Planning Board

Attachment A Brian R. Falk Mirick O’Connell 100 Front Street Worcester, MA 01608-1477 bfalk@mirickoconnell.com t 508.929.1678 f 508.983.6256 November 9, 2023 BY EMAIL Sean Fay, Chair Marlborough Planning Board City Hall Marlborough, MA 01752 Re: Proposed Revisions to Red Spring Road Overlay District Dear Mr. Fay: Following public hearings and resident comments on the proposed Red Spring Road Overlay District, I have discussed possible revisions to the zoning amendment with my client, the Red Spring Road Homeowners Association, Inc. The goal of the proposed Overlay District is to render the 29 existing principal structures along Red Spring Road conforming with the Marlborough Zoning Ordinance, thereby minimizing the need for special permits when residents make improvements to their properties. To accomplish that goal and to address concerns from neighbors that the Overlay District would lead to development along the Fort Meadow Reservoir, we offer the enclosed revisions to the proposed Red Spring Road Overlay District. Below is a summary of the proposed revisions: • Location of Overlay District: Revisions to proposed Section 650-50.B and Exhibit A provide that the Overlay District would exclude an area of approximately 10 acres, which is currently held as condominium common area. This area would remain subject to the underlying A-2 Zoning District and not the modified dimensional requirements of the Overlay District. • Cap on Exclusive Use Areas: Revisions to proposed Section 650-50.E caps the total number of exclusive use areas in the Overlay District at the existing number of 29. This change restricts {Client Matter 33621/00001/A8518923.DOCX}  MIRICK O’CONNELL Marlborough Planning Board November 9, 2023 Page 2 the number of principal structures along the lake and limits the area that would be subject to the Overlay District’s modified dimensional controls. While there are no plans to do so, any new building lots formed within the Overlay District would be subject to the underlying A-2 Zoning District. • Setback from the Lake: Revisions to proposed Section 650-50.E.3 provide that setbacks along Fort Meadow Reservoir are subject to the Floodplain and Wetland Protection District, Section 650-23. That was always intended, but the additional language clarifies the point. We believe these changes address concerns raised by neighbors at the public hearings while still allowing Red Spring Road owners to carry out improvements to their properties without disproportionate permitting. Thank you for your ongoing attention to this matter. Sincerely, Brian R. Falk BRF/ cc: Marlborough City Council Client {Client Matter 33621/00001/A8518923.DOCX} ORDERED: Be it ordained by the City Council of the City of Marlborough that the Code of the City of Marlborough, as amended, be further amended by adding a new §650-50, Red Spring Road Overlay District, as follows: §650-50 – RED SPRING ROAD OVERLAY DISTRICT A. Purpose and Objectives. The Red Spring Road Overlay District (“RSR”) allows the application of supplemental land use controls within the boundaries of a certain overlay district as an alternative to land use controls that exist in the underlying districts. The establishment goals of the RSR are to encourage improvements to existing structures and regulate modifications to a unique lakeside residential community. B. Location of RSR; Underlying Zoning. 1. For the purposes of this Section (§650-50 et. seq.), the RSR is located on the southerly side of Fort Meadow Reservoir along Red Spring Road between Reservoir Street and Cullinane Drive containing approximately 50 40 acres as indicated on the City Zoning Map and more particularly described in Exhibit “A” annexed hereto and incorporated by reference herein. 2. Except as specifically provided herein, the provisions of the Zoning Ordinance relating to the underlying zoning districts not otherwise impacted by this Section (§650-50 et. seq.) shall continue to remain in full force and effect. In the event of any conflict between the provisions of this Section (§650-50 et. seq.) and any other provision of the Zoning Ordinance, the provisions of this Section (§650-50 et. seq.) shall govern and control. C. Authority of Permit Granting Authority. 1. The City Council shall be the special permit granting authority in the RSR. 2. At the request of an applicant, the City Council may elect to vary the dimensional, parking, design, and landscaping requirements applicable to a use or structure by special permit upon finding that such change shall result in an improved design and will not nullify or substantially derogate from the intent or purpose of this Section (§650-50 et. seq.). D. Use Regulations. 1. The following uses are permitted as of right in the RSR: a. Single-family dwellings. b. Up to one (1) boat club. Page 1 of 3  c. Uses allowed as of right in the underlying zoning district, as set forth in the Table of Use Regulations. d. Accessory buildings and accessory uses. 2. Uses allowed by special permit in the underlying zoning district may be allowed by special permit in the RSR. 3. All uses not specified in Subsection Section 650-50.D.1 and Subsection Section 650- 50.D.2 above shall be deemed prohibited in the RSR. E. Dimensional Regulations for Lots in a Condominium Form of Ownership. 1. Within the RSR, multiple principal and accessory buildings and uses may be located on the same lot under a condominium form of ownership, provided that: (i) each principal building shall be located within an exclusive use area of at least 8,000 square feet, (ii) there shall be no yard setbacks or landscaped strips required as to exclusive use areas or minimum distances between structures, (iii) any building permit application for a new structure or expansion of an existing structure shall be accompanied by evidence that such work is authorized by the governing condominium organization, and (iv) the maximum number of exclusive use areas in the RSR shall be 29. 1.2.Notwithstanding any provisions of the Zoning Ordinance to the contrary, developmenta lot under a condominium form of ownership in the RSR shall be subject to the following dimensional standardsrequirements: a. Minimum Lot Area: 18,000 square feet. b. Minimum Lot Frontage: none. c. Minimum Front, Side, and Rear Yards: none (See Section 650-50.E.23). d. Maximum Building Height: 2 ½ stories. e. Maximum Lot Coverage: 30%, over the entire RSR. f. Maximum Gross Floor Area of a Single-Family Dwelling: 3,000 square feet. 2.3.With the exception of structures erected prior to July 1, 2023, all structures on a lot under a condominium form of ownership in the RSR shall be set back a minimum of 15 feet from the RSR district boundary line, excluding the boundary line adjacent to the Fort Meadow Reservoir, subject to Section 650-23 of the Zoning Ordinance. 3. Within the RSR, multiple principal and accessory buildings and uses may be located on the same lot under a condominium form of ownership with each principal building located within an exclusive use area of at least 8,000 square feet, and there shall be no yard setbacks or landscaped strips required as to exclusive use areas or minimum Page 2 of 3  distances between structures, provided that any building permit application for a new structure or expansion of an existing structure shall be accompanied by evidence that such work is authorized by the governing condominium organization. F.4. Parking Requirements. Parking for single-family dwellings and boat clubs on a lot under a condominium form of ownership in the RSR shall be provided as feasible. Parking for other uses within the RSR shall conform with the provisions of §650- 48.A of the Zoning Ordinance. G.5. Driveways and Roadways. Driveways and roadways located withinserving a lot under a condominium form of ownership in the RSR shall be maintained to provide safe access and egress for vehicular and pedestrian traffic and emergency services, but shall not be subject to the design standards set forth in §650-49 of the Zoning Ordinance or subdivision standards. F. Dimensional Regulations for Other Lots. Lots not under a condominium form of ownership in the RSR shall be subject to the dimensional requirements of the underlying zoning district. EXHIBIT A The Red Spring Road Overlay District shall include the following parcels of land (herein identified by the Assessors’ Map and Parcel Number): consist of  Assessors Map 30, Parcel 10, with the exception of a portion of said parcel with an area of approximately 10 acres, as shown on the plan entitled “Plan of Land to be Excluded from ‘The Red Spring Road Overlay District’ ” dated November 8, 2023. Page 3 of 3  Attachment B Who We AreOverview PulteGroup - Nationally • Unmatched Experience Pulte Brands Pulte Geographical Presence • National Homebuilder Reserve at Robin Hill • Diverse Product and Buyer at 582 Robin Hill Street • Robust Financing Capabilities Planning Board Meeting November 13, 2023 HOME SALE HOME CLOSINGS ACQUISITION & REVENUES ($M) DEVELOPMENT 3,488 28,894 29,111 SPEND ($M) 3,032 23,107 23,232 24,624 2,554 4,300 4,500 4,000 2,188 2,800 3,100 2019 2020 2021 2022 2023 Q1 2020 Q1 2021 Q1 2022 Q1 2023 2018 2019 2020 2021 2022 (Exp.) Who We Are - Locally Where We Are - Locally # Active Community Details 2 1 Upton Ridge (Upton) 139 Homes – 55+ Community Pulte Homes 200 Homes – 62+ Community; SF and 4-story Andover 2 Riverside Woods (Andover) 3 low rise buildings Del Webb Martins Landing (North 502 Homes – 55+ Community; 4 and 5-story North Reading Pulte Homes of New England is a wholly owned entity of 3 Reading) low rise buildings PulteGroup, which is a publicly traded national home builder with 10 Cold Brook Crossing - Emery 81 Homes – 55+ Community; THs and 4-story 26 divisions throughout the United States. 4 (Sudbury) low rise buildings Woburn 4 5 Cold Brook Crossing - Marlborough Pulte Homes of New England is completely self-funded. We have 5 Preston (Sudbury) 92 Homes – THs Sudbury Boston no equity partners, banks, financiers, or institutional lenders. Chauncy Lake 700 Homes – 55+ Community; 4-story low 6 6 Westborough (Westborough) rise buildings Pulte entered the New England housing market in 1994 and has Pennington Crossing 186 Homes – 55+ Community; 4-story low 8 9 been a consistent area leader in home building throughout 7 Grafton (Walpole) rise buildings 1 eastern Massachusetts. Our management team at Pulte Homes of 8 Woodland Hill (Grafton) 46 Homes – SF detached homes Upton Walpole New England has acquired, permitted, developed, marketed, and 7 sold over 8,000 homes in the New England market. 105 Homes – THs and 4-story low rise 9 Winslow Point (Grafton) buildings 197 Homes – THs and 4-story low rise 10 Highland at Vale (Woburn) buildings  Our Team Location Project Site Site Design and Civil/General Engineering Project Site Legal Services Hillside Natural Resource Evaluation, Identification, and Analysis School Transportation Impact Analysis Utility Infrastructure Analysis and Design Location Basics Project Basics • More than 1/3 of the site • ±28 acres remains undisturbed • 55+ Housing • ±25% lot coverage • Home Ownership • (3) 50-unit buildings Hillside • Parking under School • (57) Townhomes HILLSIDE • Clubhouse SCHOOL • Amenities Proposed Utility Plan Amenities Pulte Renderings Project Utilities • Water: Internal water mains connecting at Robin Hill St • Sewer: Internal force main system connecting at Jacobs Rd • Clubhouse w/indoor and outdoor gathering space • Pickleball courts • Pedestrian connectivity • Secure and weather-protected bike parking • Exterior bike parking Sustainability Pulte Renderings Conceptual Architecture Pulte Renderings REDUCE FOSSIL ENERGY EFFICIENT WATER CONSERVATION LOW IMPACT FUEL DEPENDENCY BUILDING DEVELOPMENT Project Examples - Exterior Project Examples - Interior Pulte Renderings Q&A  Attachment C LURIE FRIEDMAN LLP ONE MCKINLEY SQUARE BOSTON, MA 02109 HARLEY C. RACER 617-367-1970 hracer@luriefriedman.com November 8, 2023 By Email and U.S. Mail Sean N. Fay, Chair Marlborough Planning Board 135 Neil Street 2nd Floor Marlborough, MA 01752 Michael H. Ossing, President Marlborough City Council 140 Main Street 2nd Floor Marlborough, MA 01752 Re: Proposed Zoning Amendment to Chapter 650 “Zoning” to amend §22 “Retirement Community Overlay Districts” and the Public Hearing on November 13, 2023 Dear Mr. Fay and Mr. Ossing: This firm represents Hillside School (“Hillside”) at 404 Robin Hill St., Marlborough in relation to the Proposed Zoning Amendment to Chapter 650 “Zoning” to amend §22 ‘Retirement Community Overlay Districts” to include Map 39, Parcels 5 and 26B on Robin Hill Street (“Zoning Amendment”). We write to express our serious concerns with the Zoning Amendment and to bring to the attention of the Planning Board and the City Council procedural defects which would render it a nullity as well as the citywide implications that this major rewrite of Marlborough’s Ordinances would have. The Planning Board and the City Council must remove the Zoning Amendment from their respective agendas unless and until the legal defect – initiation by a nonlandowning corporate entity – is cured. Short of that, any public hearing on the Zoning Amendment must be continued in order for the citizens of Marlborough and all relevant Boards, Committees and Departments to review the major changes to the City’s laws being requested and to determine if these changes are in the best interests of the City of Marlborough and its citizens. 1. The Zoning Amendment is legally defective because it was initiated by a non- landowner corporate entity in violation of state and local law. The Zoning Amendment is legally defective because it was initiated by non-landowner, Pulte Homes of New England LLC (“Pulte”), the prospective buyer of the parcels targeted for LURIE FRIEDMAN LLP Sean N. Fay Michael H. Ossing November 8, 2023 Page 2 the Retirement Overlay District. See Brian Falk letter dated September 7, 2023, attached as Exhibit 1. Mr. Falk states that he represents Pulte, the prospective buyer, not the landowner. The governing statute is clear: Zoning ordinances or by-laws may be adopted and from time to time changed by amendment, addition or repeal, but only in the manner hereinafter provided. Adoption or change of zoning ordinances or by-laws may be initiated by the submission to the city council or board of selectmen of a proposed zoning ordinance or by-law by a city council, a board of selectmen, a board of appeals, by an individual owning land to be affected by change or adoption, by request of registered voters of a town pursuant to section ten of chapter thirty-nine, by ten registered voters in a city, by a planning board, by a regional planning agency or by other methods provided by municipal charter. M.G.L. c. 40A, §5 (emphasis added). Marlborough Ordinance § 650-60 tracks the statute: “This chapter may be amended from time to time at a City Council meeting. An amendment may be initiated by the submission to the City Council of a proposed change by . . . an individual owning land in the City to be affected by the amendment, 10 registered voters in the City, the Planning Board and the Metropolitan Area Planning Council.” (emphasis added). Pulte does not own the land in the City to be affected. Mr. Falk’s Letter references a “letter of authorization” to claim that “the owner of this land requests” the Zoning Amendment. However, the letter of authorization does not authorize Mr. Falk to request the Zoning Amendment on behalf of the landowner. Rather, the landowner, Denali Belle, LLC, “authorizes Mirick O’Connell, on behalf of Pulte Homes of New England, LLC, to submit” the Zoning Amendment, not on behalf of the current landowner. See Letter of Authorization, attached as Exhibit 2 (emphasis added). If there were any doubt as to who the proponent is, that doubt was removed at the City Council’s hearing on October 23, 2023 where Mr. Falk stated that he was appearing “on behalf of Pulte Homes of New England” and then in response to a question from a Councilor on potential uses of the site, Mr. Falk repeated that he is “representing Pulte, a potential buyer of this site” and he “can’t speak to the current owner and what other options they may have” but that “the property is certainly for sale”. See video of October 23, 2023 City Council hearing, at timestamps 0:11:04 and 1:15:50, https://play.champds.com/marlboroughma/event/690. Pulte Vice-President, Mark Mastroianni, then made clear that the Pulte’s acquisition is conditional, saying that if Pulte cannot build this proposed project, the seller may take other options, and “it wouldn’t be Pulte Homes developing”. Id. at timestamp 1:25:30 Because Pulte is not the landowner, it is a violation of M.G.L. c. 40A, §5 and Marlborough Ordinance § 650-60 for the Planning Board and the City Council to even consider the Zoning Amendment, much less act upon it. Indeed, any action on the Zoning Amendment would be invalid. See Bellingham Massachusetts Self Storage, LLC v. Town of Bellingham, 101 LURIE FRIEDMAN LLP Sean N. Fay Michael H. Ossing November 8, 2023 Page 3 Mass. App. Ct. 1108 (2022) (because the proponent “did not own land in the affected area, he was not authorized to initiate the zoning amendment as an individual” and the amendment was invalid). Moreover, because the current landowner is not an “individual” but a corporate entity, Denali Belle, LLC, this Zoning Amendment could only be initiated through the provision in the statute and the Ordinance which provides that ten registered voters of Marlborough can initiate such a change, because the purpose of this provision is “to ensure that any amendment proposed by registered voters has a modicum of support before it can be placed before a planning board.” Id. (emphasis in original). Accordingly, the Zoning Amendment is not properly before the Planning Board or the City Council and must be removed from the November 13, 2023 Agenda. 2. The Zoning Amendment is a complete re-write of Marlborough’s Ordinance by a developer, not based on any study, survey or City need. If the Planning Board and/or the City Council make the ill-advised decision to consider the Zoning Amendment despite the fatal legal defects, it must continue any hearing and delay any action on the Zoning Amendment to provide time for the citizens of Marlborough and the various City Boards, Committees and Departments to review, digest and comment on the major changes proposed. The Zoning Amendment’s changes would have long-lasting and far-reaching implications for the entire City. To be clear, Pulte is not simply requesting a special permit or a variance or approval for a project. Pulte is asking the City for a entire revision of the City’s laws. The Zoning Amendment would cause drastic changes to the number, size, scope and location of retirement communities throughout Marlborough. These changes would apply to the entire City, not just to Robin Hill Street. Just some of the proposed changes if the Zoning Amendment passed are as follows: • Retirement Community developments could be large scale combinations – a mix of townhouses, multifamily apartments and various amenities – throughout the entire City. Currently, the only permissible new retirement community developments that can be added to the Zoning Map are townhouse neighborhoods. • Multifamily developments and mixed detached/multifamily developments could be located in any Limited Industrial (“LI”) District or Industrial (“I”) District whereas now the only location for a multifamily development is the one already existing near the Fitchburg Street intersection with Route 85/290 Connector Road. This would allow massive developments – mini-cities – including multiple four-story apartment buildings, dozens of town homes, four story clubhouses any number of amenities, which could include a pharmacy, chapel, theater, library, LURIE FRIEDMAN LLP Sean N. Fay Michael H. Ossing November 8, 2023 Page 4 gift shop, convenience store, beauty salon, barbershop, banking services, offices, third-party vendor services and recreation facilities in any LI or I district in the City. See Exhibit 3 comparing the current permissible location of a Retirement Community Overlay – Multifamily to the area that would be permissible under the Zoning Amendment. • Multifamily developments and mixed detached/multifamily developments could be constructed within 100 feet of any non-municipal road, i.e. interstates and state highways. Currently, multifamily developments are prohibited within 100 feet of all public roads. • Multifamily buildings could be four stories high with no limit on total building height. Currently, the multifamily buildings are limited to three stories and subject to other height limitations. • It would also increase the number of units per acre permissible in a retirement community and increase the total area per multifamily unit in a retirement community. • It would improperly empower the City Council to make changes to the Zoning Map Overlay, add any conditions and allow any variances for retirement community development – all powers that the City Council does not currently hold. These significant changes should not be considered when not initiated by the proper bodies and in response to actual City need. There has been no study, no survey and no expert report by any City body or agent to suggest that these changes are in any way warranted, desirable, necessary or even beneficial to the City and its citizens. In fact, it is clear that these changes would be bad for the City. The City’s laws cannot be written ad-hoc by national developers for their own pet project and for their own benefit with no consideration for the effect on the City. 1 3. The Zoning Amendment is bad for the Robin Hill Street Community. The Zoning Amendment would clear more than 28 acres of currently undeveloped wooded land to be converted to a massive complex of over 60 buildings, including a clubhouse 1 While the effect would be widespread, the open recognition that the singular objective of the Zoning Amendment is to benefit Pulte, the potential buyer, confirms that this is illegal “spot zoning”. Spot zoning occurs “where one lot or a small area has been singled out for treatment less onerous than that imposed upon nearby, indistinguishable properties.” W.R. Grace & Co.-Conn. v. City Council of Cambridge, 56 Mass. App. Ct. 559, 569 (Mass. App. Ct. 2002) (“It is unlawful to invoke the zoning power solely to confer an economic benefit (or impose an economic detriment) upon the owner of a comparatively small area within a zoning district when the remaining parcels of that district are treated differently”). LURIE FRIEDMAN LLP Sean N. Fay Michael H. Ossing November 8, 2023 Page 5 and an unknown number of amenities, wedged between the narrow road of Robin Hill Street and I-290 – a development which is not permissible under the current zoning ordinances. This would have a significant impact on the community and would be, in effect, a mini- city on Robin Hill St., including multiple four story apartment buildings, dozens of town homes, a four story clubhouse any number of amenities, which could include a pharmacy, chapel, theater, library, gift shop, convenience store, beauty salon, barbershop, banking services, offices, third-party vendor services and recreation facilities. This would be a major increase in congestion, development and traffic on this small street, a significant loss of trees and open space and is completely out of character with the current area. Hillside School and surrounding neighbors are strongly opposed to this drastic change, which is out of character for the area. There has been no traffic or safety study to determine if the narrow Robin Hill Street could even support such a massive development. The Planning Board and City Council should not permit such a drastic change in this area before it has conducted careful review and study of its impact. 4. Wetland impacts of the Zoning Amendment should be understood and considered first. At the City Council’s hearing on October 23, 2023, Pulte conceded that the development plans presented were in the early stages and that any potential development would change for a variety of reasons, including, notably the presence of wetland resources on site. The wetland resources on the site have not been fully identified or analyzed but a preliminary review of MassGIS data identifies wetland resources on several areas of the parcel, including in an area currently designed for an access road to the easternmost part of the development. Additionally, the development is designed for an area near and in the vicinity of the Millham Reservoir and the North Branch Brook – areas owned by the City for drinking water purposes. In fact, immediately across the street and on the south side of Robin Hill Road are signs noting that this land is owned and managed by the City for water protection purposes. The proposed project would remove acres of forest and replace it with as yet an undetermined amount of impervious surface – a major contributor to stormwater pollution and across the street from lands set aside for water resource protection. Before proceeding with such a dramatic change, particularly since Pulte’s acquisition of the site is contingent on its plans, there should be an opportunity to consider the possible impacts of this project, and especially in light of important community goals, including watershed protection. LURIE FRIEDMAN LLP Sean N. Fay Michael H. Ossing November 8, 2023 Page 6 5. The Zoning Amendment would need a two-thirds majority at City Council to pass. Finally, Mr. Falk claims that this Zoning Amendment would require only a simple majority to pass City Council rather than a two-thirds majority. See Ex. 1. This is incorrect. Pursuant to M.G.L. c. 40A, §5, all zoning amendments require a two-thirds vote with limited exceptions. Mr. Falk relies on exception subsection (2)(a) that provides allows a simple majority for “an amendment to a zoning ordinance or by-law to allow by special permit: (a) multi-family housing or mixed-use development in an eligible location”. First of all, the Zoning Amendment would do more than amend the ordinance to allow a special permit for multi-family uses, i.e. changing the Zoning Map to add two parcels to the Retirement Community Overlay District, empower the City Council to make further changes to the Overlay District Zoning Map, and change the size and number of units permissible in the Retirement Community developments. But the assertion that the simple majority exception is effective because the subject parcels on Robin Hill Street are in an “eligible location” is misleading. “Eligible location” is defined in M.G.L. c. 40A, § 1A as: areas that by virtue of their infrastructure, transportation access, existing underutilized facilities or location make highly suitable locations for residential or mixed use smart growth zoning districts or starter home zoning districts, including without limitation: (i) areas near transit stations, including rapid transit, commuter rail and bus and ferry terminals; or (ii) areas of concentrated development, including town and city centers, other existing commercial districts in cities and towns and existing rural village districts. The parcels are not in an area of concentrated development nor do they meet any of the other criteria. The area is bounded by I-290 to the north - without any access to I-290; to the west by Hillside School’s large undeveloped, wooded property; to the south by the narrow Robin Hill Street and to the west by a river. It stretches to credulity to suggest that it is “close to Donald Lynch Boulevard” and developments near it. Furthermore, the Zoning Amendment, as discussed, is not limited to the parcels at Robin Hill Street, but would be citywide. The entire City is certainly not an “eligible location”. Accordingly, if the City Council ever votes on the Zoning Amendment, it would require a two-thirds vote. If there is any uncertainty the Planning Board and/or City Council should request an advisory opinion on whether the citywide Zoning Amendment qualifies as an eligible location from the Office of Economic Development at https://www.mass.gov/forms/request-an-advisory-opinion-on-ch40a-eligible-locations. Please circulate this letter amongst all members of the Planning Board and the City Council in advance of the hearing scheduled for October 23, 2023. Please also confirm that Zoning Amendment will be removed from the Agenda by close of business October 23, 2023. If the matter is not pulled before the Planning Board hearing, I intend to appear at the hearing alongside my client to speak in opposition to the Zoning Amendment. LURIE FRIEDMAN LLP Sean N. Fay Michael H. Ossing November 8, 2023 Page 7 Very truly yours, /s/Harley C. Racer Harley C. Racer cc: Jason Grossfield, Esq., City Solicitor Jeremy McManus, Asst. City Solicitor Traffic Commission Conservation Commission  Attachment D Ed Chase, Headmaster at Hillside School 404 Robin Hill Street First Standard: Is the proposed change in keeping with the character of the neighborhood? Response: Absolutely not. The Pulte Development would destroy the character of the community through: • Deforestation of up to 25 acres of pristine woodlands and wildlife in their natural habitat • Create of a major traffic safety risk on a hazardous road • Allow mixed-use housing, including 4-story structures with no height limit • Create of a mini-city with amenities not in keeping with the bucolic character of the neighborhood The Robin Hill Street neighborhood is a bucolic setting defined by a scenic road. This road is only 17 ½ feet wide (at the entrance to Hillside School) and includes historic structures, such as the school’s 75 year old chapel. It is also a watershed area for the City's drinking water and the location of a reservoir. The City owns a long and wide swath of land on Robin Hill Street to protect the reservoir from pollution and runoff. The neighborhood is a tree-lined forested area that is sparsely settled. The proposed project would cut down up to 25 acres of trees in an area containing wetlands. The neighborhood is currently a model for preservation. Hillside School sits on 140 acres of woodlands, most of which are preserved. In short, this area is closer to a nature preserve than a massive mixed use housing development – which would be totally out of character. When Pulte was asked why they had to deforest up to 25 acres, their response was “it is a necessary evil.” Second Standard: Does the proposed change negatively impact the neighbors? Response: Absolutely. The development dramatically increases the risk of traffic fatalities on an already very dangerous road. Hillside students and staff cross the street multiple times per day, as several campus residences and the school chapel are located across from our main campus – it is a hazardous street to cross at present and the increase in traffic could have tragic consequences. One city councilor commented that she would not drive on Robin Hill Street with her children in the car because it is so dangerous. The proposed development would also lead to a significant increase in traffic – with up to 1,000 car trips per day, including many construction vehicles. The Jacobs Street neighborhood (located directly across the street from the proposed Pulte development entrance) would become even more of a cut-through, which would be especially dangerous and devastating for this small community. The neighborhood is made up of single family homes and the zoning change would allow multi- family, 4-story apartments, with no height restrictions and amenities such as a pharmacy, theater, gift shop, convenience store, and more on Robin Hill Street. The fabric of our community would be irreparably destroyed by such a dramatic change to our landscape. Third Standard: Does the proposed change benefit the City, or provide a use not permitted elsewhere? Response: In net, the proposed change does not benefit the city, in fact it does just the opposite. It is a net negative for these primary reasons: • Creates a major safety hazard. • Turns scenic Robin Hill Street into a mini-city, with mixed-use/multi-family units and amenities which could include a pharmacy, theater, convenience store, bank, offices and more. • Triggers a city-wide zoning change allowing more automatic approval of other future projects that would currently be disallowed by zoning requirements. • Potentially impacts the City water supply and destroys preserved greenspace. • Has virtually no benefit to Marlborough’s 55+ community, as most units in the proposed development will be priced in the $500-800K range, above the $487K three-year average selling price of Marlborough homes. • Has no significant impact on the City from a financial standpoint. The developer will reap an estimated $100 million in revenue, while the city is likely to net less than $1 million per year (representing ½ of 1% of the City’s FY24 budget). Fourth Standard: Is the proposed change in keeping with the intent and purposes of the City’s zoning ordinances? Response: No. The purpose of the Zoning Ordinance is to promote the health and welfare of the City’s inhabitants, protect water and other public services, avoid undue concentrations of population, and encourage the most appropriate use of land. This proposal is a complete rewrite of the City’s ordinances by a developer. It is not based on any need or benefit to the City, its citizens, or its neighborhoods. Furthermore, Pulte is asking for an entire revision of the City’s laws, not just a special permit – which is significant in itself. The Zoning Amendment’s changes would have far-reaching implications for the entire City. If approval is granted, some changes would include: • Retirement Community developments could be large scale combinations – a mix of townhouses, multifamily apartments and various amenities – throughout the entire City. • Massive developments – mini cities – including multiple four-story apartment buildings, dozens of town homes, four-story clubhouses, and countless amenities. • Multifamily developments and mixed detached/multifamily developments could be constructed within 100 feet of any non-municipal road. • Multifamily buildings could be four stories high with no limit on total building height. There has been no study, no survey, no master plan and no expert report by any City body or agent to suggest that these changes are in any way warranted, desirable, needed or beneficial to the City and its citizens. The City’s laws cannot be re-written ad-hoc by national developers for their own pet project and for their own benefit with no consideration for the effect on the City. Sincerely,Ed Chase 1:16  Attachment E Katlyn LeBold From: Arlene Stetson <laceybugtd@comcast.net> Sent: Monday, November 13, 2023 2:17 PM To: Katlyn LeBold Subject: overlay for retirement community You don't often get email from laceybugtd@comcast.net. Learn why this is important from Arlene Stetson 603 Robin Hill St I would like to share concerns I have about this project. Robin Hill St is a designated scenic road, that in itself should say something. We have been residents of Marlborough for 40 years and love the area we live in. We have seen many changes over the years, obviously. The mall was built, Apex was built and the sports center was built and enlarged. All of this has created more traffic on our road. The proposed development is inconceivable with the amount of additional cars it would create on the road daily, not to mention construction vehicles, movers, and multiple vendors that would service the area if built. There are protected species in that area, which is extremely important. Once deforestation takes places, you can't ever replace it as it was. There will never be as much green space due to hardscape and buildings. If we haven't learned anything yet about what climate change means maybe now is the time we should. The trees that are there now help to create a sound barrier from 290. You can tell a difference in the noise level from 290 in the late fall and till late spring when the leaves are back on the trees. If those trees aren't there, it will be worse. I strongly oppose this project, as I have stated at other meetings. This is only a brief statement. I had planned to be there tonight, however, due to the fact that my husband is in a Boston hospital and I have to be with him, I will not be able to attend. Quality of life for current residents should be important and count. I am passionate about this issue and voicing my concerns, above are only a few. Thank you for your time and consideration. Arlene Stetson 1  Attachment F DAY PITNEY LLP MEMORANDUM One Federal Street, 29th Floor Boston, MA 02110 T: (617) 345-4777 F: (617) 206-9339 Boston Connecticut Florida New Jersey New York Providence Washington, DC TO: City of Marlborough City Council Urban Affairs Committee FROM: William M. Pezzoni CC: Trammell Crow Company and Goulston & Storrs DATE: November 13, 2023 RE: Memorandum regarding Application of Simple Majority Approval Thresholds under M.G.L. c. 40A, §§ 5 and 9 This memorandum analyzes why (i) the Proposed Amendment to Zoning Ordinance Article VI, Section 650-39A: Sasseville Way Residential Overlay District (the “Zoning Amendment”) of Chapter 650 of the Marlborough Zoning Ordinance (the “Zoning Ordinance”) to create the Sasseville Way Residential Overlay District (“SWROD”) may be approved by simple majority vote of City Council, and (ii) a special permit for certain uses in the SWROD, as drafted in Section 1.B.1 “Authority of Permit Granting Authority” of the Zoning Amendment, may be approved by simple majority vote of the applicable permit granting authority. A. BACKGROUND Trammell Crow Company (together with its affiliates, the “Developer”) is proposing to add a new Section 39A to the Zoning Ordinance to create the SWROD within 23.3 acres of property located along Sasseville Way in the City of Marlborough (“City”), Massachusetts, Assessors’ Map and Parcel Number 29-23 (the “Property”). Specifically, the Developer is proposing to develop: (i) seven (7) multifamily apartment buildings, ranging in height from three (3) to four (4) stories with basement levels that walk out to grade at the rear of the buildings, and containing approximately 286 residential units, (ii) approximately 551 parking spaces in surface lots, two (2) freestanding garages, and garages located within residential buildings, (iii) up to approximately 8,000 square feet of space for retail or a single restaurant user, and (iv) clubhouse/leasing office space (collectively, the “Project”). On July 12, 2023, the Developer petitioned City Council to adopt the Zoning Amendment. After receiving feedback in connection with public hearings before City Council, Conservation Commission, and Planning Board, as well as numerous discussions with neighboring residents and City officials, the Developer submitted certain proposed modifications to the Zoning Amendment text to the Planning Board on November 7, 2023. One of the rezoning language modifications is that a development proceeding under the SWROD will be required to receive a special permit and comply with the requirements of § 650-59 et seq. of the Zoning Ordinance. Specifically, Section 1.B.1 of the Zoning Amendment states: The City Council shall be the permit granting authority for special permit and site plan approval in the SWR Overlay District. In all instances, (i) a development which 117194299.3  proceeds under the SWR Overlay District is subject to site plan approval in accordance with § 270-2 of the Marlborough City Code and (ii) an application for a special permit for a use in the SWR Overlay District shall comply with the requirements of § 650-59 of the Zoning Ordinance, with the exception that the City Council shall be the permit granting authority for special permit and site plan approval in the SWR Overlay District and the voting threshold shall be a simple majority, in accordance with Massachusetts General Laws c. 40A, § 9. (Emphasis added.) An analysis of Massachusetts General Laws (“M.G.L.”) c. 40A, §§ 5 and 9 and their application to the Zoning Amendment is set forth below. B. ZONING AMENDMENT VOTING THRESHOLDS UNDER M.G.L. c. 40A, § 5 Massachusetts home prices have increased at the fastest rate in the nation and rent prices rank among the highest in the county.1 In order to respond to this housing crisis and to encourage the development of new and diverse housing choices, the Commonwealth enacted the Economic Development Legislation of 2020, Chapter 358 of the Acts of 2020. This legislation’s purpose is to facilitate housing production and implement zoning best practices to bring the Commonwealth in-line with current practice in most states.2 Specifically, this legislation amended M.G.L. c. 40A (the “Zoning Act”) to (i) to reduce the voting threshold required to enact certain kinds of zoning ordinances and bylaws from a two-thirds supermajority to a simple majority and (ii) to reduce the voting threshold required to grant certain kinds of special permits. As it relates to enacting zoning ordinances, amended Section 5 of the Zoning Act states in part: “[T]hat the following shall be adopted by a vote of a simple majority of all members of the town council or of the city council where there is a commission form of government […] an amendment to a zoning ordinance […] to allow by special permit: (a) multi-family housing or mixed-use development in an eligible location […].” (Emphasis added.) The Zoning Amendment meets the criteria outlined in M.G.L. c. 40A, § 5, as discussed in further detail below. C. THE ZONING AMENDMENT MEETS THE SIMPLE MAJORITY CRITERIA The Zoning Amendment may be approved by simple majority vote of City Council, rather than a two-thirds vote, because the Zoning Amendment meets the threshold requirements set forth in M.G.L. c. 40A, § 5. First, M.G.L. c. 40A, §1A defines “multi-family housing” as “a building with 3 or more residential dwelling units or 2 or more buildings on the same lot with more than 1 residential dwelling unit in each building.” Section 1A also defines “mixed-use development” as a 1 MassHousing, Housing Choice Initiative 1 (2022). 2 Id. 117194299.3 -2- 4859-3257-6144, v. 1 development containing a mix of residential uses and non-residential uses, including, without limitation, commercial, institutional, industrial or other uses.” Section 1.A.1 of the Zoning Amendment explains that the purpose of the SWROD, in part, is to provide for the development of mixed use multi-family housing developments. Section 1.D.1 of the Zoning Amendment includes multifamily housing and certain enumerated business uses in the list of eligible uses that are permitted by special permit in the SWROD. Here, the Developer is proposing to develop seven (7) multifamily apartment buildings with approximately 286 residential units on one lot as part of the Project, as well as parking, space for retail or a single restaurant user, clubhouse/leasing office space, and certain other residential amenities, which Project squarely fit within the definition of a “mixed-use development.” Therefore, the Zoning Amendment would allow a multi-family housing or mixed-use development by special permit and meets the use requirement in M.G.L. c. 40A, § 5(2). Second, M.G.L. c. 40A, §1A defines “eligible locations” as “areas that by virtue of their infrastructure, transportation access, existing underutilized facilities or location make highly suitable locations for residential or mixed use smart growth zoning districts or starter home zoning districts, including without limitation: (i) areas near transit stations, including rapid transit, commuter rail and bus and ferry terminals; or (ii) areas of concentrated development, including town and city centers, other existing commercial districts in cities and towns and existing rural village districts.” (Emphasis added.) Here, the SWROD is located in an area near transit stations. The Property will have direct access to the Assabet River Rail Trail. The Assabet River Rail Trail connects to Lincoln Street in the south and is only a few blocks from the South Bolton/Main Street bus stop where MetroWest Regional Transportation Authority (“MWRTA”) Route 7 can be accessed. There are also two MWRTA buses with stops at Marlborough Hospital that are located approximately 1.5 miles from the Property. Therefore, the Property meets the eligible location requirement in M.G.L. c. 40A, § 5, and the Zoning Amendment may be approved by simple majority vote of City Council. We respectfully request that the Planning Board confirm this determination in its report to City Council. D. SPECIAL PERMIT VOTING THRESHOLDS UNDER M.G.L. c. 40A, § 9 As stated above, the Economic Development Legislation of 2020 also amended the Zoning Act to reduce the voting threshold required to grant certain kinds of special permits. Amended Section 9 of the Zoning Act states in part: A special permit issued by a special permit granting authority shall require a simple majority vote for any of the following: (a) multifamily housing that is located within 1/2 mile of a commuter rail station, subway station, ferry terminal or bus station; provided, that not less than 10 per cent of the housing shall be affordable to and occupied by households whose annual income is less than 80 per cent of the area wide median income as determined by the United States Department of Housing and Urban Development and affordability is assured for a period of not 117194299.3 -3- 4859-3257-6144, v. 1  less than 30 years through the use of an affordable housing restriction as defined in section 31 of chapter 184; (b) mixed-use development in centers of commercial activity within a municipality, including town and city centers, other commercial districts in cities and towns and rural village districts; provided, that not less than 10 per cent of the housing shall be affordable to and occupied by households whose annual income is less than 80 per cent of the area wide median income as determined by the United States Department of Housing and Urban Development and affordability is assured for a period of not less than 30 years through the use of an affordable housing restriction as defined in section 31 of chapter 184; or (c) a reduced parking space to residential unit ratio requirement, pursuant to this section; provided, that a reduction in the parking requirement will result in the production of additional housing units. (Emphasis added.) The Zoning Amendment meets the criteria outlined in M.G.L. c. 40A, § 9, as discussed in further detail below. E. A SPECIAL PERMIT IN THE SWROD MEETS THE SIMPLE MAJORITY CRITERIA The special permit approval threshold proposed under the Zoning Amendment is allowed to be simple majority, rather than a two-thirds vote, because the Zoning Amendment meets the threshold requirements set forth in M.G.L. c. 40A, § 9. First, Section 1.D.1 of the Zoning Amendment includes multifamily housing in the list of eligible uses that are permitted by special permit in the SWROD. Specifically, the Developer is proposing to develop seven (7) multifamily apartment buildings with approximately 286 residential units as part of the Project, which qualifies as “multi-family housing” as defined in M.G.L. c. 40A, §1A. Therefore, the Zoning Amendment meets the multifamily housing use requirement in M.G.L. c. 40A, § 9. Second, the SWROD is located in an area with reasonable connections to transit stations. As discussed above, the Property is bounded by the Assabet River Rail Trail to the south. The Assabet River Rail Trail connects to Lincoln Street in the south, which is only a few blocks from the South Bolton/Main Street bus stop where MWRTA Route 7 can be accessed. There are also two MWRTA buses with stops at Marlborough Hospital that are located approximately 1.5 miles from the Property. The requirements in M.G.L. c. 40A, § 9 should be interpreted through the guidelines entitled “Compliance Guidelines for Multi-family Zoning Districts Under Section 3A of the Zoning Act” issued August 10, 2022, revised October 21, 2022 (“Compliance Guidelines”). The City is designated as an “Adjacent Community” in Appendix 1 “MBTA Community Categories and Requirements” to the Compliance Guidelines. “Adjacent Community” is defined in the Compliance Guidelines as “an MBTA community that (i) has within its boundaries less than 100 acres of developable station area, and (ii) is not an adjacent small town.” The Compliance Guidelines acknowledge that it may not be possible or practical to locate multi-family zoning districts within 0.5 miles of a transit station in Adjacent Communities, and therefore the 117194299.3 -4- 4859-3257-6144, v. 1 Compliance Guidelines do not consider the location requirement M.G.L. c. 40A, § 3A to be “applicable” to Adjacent Communities and said communities may locate the multi-family zoning district anywhere within its boundaries. The eligible location language relating to transit in M.G.L. c. 40A, § 9 mirrors the language in M.G.L. c. 40A, § 3A, so it would be appropriate within an Adjacent Community such as Marlborough to apply the same flexibility with respect to proximity to transit under Section 9 as is applied under Section 3A. As discussed above, the Property has reasonable connections to various transit stations based on existing street conditions, pedestrian connections, and bicycle lanes, especially since the Project will have direct access to the Assabet River Rail Trail. Therefore, the Zoning Amendment meets the transit requirement in M.G.L. c. 40A, § 9. Third, Section 1.E of the Zoning Amendment provides that the affordable housing restrictions set forth in Section 650-26 of the Zoning Ordinance apply to the Project, except that the percentage of dwelling units to be constructed and made available at affordable prices shall be 12% with respect to developments of 20 or more units. Furthermore, Section 650-26(A)(1)(f) of the Zoning Ordinance specifically requires an affordable housing restriction to be imposed for a period of availability of a minimum of 99 years or in perpetuity. The Developer expects that the affordable housing restriction will include a requirement that the affordable units shall be occupied by households whose annual income is less than 80 per cent of the area wide median income, as determined by the United States Department of Housing and Urban Development and as required under M.G.L. c. 40A, § 9. Therefore, the Zoning Amendment exceeds the 10% threshold and otherwise meets the requirements set forth in M.G.L. c. 40A, § 9. Because the Zoning Amendment meets the threshold requirements for use, location, and affordability as set forth in M.G.L. c. 40A, § 9, the special permit approval threshold proposed under the Zoning Amendment, therefore, is allowed to be simple majority. F. CONCLUSION In conclusion, the Zoning Amendment would allow, by special permit, additional multi- family housing, including affordable units, off of Sasseville Way, which Property is located in close proximity to public transportation. Therefore, (i) the Zoning Amendment may be approved by simple majority vote of City Council under M.G.L. c. 40A, § 5 and (ii) a special permit for use in the SWROD, as drafted in the Zoning Amendment, may be approved by simple majority vote of the applicable permit granting authority under M.G.L. c. 40A, § 9.3 If you need any additional information or have any follow-up questions, please do not hesitate to contact us. 3 Note the City does not have to take any action for the amendments to the Zoning Act to take effect as the changes apply automatically to all cities and towns. (See Commonwealth of Massachusetts Executive Office of Housing & Economic Development, Guidance For Local Officials on Determining Voting Thresholds for Zoning Ordinances and Bylaws 4 (2021)). 117194299.3 -5- 4859-3257-6144, v. 1  Attachment G PROPOSED OVERLAY DISTRICT Sasseville Way Residences Proposed 286-Unit Apartment Community Marlborough, MA NOVEMBER 13, 2023 TRAMMELL CROW COMPANY | 2 ZONING AMENDMENTS DENSITY ANALYSIS Property Year Built Units Land Acreage Units/Acre The Burrow 2022 235 10.2 23.1 The Lodge In-Process 240 11.8 20.3 Avalon 2015 473 34.4 13.7 Marlborough SWR TBD 286 23.3 12.3 Talia 2016 225 18.7 12.0 1: We note that this formula is consistent with the definition of “Building Height” in the Zoning Ordinance. TRAMMELL CROW COMPANY | 3 TRAMMELL CROW COMPANY | 4 DRAFT SITE PLAN COMMUNITY VIEWS TRAMMELL CROW COMPANY | 5 TRAMMELL CROW COMPANY | 6 COMMUNITY VIEWS DRAFT LANDSCAPE PLAN TRAMMELL CROW COMPANY | 7 TRAMMELL CROW COMPANY | 8 RENDERINGS RENDERINGS Rear of Clubhouse and Outdoor Amenities Main Entry from Sasseville Way TRAMMELL CROW COMPANY | 9 TRAMMELL CROW COMPANY | 10 THANK YOU