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The Winchester Housing Partnership Board voted 8-2, with one abstention, to endorse a draft settlement that would end a Middlesex Superior Court fight over the proposed 34-unit redevelopment at 10 Converse Place/33 Mt. Vernon St.
The May 6 vote follows a turbulent three weeks: the Affordable Housing Trust and three Housing Partnership Board members sued the Planning Board over its February special permit; a Planning Board member filed an Open Meeting Law complaint against the Trust’s chair the same day; and town counsel told the Select Board that neither body had authority to file the lawsuit.
Meeting remotely, the board endorsed a framework that would convert three one-bedroom units inside the planned five-story building into deed-restricted homes at 80% of area median income (AMI).
The Trust would spend $1.685 million of the $2 million payment in lieu under the special permit to secure the units and prorated affordable parking. The dollar value of AMI for Winchester buyers was not included in the meeting materials.
“Upon agreement, lawsuit would be dismissed,” a slide shared during the meeting said.
The motion, edited on screen and circulated by email, was specific about what the board was endorsing and who could speak for it next.
“That the HPB endorses the settlement draft terms as currently stated between the AHT and the HPB and the Developer regarding 33 Mt. Vernon and authorizes the Chair and HPB Counsel to represent the HPB in further negotiation and in implementation of an agreement,” it read.
The board approved the motion 8-2, with Bill McGonigle of the Select Board and Keri Layton of the Planning Board voting no. One member abstained.
Layton said her concern was financial.
“I’m not clear on the terms, and I feel like we’re losing buying power,” she said.
McGonigle, an attorney, declined to endorse what he called a moving target.
“I can’t endorse these terms as they currently stand and without further information, so I’m a no at this time,” he said.
The lawsuit at the center
The settlement talks flow directly from a complaint filed April 17 in Middlesex Superior Court.
The Affordable Housing Trust, Allan Rodgers, Martha Jones and John H. Suhrbier — the latter three all members of the Housing Partnership Board, with Suhrbier serving as its chair — sued the five members of the Planning Board and Urban Spaces LLC, the developer.
The complaint asks a judge to overturn the late-February special permit for the project at 10 Converse Place, also recorded as 33 Mt. Vernon.
Under Winchester’s inclusionary-housing bylaw, the suit says, the project should have included three units at 80% AMI and two at 120% AMI.
The Planning Board instead allowed a $2 million payment in lieu, a condition the lawsuit contends was set in subcommittee meetings that violated the Open Meeting Law.
Hours after the lawsuit landed, Planning Board member Brian Vernaglia filed a separate Open Meeting Law complaint with the state attorney general’s office targeting the Trust and chair Marty Jones, alleging the vote authorizing the suit was improperly noticed and short of the Trust’s required threshold.
A week later, Town Counsel Karis L. North weighed in. In two memos to the Select Board, she concluded that neither the Trust nor the Housing Partnership Board had authority to start a lawsuit against the town.
“In no instance does the AHT have the authority to bring litigation against the Town or any legal entity,” North wrote. “It simply does not have that power.”
She reached the same conclusion about the Housing Partnership Board, regardless of who funded the suit.
Concerns and a path forward
McGonigle pressed repeatedly on whether the deal worked around earlier guidance from town counsel that the bylaw does not allow a “hybrid” approach combining on-site units with a payment in lieu.
“How can you explain that that’s not an end run around our current bylaw, because you can’t contract around the law,” he said. “It’s just illegal to do that. It’s unlawful.”
John Siciliano, the developer’s representative, said the special permit and the settlement are separate transactions.
“The Planning Board's decision stands requiring the developer to pay the $2 million,” he said. “This is about what the Affordable Housing Trust decides to do with that $2 million.”
Layton was not persuaded.
“This is the hybrid option, plus $215,000, and we were told by counsel that we are not allowed to do this,” she said.
Marty Jones, who chairs the Trust and serves on the Housing Partnership Board, said the unit mix had shifted from the permitted 4/17/13 split (one-/two-/three-bedrooms) to a revised 5/23/6, with the smallest units targeted for affordability falling below the 946-square-foot minimum the special permit set.
“I don’t like the idea of reconnecting one bedroom to build three smaller units,” Layton said. “They should take the layout that was approved by the Planning Board and designate three units to be affordable housing in the closest distribution you can get to what would have been approved by the Planning Board.”
After more than 30 minutes of on-screen negotiation, members stripped two lines from the deal — the revised unit count and the specific one-bedroom designations — before voting.
A look at renderings presented to the Winchester Planning Board for the 10 Converse Place/33 Mt. Vernon St. development project. COURTESY PHOTOS/TOWN OF WINCHESTER
Siciliano said the developer does not yet own the property and is hearing daily from the bank that does.
Board member Michael Bettencourt urged the group not to slow further: “If we wait longer, I think that really harms the developer’s chance of actually getting this project done.”
Suhrbier said he would call another remote meeting Wednesday, May 13, to brief the board.
Siciliano said he and Paul Ognibene, of Urban Spaces, would meet with Town Planner Taylor Herman and Planning Board Chair Jack LeMenager on the unit-mix questions.
The board’s next regular meeting is May 20.
The motion does not, by itself, resolve anything. It authorizes Suhrbier and board counsel David Klebanoff to negotiate further and carry out an eventual agreement among the Trust, the Housing Partnership Board and Urban Spaces — while the Select Board, which must respond to the lawsuit, has not voted on the framework.
Will Dowd is a Massachusetts journalist who covers municipal government and community life for Winchester News. He runs The Marblehead Independent, a reader-funded digital newsroom.
