The Planning Board met for nearly four hours Monday night in a marathon session where two contentious cases dominated the meeting. Several hearings were continued, including three regarding a Whisper Way development where land was slated to be conveyed as open space.

The meeting shed light on a couple of procedural errors that had transpired. A vote needed to be retaken on the findings regarding a proposed subdivision at 0-24 Chestnut Street by Keystone Development Corporation. This is the first case where the town’s new inclusionary zoning bylaw is being utilized. There was confusion as to whether the vote on the findings needed a supermajority of two-thirds to pass; only a simple majority was required. Another vote for a revised finding explaining the board’s previous vote had to be voted to be stricken after Principal Planner John Gelcich reported the error.

In the case of the Whisper Way 12-lot project — which had to be continued due to the lateness of the evening — land was supposed to be conveyed to the town as part of an open space and landscape preservation development (OSLPD) special permit. However, meeting documents show that four lots had building permits issued for the construction of the homes in that subdivision prior to the conveyance of the open space or the placing of a conservation restriction on the land, contrary to the requirements of the OSLPD bylaw. Also, two of the three units constructed have been issued certificates of occupancy and have been sold.

“We acknowledged that the permits were mistakenly issued due to miscommunication within the Land Use Department and have not taken any action to revoke or amend these permits,” the document read. “It was determined internally that no further building permits would be issued until the open space requirements were met.”

Development calls wording of inclusionary housing bylaw into question

Keystone representative Richard Olstein gave a presentation to the Planning Board showing the financial impact of developing one affordable unit along with the seven proposed market-rate units. He used it to strengthen his argument that building an affordable unit off-site was more feasible.

Olstein argued that according to the bylaw, its purpose was to increase the availability of affordable housing in Hopkinton. The board’s findings, however, said that there had to be “a significant benefit to the town” showing the rationale for not including the affordable unit with the market-rate ones.

His financial breakdown illustrated that the costs incurred for developing the affordable unit there, including the land, infrastructure, construction and other costs, would total $1,541,000. The projected sales price is $228,500, which he said showed a significant loss.

“That’s a heck of a deal,” noted chair Gary Trendel.

Olstein said it was “inconceivable that any development can support that kind of a loss before the development even starts.” From his perspective, providing a special permit for the affordable unit offsite did constitute a significant benefit to the town in terms of its affordable housing stock.

Trendel noted that the size of the home was “the tricky part.” He noted that affordable units in other developments do not have to be the same size. But they must not be significantly different in style and other factors from market-rate ones.

Resident Sam Sader questioned whether building luxury units was a way to get around building affordable ones due to the cost. He also asked about how the cost to maintain the property of an affordable unit would impact the decision.

Gelcich pointed out that right now, market prices, interest rates and construction costs are expensive.

Member Ron Priefer proposed that the developer acquire a property for more than one affordable unit. He suggested that money in the affordable housing fund be used to offset the cost. Trendel said this was “outside the scope” of the current debate.

Gelcich noted that in proposing affordable housing units, “a carrot and a stick” had to be offered to developers.

For Trendel and others, the term “significant net benefit to the town” weighed heavily in their findings against the special permit proposal. The developer argued that the affordable unit is what is required by the bylaw. Trendel countered that that related to the unit being included in the proposed development.

Chuck Joseph, a longtime real estate developer in town, argued that to create more affordable housing, zoning changes would have to be made.

After a protracted discussion, the proposed findings, with a modification about the occupancy permit requirement, were narrowly approved 5-4. Because it was thought that a supermajority was required, Trendel and those who opposed the findings created a new finding explaining the decision. That was later rescinded when it was found out that it was not necessary, and the findings and the special permit proposal were shot down in a combined vote by a 6-3 margin.

Vice chair Rob Benson noted that the developer’s financial costs alone should not be justification for providing an affordable unit off-site. This language was included in the discussion of the decision to stress this sentiment, which was the view of the majority, in addition to the lack of a “significant benefit.”

Tempers flare during Whisper Way hearing, leading to continuance

Due to the meeting’s length, Trendel said that the three hearings regarding the Whisper Way property would have to be continued. He provided time for some initial discussion given that an error by the town was involved and of the issuance of permits, construction, selling and issuance of certificates of occupancy were issued before the open space was properly marked and conveyed.

The discussion became heated when attorney Mark Kablack, Ravenwood’s representative, stressed that his client was “anxious to proceed with the development of this community.” He asked that the board accept the deed for the open space as it is currently defined into escrow until the board decides to amend the open space permit. Kablack said this would allow for permits to be pulled for building on other lots in the development. The deed would be presented to the town.

If the deed is amended, there will be an additional 5 acres of open space, he added.

Trendel noted that there has been a history of encroachments onto open space in town with other developments. If the land has been disturbed, the town may not accept it. The Hopkinton Area Land Trust and the Open Space Preservation Committee both put forward that the open space boundaries be clearly marked to prevent encroachment before property can be conveyed. In this case, the conveyance, Gelcich said, would go to the OSPC.

Kablack said “the tendering of the deed is the completion of the deal.”

From his perspective, Trendel said “that obligation has not been met,” and that the open space delineation may change during the hearing process.

Added Trendel: “If no one accepts the property, then it can’t be conveyed.”

Kablack said his strategy has been used in other developments in town, notably the Chamberlain-Whalen development.

Gelcich corrected Kablack’s assertion about Chamberlain-Whalen, noting that it was not an OSLPD and therefore not bound by the bylaw. He read the bylaw several times to Kablack, stressing that an extension of time can be granted, “but only if the entity or agency to which the open space is being conveyed concurs with the request.”

Said Gelcich: “I think the issue here is Open Space Preservation Committee has said they are not going to be the recipient of that open space if there are encroachments on it.”

Any encroachments need to be identified beforehand, he added. The Select Board would need to sign the escrow agreement as well.

This provoked a tense series of exchanges between Kablack and Gelcich, where they reiterated the same points several times. Kablack kept asking where this process is outlined in the bylaw about OSPC. Gelcich said that as the “entity accepting the open space,” the OSPC needs to weigh in before the deed conveyance extension can occur.

Trendel had to step in at that point because “the banter back-and-forth isn’t going to get us any closer to a resolution.”

Gelcich clarified that “the board makes that decision” about the entity to which the land is to be conveyed, and it had chosen the OSPC.

Replied Kablack: “The Planning Board doesn’t have that right, either under your bylaw or under the special permit.”

He added that from his perspective, it has to go into escrow and go before the Select Board and then to Town Meeting for the land to be conveyed.

The board later voted unanimously to continue the three hearings regarding this property.

Said Trendel: “We’re not going to solve this tonight.”