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Zoning Board of Appeals Minutes 04/08/08
Hudson Board of Appeals
Town Hall
Hudson, Massachusetts 01749

Minutes of Meeting – April 8, 2008              page 1
Minutes of Meeting— April 8, 2008
The Hudson Board of Appeals met in the Selectmen’s Hearing Room, Town Hall, Hudson, Massachusetts.  At 7:30 p.m., Chairman Lawrence Norris called the meeting to order.
Present:        Lawrence Norris, Joe Peznola, Dorothy Risser, Christopher Tibbals, James Smith, Todd Pietrasiak, Aldo Cipriano, Town Counsel, Teresa Vickery, Clerk and Jennifer Burke, Town Planner.
Petition 2008-03, 248 – 250 Main Street – Modification to Comprehensive Permit
Present was:    Joanne Foley, Atty. at Law, Representing MP Development
                Charles Callahan, Atty. at Law, Representing Esplanade Residents

Lawrence Norris convened the public hearing.
Dorothy Risser read the Right of Appeal.

Mr. Norris began the hearing by reading the petition into the record.  The purpose of this hearing is to modify the comprehensive permit in order to remove the age restriction in an M-3 industrial district.  

Atty. Foley is representing MP Development, LLC.  The applicant is requesting a change to the conditions of the comprehensive permit, which was issued four years ago.  The Esplanade is a 140-unit age restricted development in Hudson that was permitted subject to Mass General Law section 40B and therefore 25% of the units are to be sold as affordable.  Atty. Foley explained that MP Development is a limited dividend organization.  Under the state’s 40B statute they are allowed a profit equaled to 20% of the development costs.  

Atty. Foley explained that the authority of the ZBA is limited when concerning the economics of the project.  She outlined the conditions of the Department of Housing and Community Development (DHCD), one of which is that the project must be financially feasible.  She cited the current conditions of this project as unsustainable.  The development is currently reporting a projected loss of 9.58% of the total development costs.  Atty. Foley argued that if the change to the comprehensive permit was made that the developer could increase sales and reduce the amount of loss to 7.2%.  The data complied four years ago showed that a successful sales pace could be expected and that within 19 months the units would all be sold however did not happen.  

Atty. Foley believes that reasonable and extensive methods of advertising were employed in order to market the Esplanade.  Atty. Foley outlined the methods that were used; they included media, print, billboards, direct mail campaigns as well as the Internet.  

The developer thinks that by lifting the age restriction this would allow the units to sell quicker because buyers over 55 have a home to sell in order to buy a unit where other buyers may not.  Atty. Foley noted the lull in the real estate market.

Atty. Foley addressed the concern for the amount of parking spaces.  She explained that there are 257 parking spaces and the project was permitted with a parking ratio of 1.84 to 1.  The developer has sold 91 units; Atty. Foley calculated that by using this ratio there were 142 parking spaces remaining.  There are 49 empty units, which would make the ratio 2.9 to 1.  

A traffic study was conducted back in 2004 and the developer has requested that the same company, Abend Associates, conduct an updated study.  The initial study did not use standard data for age restricted over 55 units.  Therefore the updated study has not changed dramatically.  

Atty. Foley stated that there would not be any impact to the local schools, citing that the Esplanade is not conducive to children and it would be unlikely that families would move in to the development.

With regards to the parking spaces, Ms. Risser asked if Atty. Foley’s calculations include the designated visitor spaces.  Atty. Foley stated that they were not included.  Mr. Peznola explained that 48 spaces are designated as commercial parking, not the 10 that Atty. Foley referred to.  Mr. Peznola’s concern is that the project could transform itself within the coming years.  He suggested that a study be conducted using the parking needs of the transformed project without regard to the age restriction.  

Mr. Peznola explained that the master deed states that one person in each unit must be 55 or older.  He asked if the master deed would need to be change with this change of condition.  Atty. Foley informed the Board that if it is her clients position that the comprehensive permit is changed it automatically changes the master deed by the terms of the deed itself.  However, for reasons of clarity the change would be recorded.  Mr. Peznola suggested that Atty. Foley submit a legal opinion regarding this issue which the Board can forward to Town Counsel for review.

Mr. Peznola asked whether studies have been conducted in order to forecast how fast the units will sell with the change in the comprehensive permit.  Atty. Foley explained that the current marketing agent used a historic data study in order to determine the forecasts.  Mr. Peznola would like to see this study provided to the Board and backed up with data, he also requests that this data be sent out for peer review.  

Mr. Smith asked what is to stop the developer from coming before the Board again to change the permit.  Atty. Foley explained that when the appropriate number of units are sold it will convert to an owner-management condominium associated and therefore the developer would no longer have a financial interest in the project.  

Mr. Norris read a letter from the residents at the Esplanade dated April 2, 2008 in opposition to the change of the permit.  

Charles Callahan, Attorney representing the residents of the Esplanade stated his case in opposition to the change of the comprehensive permit.  

Atty. Callahan began by arguing that a cumulative loss will only be lessened by 2% with the modification the applicant is seeking.  He argues that the applicant does not have any guarantees that sales will be generated from lifting the age restriction.  He goes on to say that everyone is currently affected by the current real estate market, whether under or over 55.  Atty. Callahan cited an example in Boxborough where an auction is to be held to sell condominiums, which are not age restricted.  He believes this is a good example that the age restriction on the Esplanade units does not affect the developers ability to sell them.  

Atty. Callahan believes that the developer has breached their agreement to the owners and their fiduciary relationship.  

Mr. Peznola asked Atty. Callahan if he thinks that by modifying the permit the master deed would automatically changed.  Atty. Callahan stated that the deed would change with modification.   

Atty. Foley responded to the auction in Boxborough.  She explained that the developer wants to preserve the project value and therefore would not consider an auction to sell out the remaining units.   

Atty. Foley also responded to Atty. Callahan’s reference regarding the loss of only 2%.  She believes that $800,000 in savings is a reasonable amount to be concerned with.  

Carol Wurth, Unit 411 expressed her concern for what affect, if any, this change would have on her mortgage.  She also commented on the marketing of the Esplande, stating that there are no fliers available in the sales office.  

Richard Mutti, Unit 305 asked how many other developers are in the same situation.  Mr. Norris explained that the developers of the Esplanade are the only ones to come before the Board to ask for this modification to the permit.  

Nancy Field, Unit 206 argued that changing the permit does not guarantee that the units will sell.  Atty. Foley informed her that the developer has the right to ask for relief that could result in the recoupment of monetary losses.  

Dennis Mannone, Unit 216 believes that traffic is indeed an issue and that the parking spaces will not be sufficient if the age restriction is lifted.  

Janice Mannone, Unit 216 stated that since the applicant filed their petition she has not seen any advertising for the Esplanade.  Atty. Foley would like her objection to this comment stated for the record.  

Eva Ryden, Unit 220 asked whether the developer was concerned that current owners would sell their units if the age restriction were to be lifted.  

Ernie Kappolous, Unit 416 stated that while the Frias family has done a lot to help our community he asks that they rescind the modification request.  

Valerie Mahr, a Sudbury resident whose mother currently resides at the Esplanade would like the mental distress this had put on the owners noted for the record.  

Antonio Pinto, 106 Cottage St. asked Atty. Foley how many parking spaces are currently available at the Esplanade.  She answered that there were 142.  Mr. Pinto explained that the Hudson rule for parking spaces is that 2.5 spaces be allocated per unit, which would require the Esplanade to have approximately 350 parking spaces.  

Mr. Pinto also questioned the study that Atty. Foley reference regarding the impact the modification would have to the number of school aged students in Town.

Arthur Gordon, 100 Tower Street suggested that the developers compromise and lower the age restriction to 50.  He also called for more dynamic advertising on the part of the applicant.  

Lou Tagliani, Unit 208 estimates that there are only 60 parking spaces available for the 40 unsold units.  

Carl Leeber, 125 Causeway Street stated that removing the age restriction would not guarantee that the units would be sold.  

Tom Hill asked the applicants Attorney if the over 55 age restriction has ever been changed in Massachusetts with owner occupied units.  Atty. Foley stated that the age restriction was lifted in a development in Dighton.

Thomas Byrne, Unit 321 asked the residents in attendance how many of them had sold their homes at a loss in order to buy at the Esplanade.  

Joe Peznola, seconded by Dorothy Risser, made a motion to request the following information from the applicant for the next meeting:
An as built parking plan to the existing side as well as an allocation table of the parking spaces.
Parking needs study without regard to age restriction.
An absorption study for sales with and without the age restriction.
Legal opinion regarding the master deed.

Vote: 5-0-0, Unanimous (Todd Pietrasiak not voting)

Dorothy Risser, seconded by James Smith, made a motion to continue the public hearing for 248 – 250 Main Street for Thursday, May 8, 2008 at 7:30 PM.

Vote: 6-0-0, Unanimous


At 9:40 p.m., Joe Peznola, seconded by Lawrence Norris, moved to adjourn.

Vote: 6-0-0, Unanimous