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Battle for Affordable Housing Project in Winchester Nears Conclusion

Jan 30, 2019 07:09AM ● By Dan Marra

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WINCHESTER – The nearly three year court battle among residents of The Ledges in Winchester and FX Winchester, LLC over a proposed affordable housing project may soon be coming to a conclusion.

The legal battle started shortly after the Winchester Zoning Board of Appeals granted a permit for a 96-unit, 40B affordable housing residential apartment building at 416 Cambridge Street in Winchester to F X Winchester. Residents sued the developers and the Board claiming, among other concerns, that the excess sewage would impact quality of life for those in the area.

The judge is expected to make a decision on this court case as early as February. The plaintiffs have asked the judge to send the case back to the Zoning Board of Appeals for another hearing, claiming the information the Board heard when it granted the developer the permit was inaccurate.

According to court documents, the main concern is sanitary sewer overflows (“SSOs”). The residents contend that these SSOs will increase as a result of the project, which occur when the volume of sewage exceeds system capacity, and will “pose an unacceptable risk to public health and safety when raw, untreated sewage is discharged directly to the environment.”

According to Sean Reardon, a professional engineer with 27 years of experience in site civil engineering design and currently vice president of Tetra Tech, the sewage report the Zoning Board of Appeals reviewed was inaccurate, claiming the town’s engineering consultant for the last 10 years – David Elmer – submitted a flawed report.

“For some inexplicable reason, and contrary to accepted design guidance, Mr. Elmer limited his review to ‘dry weather flow’, so his report was of little value in assessing potential for increased sanitary sewer overflows, which are principally a wet weather phenomenon,” said Reardon in a sworn affidavit.

However, FX Winchester, as well as the Zoning Board, dispute the resident’s claims, as well as Reardon’s assertion regarding his concerns about the sewage.

“Winchester has a public interest in the comprehensive permit at issue in this case,” according to a motion filed by the defendants. “The Town does not currently meet the 10 percent threshold for affordable housing under Chapter 40B, and it has a significant interest in seeing that comprehensive permits issued by the Board are upheld and approved affordable housing units built.”

 Additionally, according to court documents, Elmer, the town’s engineer acknowledged an error in calculating how much sewage would be flowing through the area. However, Elmer stated that when calculated correctly, overflow is still not a concern, as FX Winchester will also be paying the town $228,000 for sewage mitigation.

“Even in a brand new system, whether that’s a 25-year event or a 5,000 year flood event, there will always be a storm event that overwhelms a particular collection system,” Elmer said in an affidavit.

Elmer admitted that a storm on Sept. 30, 2015 was a 5-year event but did not cause any sewage overflow in the area. Court documents go on to state that there has not been a sewage overflow in Winchester since December of 2014.

The defendants go on to suggest the residents filing this motion to halt production on this project are doing so because it’s an affordable housing project.

“The Plaintiffs argue that any possibility of an SSO in a public sewer system, regardless of its frequency, its severity, its cause, or its location with respect to an affordable housing project, should eliminate the ZBA’s discretion to issue a comprehensive permit when there is a regional need for affordable housing,” court documents read.

The residents have asked a court to hold the permit and send the case back to the Winchester Zoning Board of Appeals with what they assert to be new and additional information the Board needs in reconsidering whether or not a 96-unit complex should be built on Cambridge Street.

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