May 17, 2001 Gatehouse hearings conclude with a focus on water supply By Brian Burns Hearing sessions between attorneys for the 300-unit Gatehouse affordable housing complex and Walpole’s Zoning Board of Appeals (ZBA) concluded last Thursday afternoon with what state housing appeals chairman Werner Lohe characterized as a "healthy degree of tension." Closing out attorney Paul Killeen’s case on behalf of the ZBA, Town Administrator James Merriam testified to the town’s ability to provide adequate public safety services. Gatehouse appealed to the state Housing Appeals Committee (HAC) after the ZBA rejected their application to build 300 units of affordable housing at the corner of Route 1 and Pine Street. Under the state anti-snob zoning law, HAC has the power to overturn the board’s decision. Given the opportunity to present rebuttal witnesses to the ZBA’s case, Gatehouse attorney Walter Spiegel continued to hammer away at the town’s assertion that there is not enough water in the South Walpole zone to supply and protect the proposed complex. After Spiegel objected almost immediately after the start of questioning, Killeen was forced to toe a thin line while asking Merriam about the town’s present budget scenario. In refusing proposals for affordable housing projects, town officials are only allowed to cite financial hardships if it would prevent them from providing the project with adequate health and safety services. Merriam said some of the cuts that would have to be made in order to balance a no-override budget would undermine the town’s ability to provide safety services. The proposed cuts include the positions of three full-time police officers, one full-time firefighter, and the entire 16-member call firefighting department. In addition to that, without the $600,000 allotted for capital project improvements, the town would not be able to purchase a new fire engine, he said. Fire Chief Kenneth Erickson had previously testified before the commission that due to existing staffing shortages he was already unable to provide the site with an adequate level of protection. During his cross examination, Spiegel asked Merriam if town officials were imposing inflated water connection fees as a way of discouraging Gatehouse developers from continuing with the project. Spiegel cited previous testimony from Water and Sewer Commissioner Stephen Davis, who allegedly said it would cost the complex up to $3 million to connect. Merriam said estimated connection fees to be $3,000 per unit, or $900,000 for the total complex. Gatehouse is asking under the anti-snob zoning law that it be exempt from connection fees. Spiegel’s rebuttal to the ZBA’s case last week rested on the testimony of the project’s water systems consultant Mark Divine. During a heated cross-examination in April, Spiegel had attacked the figures and methodology used in the testimony of Ali Parand, the town’s water systems consultant. Parand had stated during the April hearing the South Walpole zone would not be able to adequately supply and protect the proposed complex during an extended period of high demand at least until supply improvements had been made. A 300-unit Gatehouse project would require approximately 63,000 gallons of water per day. The issue is how serious an impact that added burden would have on the water supply. Working once again against the frequent objections of Killeen, Spiegel asked Divine to plug his own numbers into Parand’s report. Even if the Gatehouse project was completed prior to scheduled improvements to the town’s water system, the total shortfall in the system on maximum demand days would be about 940,000 gallons, Divine said. The town’s water tanks make up for demand that exceeds the capacity of the pumps, as long as they can be refilled overnight. Experiencing a significant amount of high demand days in a row can deplete the amount and pressure of available water. In Parand’s calculations, the shortfall in demand had been well past the one million gallon per day mark by that time, he said. Under Spiegel’s direction, Divine also questioned Parand’s calculations concerning the availability of adequate fire flow. Parand had testified that the Gatehouse complex would require fire flow protection of 4,500 gallons per minute for a duration of four hours. The South Walpole zone would have a difficult time providing that amount of water, Parand said. Citing documentation prepared by the Insurance Services Office, Divine said the complex would only require a 3,500 gallon a minute flow over a three hour period, something the zone could handle. During cross examination, Killeen pointed out that the ISO rating schedule is not only about available water supply, but also about the ability of the fire department to provide protection. Killeen also pointed out that there was a chart in the ISO book calling for a 4,500 gallon per minute fire protection rate and noted that other projects in the South Walpole zone had been assigned that rating before. Divine said the 4,500 gallon per minute rating was for special or unusual projects that required more fire protection than other structures in the same area. Killeen then asked if a 300-unit wood-frame apartment complex might be considered as one of those special projects. Both sides in the case will have 30 days from the receipt of the hearing’s official transcripts in which to prepare their briefs on the case.
April 13, 2001 Gatehouse, town disagree over water By Brian Burns Arguing before the state Housing Appeals Committee last week, attorneys for Walpole’s Zoning Board of Appeals and Gatehouse differed sharply over whether the town would be able to provide adequate water service to a proposed affordable housing complex on the corner of Route 1 and Pine Street. The ZBA is working to convince the state that the town would be unable to provide adequate lifesaving services and sewer and water resources to Gatehouse’s proposed 300-unit complex. ZBA attorney Paul Killeen and Gatehouse attorney Walter Spiegel chatted amiably with each other on their way into the building, but tension simmered between the two men after testimony from water systems engineer Ali Parand came under close scrutiny during Spiegel’s cross examination. The key point of contention was whether or not Parand, a consultant for Walpole, had overestimated demand in the South Walpole zone as part of a 1999 report submitted to the ZBA. The ZBA cited that report as part of its decision to reject the Gatehouse application. Using data available to him at the time he was writing the report, Parand predicted that in 2000 the town would realize a shortfall of more than 600,000 gallons of water during high demand days in the South Walpole zone. Assuming that the supply of water does not change, that shortfall would increase to more than 1.8 million gallons by 2008, he concluded. The addition of a complex like Gatehouse would increase that shortfall by 10 to 15 percent, and seriously affect water pressure and firefighting capabilities within the zone, his report said. During his cross examination, Spiegel used 22 pages of typewritten questions to challenge the terms, numbers and sources Parand had used as part of his report. Spiegel asserted that Parand was using the term "shortfall" in a context that could be misleading. On a maximum demand day, shortfall refers to the difference between the demand for water and what the town can pump out of its wells, Spiegel noted. On the days cited by Parand, the town was still able to meet demand, but had to draw the difference out of the reserves in the South Walpole tank, Spiegel said. Spiegel then attacked Parand on the initial figures he had used to predict the future shortfall. Parand had based his findings on the water use averaged out to 174 gallons per resident per day in 2000, when the actual number was 134, Spiegel said. Thus, the conclusions about the shortfall Parand came to in his report represented a considerable overestimation, Siegel said. At first, Parand allowed that his numbers may have been off, but after a break in testimony during which he was afforded the opportunity to check his calculations, he determined his original work to be correct. Testimony after that break became quite heated at moments, as Spiegel and Killeen squabbled over both the phrasing of questions and to what exactly Parand had testified to earlier. Housing Appeals Chairman Werner Lohe was forced to intervene on a number of occasions, finally insisting that the two attorneys let the record speak for itself. After backing off on the numbers issue, Spiegel persisted with his hard-nosed questioning, asking Parand why he did not advise the town to apply for a moratorium on all future water hookups if the South Walpole zone was in such dire straits. The state Department of Environmental Protection allows a moratorium when a town’s water supply is unable to support any additional demand. Parand said should his predictions play themselves out over the next few years, he would almost certainly have to recommend that the town apply for a moratorium. Spiegel said that it was illegal for a town to deny a hookup in the present based on problems that could occur in the future. He also said that despite the alleged shortfall in the summer of 2000, the town had not banned outdoor watering, as it had done in the past. (Odd-even restrictions were in place last summer.) Spiegel then wondered aloud if there had been a significant shortage at all. Following Parand’s testimony, the hearing was continued until May 10. Town Administrator James Merriam is among the witnesses yet to be heard from. Feb. 16, 2001 Fire chief testifies at hearing By Brian Burns The Zoning Board of Appeals used testimony from Fire Chief Kenneth Erickson to defend its rejection of the proposed Gatehouse affordable housing project at a state hearing this week. The ZBA is trying to prove that Walpole is unable to provide health and safety services that the 300-unit Gatehouse complex on Route 1 would require. In response to questions by ZBA attorney Paul Killeen at the hearing Monday, Erickson listed several aspects of the proposal that he felt contributed to a serious public safety risk. Erickson’s first concern was that it would take his firefighters almost six minutes under ideal conditions to travel from the fire station to the proposed site between Pine Street and the Foxboro line, He said that outside factors such as weather and traffic conditions could slow their response time even further. The consensus of public safety agencies is that the ideal response time is under four minutes and that the threat to human safety increases exponentially according to how long after that time it takes for safety officers to arrive, he said. Erickson said that the long response time was especially dangerous considering the type of sprinkler system Gatehouse plans to use inside their buildings. He differentiated between two sprinkler systems, the 13 and the 13R. Gatehouse is proposing to use the 13R system, which has less sprinkler heads and less water output per nozzle than the more comprehensive 13 system. The combination of a long response time with a less-than-perfect sprinkler system increases the possibility that a fire could overtake one of the 24 unit complexes before the department could fight back, he said. Erickson calculated that he would need approximately 3,600 gallons of water per minute in order to fight a fire that has spread throughout one of the complexes. He said that he would not be able to get that supply at the proposed site. Another major concern for him was that the proposed site is next to Route 1, where there are no pedestrian crosswalks and the average vehicle speed is over 50 mph. With the majority of town’s facilities and attractions located on the west side of the highway, he said that he was concerned that pedestrians (especially children) would be hit while trying to cross. During the cross examination, Gatehouse representatives suggested that the ZBA had overlooked similar safety concerns in the past with other developments and questioned whether their proposal had been rejected because it would place low-income housing within the confines of the town. Gatehouse Attorney Walter Spiegel asked the chief why he didn’t object to a number of projects, including the construction of a dormitory at the Iorio skating rink, that face many of the same safety issues as the Gatehouse project. He explained that both projects are at least six minutes from the fire station, utilize the same water supply, and would draw a number of potential pedestrians to an area of Route 1 with no crosswalks or sidewalks. Spiegel also questioned Erickson as to why he didn’t object to the approval of Golf Day’s request to use its lot on Route 1 for parking during stadium events. He asked why the town would approve a project that would result in more people walking along the road if it were so concerned about the level of pedestrian safety. Spiegel also noted that the ideal four-minute response time that Erickson mentioned was only a suggestion and not an actual law. He also pointed out that the 13R sprinkler system is compliant with the state fire code. Spiegel also suggested some alternative ways to provide adequate fire protection, including placing a fire station on the south side of town or utilizing water from surrounding towns. Erickson explained that the projects that he approved in the area of the Gatehouse site, including the Iorio dormitory, all employed the 13 system of sprinkler protection. He said that he was more comfortable letting these projects go through because of their high level of fire protection. The Iorio dormitory not only uses the 13 system of sprinkler protection, but it will not always be occupied and it does not have any cooking facilities that would increase the risk of fire. He said that should he get the funding, his first priority would be to place a fire station in East Walpole, as that is where the greater need is. As far as utilizing a reserve supply of water from another town, Erickson said that the time it would take to set it up such a system would outdo any possible benefits the extra water would provide. Erickson told Spiegel that he did not have a problem with low-income housing and that everyone in town was provided equal protection by his department. He acknowledged that several of his own firefighters had difficulty finding affordable housing within the town. The hearing is scheduled to resume on Feb. 27, when Killeeen will present testimony from the sewer and water department.
Feb. 1, 2001 Gatehouse residents won't depend on firefighters By Tom Glynn The residents of the proposed Gatehouse apartments will not depend on the Walpole fire department for their safety, a fire protection engineer said at a state hearing last week. Instead, fire retardant walls and ceilings, heat and smoke detectors, alarms and sprinklers will give residents the time needed to escape a fire, Robert Cummings told the state Housing Appeals Committee. "We don’t rely on the fire department for the life safety of occupants," Cummings said. "The automatic detection would get occupants out quickly." Under the state’s anti-snob zoning law, the HAC will decide whether to permit construction of 300 Gatehouse apartments off Route 1. The Walpole zoning board of appeals rejected the plan in September, in part because of the site’s distance from the fire station and concerns about the amount of water available for firefighting. Cross-examining Cummings, Walpole’s attorney, Paul Killeen, focused on the type of sprinkler system Gatehouse says it will install in its three-story, 24-unit buildings. The system would locate automatic sprinklers inside the dwelling units, but not in attics or other uninhabited areas. During the local ZBA hearing last year, Fire Chief Kenneth Erickson sought unsuccessfully to convince Gatehouse to sprinkler all areas of its buildings. The structures’ design, the chief has said, would allow a fire to spread quickly through walls and attic spaces. While Cummings said at last Thursday’s HAC hearing in Boston that 99 percent of residential fires start in inhabited areas, Atty. Paul Killeen pointed out that Gatehouse plans would leave bathrooms and closets unsprinklered. Nor would the system do much good against fires starting in the exterior walls of the wood-frame buildings, Killeen said, Killeen pressed Cummings to say how he could be sure all residents would escape a burning building before firefighters arrived in, say, 10 minutes. As a publicly subsidized complex, he said, Gatehouse could be expected to have a relatively high number of elderly and handicapped residents. Arriving firefighters would be in danger themselves, Walpole’s attorney said, confronted with a big, burning building with no way to be sure that as many as 100 residents had made it out. Do you believe that with an occupied 24-unit building, firefighters are not going to enter, Killeen asked Cummings. In that situation, Cummings replied, it would be up to the commanding officer to make a decision whether or not to send firefighters into the building to look for people. Cummings testified Gatehouse’s planned sprinkler system meets code and that it is consistent with construction industry standards. The HAC’s regulations emphasize those two points and on them, Cummings went unchallenged by Killeen. Under the rules, the town generally can use only public health and safety issues to justify its rejection of Gatehouse. The first HAC hearing, three weeks ago in Walpole, covered Route 1 safety. Chief Erickson is scheduled to testify at the next hearing in Boston. During last week’s session, Cummings, the Gatehouse engineer, testified that there is adequate water supply at the site for firefighting according to the state code. The code calls for 330 gallons a minute to serve the sprinkler system and for hoses, he said. A main on Route 1, to which Gatehouse will connect, tested at 995 gpm, three times what’s required, he said. Cummings did not contest Killeen’s assertion that the cited code is intended only to provide enough water for the sprinklers and clean-up, not for firefighters. Cummings conceded that the leading national insurance rating bureau says 2,200 to 4,000 gallons per minute are needed for fighting a fire. Feb. 1, 2001 Sewage plan discussed Gatehouse’s plan to pump sewage into the Walpole system is standard construction procedure and in some ways superior to the alternative sought by Walpole, an engineering consultant for the developer told the state Housing Appeals Committee last week. One of the reasons given by the Walpole zoning board for rejecting Gatehouse’s 300-apartment pro-posal is that the town’s sewer master plan calls for gravity connections as more reliable than pumps and less likely to produce surges. But, James Colantonio said, with a holding tank, a pumped system can be timed to avoid surges. Besides, the gravity connection called for in the master plan would involve tunneling 20 to 30 feet deep, something sewer planners generally want to avoid, he said. The engineer noted the Iorio rink and a nearby single-family subdivision pump their sewage into the system. Under cross-examination by Paul Killeen, the town’s attorney, Colantonio said he did not see any Gatehouse plans for a holding tank, nor did he see any indication that the developer had presented such a plan to the town. "You haven’t viewed a design (for a holding tank) because one does not exist," Killeen said to Cummings. In its rejection, the ZBA mentioned points downstream from Gatehouse in the Walpole sewer system that already experience capacity problems. Asked by Killeen whether he had calculated the impact of the added Gatehouse sewage at those points, Colantonio responded that the task was not among his responsibilities. In response to a question by Killeen, the engineer said he estimated a pumped system would cost $500,000 to $600,000, about half the price of a gravity system. A Gatehouse attorney tried unsuccessfully to block that question on the grounds it had to do with economics, not health or safety. HAC Chairman Werner Lohe allowed the question, saying he wanted to get information onto the record
Jan. 19, 2001 Gatehouse decision up to state
By Tom Glynn A year after it was first presented to the town, the 300-unit Gatehouse apartment proposal is now in the hands of the state. How the state acts will have a big impact on the town’s schools, water and sewer service and public safety, according to testimony from local officials during a months-long public hearing. The contest between the town and the development and management company now headquartered in Mansfield appears tight. Last fall, the town’s Zoning Board of Appeals rejected the application made under the state’s anti-snob zoning law by Gatehouse for a comprehensive permit for the Route 1 site. Under the state law, a comprehensive permit takes the place of an array of local approvals usually required by the town. Rejection of the permit gave the developer the right to ask the state’s Housing Appeals Committee (HAC) to give the complex the go-ahead. At last week’s opening session of the HAC hearing, Gatehouse’s lawyer said Walpole falls far short of meeting the state’s goal for affordable housing, perhaps because townspeople want to exclude low and moderate-income residents. The state goal is that 10 percent of a town’s housing be affordable, defined as built under a federal or state subsidy program. Walpole has 138 units that meet that definition out of a total of 7,000 homes, putting the town’s "affordable" figure at less than 2 percent. Gatehouse’s application, Atty. Leigh-Ann Patterson said, is intended "to assist the community meet its affordable housing problem." "It’s just a wonderful project," she said at the Walpole Town Hall session. Patterson told HAC Chairman Werner Lohe that while Gatehouse worked to accommodate the Walpole’s wishes over the past year, the town kept "raising the bar." The ZBA rejected the proposal in October. Among the grounds: The town could not guarantee adequate water and sewer to the site and the Route 1 location would be a pedestrian hazard for the complex’s residents. The Gatehouse presentation to the HAC last week stressed that despite the local concerns, the complex would meet state codes and that all of its elements, including the location, are consistent with generally accepted standards. If the HAC accepts that argumentation, the law, past court cases and its regulations call for approval of the complex. Anti-snob law The anti-snob zoning law was enacted in 1969 in response to a growing concentration of subsidized housing in the core cities and zoning in many suburbs that sharply restricted construction of low-cost housing. Parallel with enactment of that law, there was a push by Gov. Francis W. Sargent and leading legislators for better land-use planning. The anti-snob zoning law was presented and widely supported as a major component of a wide-ranging planning effort that included transportation and job creation as well as housing. The plan was that state or federal agencies would work with local governments and civic-oriented organizations to overcome obstacles created by zoning to fair housing opportunities. The law called for the local need for affordable housing to be balanced against local concerns. A series of court cases defined that balance to be on the side of housing to the extent that a community falls short of the 10 percent goal. In 1969, it was hoped the new law would encourage affordable housing for reasons that went making money. But as subsidy programs evolved, the anti-snob law was invoked increasingly by companies that learned that limited dividends and management fees add up. As the Gatehouse hearing got under way in Walpole last year, the HAC was hearing an appeal that indicated how much the law had evolved from what was discussed and debated in 1969. A developer proposed to build expensive condominiums on the Hyannis waterfront, setting aside enough of them as "affordable" to qualify for treatment under the anti-snob law. Instead of being financed through a government agency or a not-for-profit group, the funding was to come from a bank. So was the ongoing supervision, including oversight over who gets the below-market condos. Noting that the land was zoned to encourage harbor-related uses and not housing, the local zoning board turned the application down. The local board also said that the anti-snob law does not envision a bank as the ongoing guarantor that the designated housing remains affordable. The HAC ordered the local ZBA to reconsider its rejection. The committee did, however, say that because a bank rather than a non-profit was the sponsor, the town could and should get more deeply involved than usually permitted under the law. Back in Walpole, the ZBA read the HAC’s Hyannis ruling to mean that Gatehouse and other witnesses could be asked about wide-ranging impacts of the complex, including those on schools. At the time, the sponsor for the Gatehouse complex herewas to be Fleet Bank. Town officials said that adding many hundreds of students all at once would swamp the Walpole schools. Gatehouse switched from the bank to a state agency, the MHFA, as its funding source. Deprived of the broader reach allowed by the Hyannis case, the Walpole ZBA was confined mainly to consideration of public health and safety. As a result discussions about the impact on schools, on town finances and other issues came to an end. The focus went to water and sewer service, fire protection and pedestrian safety. Health and safety From the start, town officials maintained that an adequate water supply to the site could not be guaranteed. South Walpole, at a higher elevation than the rest of the town, has one standpipe to store water and keep it flowing. The summer of 1999 showed that the South Walpole system is already inadequate, sewer and water commission Chairman Steven Davis testified at the ZBA. Gatehouse would significantly increase the demand, he said. There are long-range plans to improve the system, but they cannot be realized within Gatehouse’s timeframe of two or three years. Similarly, even if the town pushed as fast as legally and physically possible, it could not expand sewerage in time to meet the Gatehouse schedule, he said. Further, Gatehouse insists it will pump sewerage into the Walpole system in a way contrary to the town’s sewer master plan, he said. While it is cheaper and easier for Gatehouse, a pumped system imposes more costs on the town and a higher risk of breakdowns than the gravity system called for in the master plan, he said. At last week’s HAC hearing opener, Gatehouse stressed that the sprinkler system for its planned apartments meet the state code, as does the amount of water available for firefighting. Since the codes will be met, the town improperly used fire safety as a reason to reject the permit, Gatehouse representatives said. As outlined by Fire Chief Kenneth Erickson, the town’s position is that big and obvious factors about the site and the planned construction warrant protection that goes beyond meeting the state code. The site is distant from the fire station, meaning a long response time for engines or an ambulance, the chief said. The time factor is worsened whenever a Foxboro stadium event ties up Route 1. Residents of the complex would be at risk, he said. So would other townspeople if engines and ambulances were isolated at the site. The distance factor and the type of construction mean that Gatehouse needs better sprinklers than the minimum required by the state, the chief has testified. Without that added protection, an apartment building fire could be too far advanced to be put out by the time his department arrives, the chief said. Under those circumstances, firefighters normally would direct their efforts toward keeping flames from spreading to other buildings, he said. But he wondered what might be in store if there are people still inside a big burning building. On the safety of children and other pedestrians, Gatehouse representatives have testified at various times that the matter is not their responsibility or that residents of the complex will not walk on or across Route 1, a high-speed divided highway with no crosswalks or pedestrian lights. At last week’s opener, Patterson, the Gatehouse lawyer, used the latter argument. "The site is not designed to generate pedestrian traffic," she told the HAC chairman. Atty. Paul Killeen, representing the town, noted that Gatehouse has declined to provide demographic information, including the number of children expected at the complex. (Early last year’s ZBA hearings, Gatehouse estimated a 344-unit complex would add 61 students to the schools.) Killeen pointed to an estimate of 1.6 school-age children per unit that the company gave Plainville officials for a complex there. It can be expected that there will be several hundred youngsters who might be drawn to attractions south on Route 1 and who would have to get across the highway to any activity in Walpole, Killeen said. The Gatehouse lawyer told the HAC residents of the complex "will get in their cars and drive." The town’s lawyer responded that the parking plan allows just over one car per apartment. The HAC will hold further sessions in Boston before ruling. An HAC decision can be appealed to superior court. Jan. 12, 2001 State opens hearing on Gatehouse appeal
By Tom Glynn The Gatehouse apartment complex at Route 1 and Pine Street "is not designed to generate pedestrian traffic," a representative of the developer told the state Housing Appeals Committee yesterday. Whether or not it is the developer’s intent, children and other residents of the complex would walk onto Route 1, a divided highway with no provisions for pedestrians, an attorney for the town countered. Under the state anti-snob zoning law, Gatehouse is appealing the Walpole Zoning Board of Appeals rejection of its proposal for 300 apartment units. The law confines the town to matters of public safety and health in defending the rejection. Pedestrian safety and the adequacy of water and sewer service are the main issues before the state appeals committee. Responding to the ZBA’s assertion that residents of the complex would be in danger walking on Route 1, Gatehouse consultant James E. Koningisor told HAC Chairman Werner Lohe that like everybody else, "residents would get in their cars and drive." Koningisor was the main witness for Gatehouse at the HAC hearing in Walpole Town Hall yesterday. Future sessions will be held in Boston as the HAC deliberates whether to order the ZBA to issue Gatehouse the permit it denied last year. Cross-examining Koningisor, Paul Killeen, the attorney for the town, said Gatehouse has estimated that there would be 1.6 school-age children per unit in a complex being built by the company in Plainville under the anti-snob zoning law. Killeen noted that parking plans for the Walpole complex provide for just over one space per unit. "You would expect people who live in your complex to be full-fledged citizens of Walpole… like the people who live on the other side of Route 1," Killeen said to Koningisor, who agreed with the statement. With large numbers of children, relatively few cars and a location away from all activities in town, Killeen argued, the apartment complex inevitably will produce a large number of pedestrians. Also in dispute is whether the town could supply adequate water and sewer service to the site in the timeframe envisioned by Gatehouse. |