Housing group takes protest of apartment size to state

A local housing group is taking the unusual step of asking the state to rule that a proposed apartment complex in Belmont violates fair-housing laws because of what it calls an attempt to "child-proof" the project.

The Belmont Housing Trust last week petitioned the Massachusetts Commission Against Discrimination to conclude that the Belmont Uplands plan lacks enough rentals for families with children. Under the plan, 16 of the 299 units will have three bedrooms, while the rest will have one or two.

The commission is looking into the claim, but it is unclear where it goes from here.

"I would say this is a very unique request," said Eugenia Guastaferri, a hearing officer for the commission. "We need to figure out if we even have jurisdiction."

Roger Colton, chairman of the board for the Belmont Housing Trust, said that if the commission agrees, the town would have to ask O'Neill Properties to revise its plans.

However, representatives for the developer and the town question the legal argument and basis for the petition.

James Ward, a land-use lawyer representing O'Neill Properties, said he did not see how it would violate state or federal housing laws because three-bedroom units aren't the only ones suitable for families with children.

"My gut reaction is it doesn't make much sense," he said.

Jay Szklut, Belmont's planning and economic development manager, questioned if the commission would consider the petition based on those grounds. "It's not like there are no families allowed there," he said. "It's almost more than what they get involved with. If it gets upheld, it has a much broader impact than just 40B."

The Belmont Zoning Board of Adjustment granted a Chapter 40B permit last month, to the dismay of numerous local opponents, after more than a year of review.

Chapter 40B is a state law that allows developers to avoid local zoning ordinances if they set aside at least 20 percent of a development's units at below-market rates. These proposals have often been opposed by residents because, they argue, the density of the developments would strain local services or change the character of the neighborhood.

The Belmont Housing Trust raised its "child-proof" concerns more than a year ago in written comments to the town. It noted the original plans for the Belmont Uplands called for 24 three-bedroom units.

As approved, the project will dedicate 60 units as affordable to households earning 50 percent or less of the area's median annual income. The development, which calls for five four-story buildings on land abutting the state's Alewife Reservation, will offer 16 three-bedroom units, 107 two-bedroom units, 156 one-bedroom units, and 20 studios.

The trust wanted the town to require the developer to increase the number of affordable units to 75, with the extra units having three bedrooms.

Szklut said the difference between 24 and 16 was a miscount from the initial plans drafted more than a year ago. The trust's argument does not take into account that two-bedroom units are also appropriate for families with children, he added.

In the 16-page petition, the Belmont Housing Trust focused on what it calls an intentional and de facto discrimination against families with children. It cited court decisions in New Jersey and Pennsylvania to support its case.

The petition has caught the attention of housing advocates in Greater Boston.

Ginny Hamilton, executive director of the Fair Housing Center of Boston, is not involved in the matter but is encouraging the trust. She said Colton makes some fine points. "It's unique in Massachusetts, but there is precedent in other states," Hamilton said.

Wary of increasing demand on municipal and school services, communities have increasingly focused on the number of school-age children likely to live in a development, according to the Citizens' Housing and Planning Association, a nonprofit group that promotes affordable housing and community development. In 2005, the association reported that the amount of age-restricted housing produced or proposed under Chapter 40B had increased dramatically in the previous two years.

The findings raised concern that 40B was becoming "a production mechanism for active adult housing without evidence that this matches with the populations that need affordable housing in Massachusetts."

The association focused on the assumptions that housing projects have an easier time meeting local approval if they have fewer school-age children. "This approach that we've used is really new," said Colton. "But the issue isn't new. People have talked about the tendency of communities to try to child-proof their towns."

But Bob Engler, a Chapter 40B consultant hired by O'Neill Properties, said the Uplands project would deliver fair housing for residents of various incomes.

"This is a market-driven issue for the developer," he said. "We're taking what the town approved."