Don Seltzer drawing of proposal for 882-892 Mass. Ave., showing affordable units.2023 drawing of 882-892 Mass. Ave., showing rear location of affordable units available in today's lottery. / Don Seltzer graphic

UPDATED Sept. 16: The lottery to choose the winners from among the applicants for three one-bedroom affordable apartments in a new building near Arlington High School was held at 3 p.m. Friday, Sept. 15, via Zoom. It was conducted by MCO Housing Services, which received 16 applicants.

However, a month ago, in August, new questions emerged about the 21-unit, mixed-use building at 882-892 Mass. Ave., via exchanges involving a persistent former town resident and the town manager.

Do the three recently designated units fully meet town and state requirements? Are those three available spots too small, at barely more than 500 square feet? And should all three be "stacked" at the rear of the building?

The multistory building, at the former site of Japanese restaurant Toraya before it moved down Mass. Ave., contains 21 new rental units. The three apartments now designated as affordable each have one bedroom and one bathroom in 507 square feet; the other units in the building are much larger.

Discussions to address those questions, involving Don Seltzer, longtime former town resident, and Town Manager Jim Feeney, continue. Here is an updated summary to date, based on email exchanges between the two and others, which YourArlington has received.

The application deadline -- the multi-page application required enclosure of numerous financial documents and had to be postal-mailed or hand-delivered -- to be entered into the lottery was Aug. 24. Just one day before that, Aug. 23, Seltzer alerted Town Counsel Doug Heim and Inspectional Services Director Michael Ciampa about concerns related to the next-day deadline for applying for the three affordable units at 882 Mass. Ave.

Seltzer wrote that MCO Housing Services of Harvard, the consultant employed by town planning, "continues to list the same three smaller 'stacked' units in the rear, in contradiction to the conditions of the [2020] special permit, Arlington's [own] ZBL (zoning bylaw) and [town planning] requirements for inclusion on the SHI," or the state Subsidized Housing Inventory. Has any progress been made in redistributing the affordable units to include those that are larger and/or facing the front of the building?"

Progress? Feeney responds

Two days later, Feeney responded in detail, copying Heim. He began with a telling phrase, characterizing the twists and turns in the process since May, when the application window/lottery were originally announced, then postponed: "It is as if your initial public record request sent me into a proverbial 'rabbit hole.' "

He then acknowledged that Seltzer's persistence had in fact led to a noteworthy discovery.

While investigating the square footages of the units in the building, Heim wrote, "it became clear the units did not meet ... guidelines for new construction." Those guidelines are from the Executive Office of Housing and Livable Communities, formerly the state Department of Housing and Community Development. They call for 700 square feet for one-bedroom units -- not the 507 square feet mentioned in the most recent version of the lottery application.

State waiver possible

Feeney wrote that he had conferred with that state agency, and that "it was determined [that] they would need to issue a waiver of sorts," to have the three Arlington units included in the state inventory. That "is still in process," he wrote. "Beyond that, this ongoing process also provided the opportunity to seek a change to the regulatory agreement governing the affordable units in the property."

Feeney explained further, showing how his discovery changes matters:

"The initial regulatory agreement fixed/designated the three units in question; however, the new provision will [if implemented] undesignate the units, allowing them to float from time to time. This not only guarantees interchangeability between the market rate and affordable units in perpetuity, but [it] also ensures [that] the units are permanently accounted for on the SHI."

How this would operate locally

Feeney continued his explanation:

"When units are fixed, they can and do periodically fall off the inventory when [the income of] existing tenants [rises beyond] the eligibility criteria, yet [tenants] remain in their units. Now, when this happens, the next available unit immediately replaces the prior affordable unit."

He noted that "this will work well in this development," meaning 882-892 Mass. Ave., because every unit in the building is one bedroom.

"I also took this opportunity to view every unit in this particular development in the company of the owners," he wrote. "I was pleased that all of the units received the same materials, finishes, fixtures and appliances -- including in-unit laundry. The units are functionally equivalent, have the same access to accommodations and facilities, and are of equal quality and character."

As to the special permit and zoning bylaw, Feeney told Seltzer that he had "analyzed each individual element carefully, learning a lot in the process, and would be happy to have a call to review the finer points with you."

Differing conclusions

At the same time, Feeney noted in his Aug. 27 message, "I did not reach the same finding of contradiction(s) that you did. " ... [I]n regard to 'stacking,' which in this instance includes a market-rate unit in the stack, [this] is not necessarily fatal as you infer ... in the same way that 'clustering' of affordable units is.

"In a building of a different shape or form (such as a stack being located in separate ell around a corner), this could lead to a different conclusion on this score.

"But here in a smaller, single-corridor construction, there is no meaningful difference in location between the front and [the] rear of the building. All that changes is the view from inside the unit, which is not contemplated by [town planning] or our ZBL. Only the external appearance, or view from the outside, is to be considered -- and the building has a largely consistent facade. This is likely because view is a matter of preference and a function of location.

"I want to thank you again for your diligence on this matter, and for bringing these issues to my attention. While it may have taken a bit of time and attention, I am glad they are being brought to resolution."

Followup email to ARB, planning

Two days after that, on Aug. 27, Seltzer wrote to the four members of the Arlington Redevelopment Board, with a copy to Town Planning Director Claire Ricker, highlighting what Feeney had revealed.

After outlining what has occurred since May in his view, Seltzer wrote: "In the course of investigating questions regarding unit size, Feeney uncovered a [state] requirement ... for inclusion on the subsidized housing inventory that had previously escaped everyone’s attention.

"Specifically, [the state] requires that one-bedroom apartments be at least 700 square feet and that two-bedroom apartments be at least 900 square feet. The three apartments that have been designated affordable at 882 Mass. Ave. are not compliant.

"[Jim Feeney] believes that a waiver from [the state] is possible. Alternatively, there are three other apartments in the building that are 700 square feet and could be chosen as the affordable units."

Seltzer then raised issues about other local affordable properties. The issue of allegedly undersized apartments, he writes, can also be found in three other recently ARB-approved projects, citing 455 Mass. Ave., 190 Mass. Ave. and 80 Broadway.

YourArlington plans to address these developments in a subsequent report.

Feeney was asked Sept. 6 about progress since Aug. 25 about issues involving 882-892 Mass. Ave.; no reply has yet been received.

Aug. 7, 2023: Application date passes for units at 882-892 Mass. Ave.; town calls remaining questions 'high priority'

This article by YourArlington founder Bob Sprague was published Friday, Sept. 15, 2023. It was updated Saturday, Sept. 16, 2023, to state the number of applicants -- 16 -- competing for three small apartments.