenue for the town. She also wrote that the plazas would get a “much needed facelift.”
In separate letters, Jessica Fidalgo and Kevin Grant both expressed concern about the waterfront area being added back in, at the lack of transparency in the process, and the absence of a professional planner, as that position is currently vacant in Fairhaven. Consultants have been working privately with PB chairperson Cathy Melanson.
Ms. Fidalgo notes in her letter that the waterfront area was specifically removed by the working group, but was added back in with no explanation.
Mr. Grant notes that typically the PB would discuss changes in their meetings and invite public input.
“Instead, this new version of the Plan is being brought before the Select Board swiftly and somewhat mysteriously,” writes Mr. Grant, adding that the new district includes property owned by two PB members.
“I worry that these actions will further damage the credibility and trust of the Planning Board in the minds of the people we have been elected to represent, and that we may become — if we have not already — a lame duck Planning Board, unable to pass anything at Town Meeting with our current membership,” he writes.
Mr. Hayward also submitted written comments. He said he had been trying to get the bylaw language for weeks, and the information was not provided.
“The documents provided are meaningless without the legal standards to be used in any future districts,” writes Mr. Hayward.
He also questioned the process, and noted the town does not have a professional town planner.
“The consultants of DODSON & FLINKER have to date, worked solely with stakeholders in the proposed district,” writes Mr. Hayward. “Many stakeholders live outside the town of Fairhaven. There has not been a single, general public debate on the 40R proposal.”
Mr. Hayward also questions the addition of the waterfront district, noting it was removed by two prior town planners, and it is in a flood zone. The number of units allowed in that district could result in 400+ people becoming homeless after a hurricane.
To see/download the documents, including the letters, visit https://www.fairhaven-ma.gov/planning-economic-development/pages/40r-mixed-use-overlay-planning-district or visit the town website’s Planning & Economic Development page, then click on 40R on the top left menu.
*Corrects error from previous versions, the 40B proposal was not noted in previous versions.
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