Newton's Wells Avenue 40B Housing Project: Rejected

NEWTON, MA — After nearly four years of litigation and appeals the Wells Avenue 40B housing project is effectively kiboshed after a judge returned a decision siding with the city and the state upholding previous decisions on the developer's appeal.

The gist? Chapter 40B waivers do not trump old deed restrictions on land. As such, the proposed 334-unit Chapter 40B affordable housing development in the Wells Avenue office park will not be.

In its November 17 decision in the Massachusetts Supreme Judicial Court, the judge once again sided with the city and the state and rejected the developer’s assertion that the Zoning Board of Appeals could and should amend a deed restriction that prohibits residential uses on the site of the proposed project.

The Boston-based developer Cabot, Cabot & Forbes via 135 Wells Avenue LLC, purchased the 6.3-acre property for $16.4 million in 2014. Then asked the City Council (then Board of Aldermen) to change the zoning to allow for apartments on the property, which was zoned for manufacturing. Turns out the property was deeded to the town back in the 1960s by Sylvania Electric Products (think: lightbulb manufacturing plant). One of the restrictions of the deed was that it stay zoned for manufacturing. This was well before Chapter 40B was a thing.

When the council didn't waive the deed restriction, the developer tried to offer multi million settlements to the city offered to sweeten the deal with $1.75 million for infrastructure improvements in the area; $1 million to support other affordable housing in Newton; $223,000 in water-sewer mitigation fees, and $170, 226 in tree removal fees. It didn't win over the city.

The developer went to the state Zoning Board of Appeals, which ruled that only the council had the authority to amend the restriction. In 2015 Cabot, Cabot & Forbes appealed to the state Housing Appeals Committee, which upheld the ZBA’s decision. The Boston-based real estate firm then appealed to the Land Court in 2016, which also sided with the ZBA. The latest appeal was in the the Massachusetts Supreme Judicial Court.

Cabot, Cabot & Forbes, has been arguing in court that the ZBA should waive the restriction under Chapter 40B, which is usually a trump card almost guaranteeing that a developer can go around local zoning restrictions if they agree to sett aside 20 percent of a project’s units as affordable.

(For more information on this and other neighborhood stories, subscribe to Newton Patch to receive daily newsletters and breaking news alerts.)

Photo by Jenna Fisher/Patch