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Developer’s proposal for six-story apartment building on Harvard Street tests town’s zoning vision

An architect's rendering of the proposed housing development at 429 Harvard Street. Photo courtesy of Oak Hill Properties.
June 30, 2024
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A developer’s proposal to build a six-story apartment building on the vacant site of a former bank on Harvard Street has frustrated town officials and raised new questions about the role of zoning in shaping Brookline’s housing landscape.

In November 2023, after months of negotiations, Town Meeting overwhelmingly approved a rezoning plan to comply with the state’s MBTA Communities Act, which requires cities and towns near public transportation to create zoning that allows multifamily housing by right, without need for special permission.

At the heart of Brookline’s plan is a rezoning of Harvard Street to encourage the development of multifamily housing up to four stories tall.

Town officials say a proposed 40-unit building at 429 Harvard Street, on the corner of Coolidge Street, flies in the face of that community-led zoning plan.

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But the developer, Oak Hill Properties, might still be able to build at six stories because of Chapter 40b, the state’s so-called “anti-snob” zoning law, which allows developers of mixed-income or affordable housing to override zoning in communities with fewer than 10% of their housing units in the state’s Subsidized Housing Inventory.

Brookline, at 9.86%, is currently just shy of that threshold. Although Kara Brewton, the town’s director of planning, expects Brookline will cross that threshold later this year, it is unclear if that will happen in time for the town to have more control over this project.

In the first step of the 40b permitting process, Oak Hill plans by early August to request a “project eligibility letter” from MassHousing, the quasi-public agency that would finance the project. According to a draft letter to MassHousing, the town’s Select Board is poised to ask the agency to deny the letter in part because of the commitment to affordable housing demonstrated in the rezoning of Harvard Street.

“This is not a blanket opposition to development of the site,” Town Administrator Charles Carey said at Tuesday’s Select Board meeting, which included a public hearing on the Oak Hill proposal. “We want to work with the developer to develop the site to meet the principles that we worked incredibly hard on for months and months as part of the MBTA Communities Act consensus plan.”

Board member Paul Warren, who led negotiations on the rezoning plan last year, put it in starker terms.

“It’s concerning to me, deeply troubling, that the first proposal for Harvard Street is this proposal, that violates everything that the community envisioned and came to agreement on through compromise,” Warren said. “If this were to go forward, I would lose faith in our ability to do zoning, and to be able to work with developers and their lawyers and representatives.”

Jennifer Dopazo Gilbert, an attorney for Oak Hill, told the board that her client considered proposing a four-story building, but the “numbers didn’t crunch” due to the current challenging economics of construction.

“I can understand that there’s a particular sensitivity to this project and that folks were hoping that projects on Harvard Street would proceed under the new MBTA zoning,” Gilbert said. “I certainly respect the time and effort that it took to get that particular piece of zoning passed. But … not much is viable currently due to interest rates, construction costs and the ability to get equity financing.”

The project

Noberto Leon, an architect working with the developer, told the Select Board that Oak Hill proposes to demolish the existing Citizens Bank structure and build a 72-foot high building in its place.

The plan includes retail space on the ground floor and eight apartments on each of the floors above, with a roof deck and nine parking spaces.

“The project seeks to maximize the available square footage on the lot, and so we are going right up to the property line on Harvard Street and Coolidge Street,” Leon said.

Eight apartments in the building would be affordable, available for people making 50% of the area median income and with rents ranging from $1,427 a month for a studio to $2,100 for a three-bedroom apartment, according to Gilbert, the developer’s attorney.

The process

If MassHousing approves a project-eligibility letter, Oak Hill would then file a formal application with the town.

At that point, if enough units currently in the 40b pipeline have qualified for inclusion in the Subsidized Housing Inventory to push the town over the 10% threshold, then the developer would not be able to override local zoning and the Zoning Board of Appeals would have considerably more flexibility in considering Oak Hill’s application.

On the other hand, if the inventory still hovers below 10%, then Oak Hill would be able to override local zoning even if the town meets the 10% threshold later in the permitting process.

Brewton, the town planning director, is also pursuing a little-used alternative path to so-called “safe harbor” status under 40b. In addition to the 10% threshold, communities in which projects on the Subsidized Housing Inventory occupy at least 1.5% of land also qualify as safe harbors. According to Planning Department calculations, Brookline just barely meets the 1.5% mark, Brewton told the Select Board, but she cautioned that the state might not agree.

Neighbors weigh in

Opposition from abutters and neighbors to 40b projects in Brookline is common, and this one is no exception. Of the ten people who testified at the public hearing this week, none spoke in favor of the project.

Fran Perler, a Town Meeting member who lives nearby, said at the public hearing Tuesday that the building is more than twice the height of nearby houses and single-story buildings, and that it would increase congestion in an already crowded neighborhood. She said she’s leading a group of neighbors who will do “everything in their power to block this project unless it is scaled back.”

Lisa Lyman, whose Coolidge Street home abuts the site, said the planned building is “out of scale with the neighborhood,” and would tower over her property, challenging her home’s privacy and sunlight.

“If that plan goes through, it totally makes my trust in government deteriorate,” said Marilyn Rosenbaum, another Coolidge Street resident, who called the plan an “awful, awful proposal.”

Brookline for Everyone, a housing policy group in town that advocates for building more multifamily housing, has not yet weighed in on the project.

Jonathan Klein, a board member for the group, said that he is personally “a little disappointed in the town for opposing the preliminary eligibility letter.”

The town should debate the merits of the project at Zoning Board of Appeals hearings, he said. “I think it’s an eligible site for housing.”

Linda Olson Pehlke, a Town Meeting Member and co-founder of Brookline by Design who was involved in the rezoning negotiations, argued that it’s “not the town’s responsibility to always respond to current economic conditions.”

“We did not create those conditions, and we know they will change in the future. We need to stick to what it is that we want, what the community wanted, and what the community voted for,” she said.

Video: Watch this discussion at the June 25 Select Board meeting, beginning with an explanation of the town’s current 40b status and continuing with discussion of the 429 Harvard Street proposal 

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