HARVARD -- Selectmen Tuesday night voted three-to-two to waive construction-related fees for which they have oversight, as requested by the nonprofit developer CHOICE. CHOICE is currently building a multi-unit affordable rental apartment complex at the site of the former Elms.

The motion to waive the fees set an "up to" cost cap yet to be determined but estimated to be $15,000 or $20,000 for building permit, plumbing and electrical wiring permits.

The request was forwarded in a letter from the Zoning Board of Appeals, which is currently considering CHOICE applications for special permits.

Town Administrator Tim Bragan said the ZBA considered it an unusual request.

But Selectman Lucy Wallace suggested it was the least the board could do, given that "we failed" to kick in any town money when asked to do so. Yet the board told CHOICE the town supported the project, she said, which was backed by the Massachusetts Department of Housing and Community Development.

Waiving the fees would be a way to contribute to the project, she said. "That would be my recommendation," depending on the exact amount the town would lose by doing so.

But Selectmen Leo Blair and Ron Ricci opposed the idea, arguing that the new Elms is a $3.6 million project and the developer has plenty of cash from fundraising and grants.


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Tracing the genesis of bank foreclosures that resulted in CHOICE buying the Elms property, Blair noted that the Harvard Municipal Affordable Housing Trust, of which he's a member, continued to pay the mortgages on the Elms and the Inn for some time after the Conservation Trust defaulted in order to forestall tenant evictions in the town's only affordable apartment buildings.

Ultimately, CHOICE bought the Elms property at a "significant discount," he said, noting that the mortgage was only $300,000 in the first place. "They already got a big bump up from the town" in that deal, Blair said, and in his view it was more than enough.

"If the MAHT hadn't stepped in, the bank would own both those properties," he said, even though that scenario played out before CHOICE entered the picture.

As for the state agency strongly backing the project and expecting the town to do the same, as Selectman Marie Sobalvarro pointed out, Blair said he wasn't scared of DHCD or of saying so in public. If the project had been an "unfriendly 40B they'd still be cheering for it," he said. Chapter 40B is a state law that allows developers to bypass some local zoning laws if their projects include a certain percentage of affordable housing units, basically giving the town no say.

Sobalvarro noted that CHOICE kept "the same number of affordable units" as the old Elms, which helps the town meet its state-mandated affordable housing percentage.

Chairman Stu Sklar said he tended to agree that the project is good for the town and that it might not be a bad idea to show support by waiving the fees. It seemed to him that CHOICE worked with the town and with neighbors to map out a plan that fit the town's character before moving ahead with a project that everybody seemed satisfied with.

"We like the design," Sklar ventured, and it's energy efficient. "As I recall, we encouraged CHOICE to pursue this."

Blair debunked the notion that CHOICE was a benevolent nonprofit and posited that the developer had plans set before presenting them.

Wallace persisted. "We encouraged them," she said, and it "looks small" to say otherwise now. "I'm embarrassed" to have this conversation."

"What if it were a private developer?" Blair challenged.

"It's not," Wallace shot back.

Tracing Blair's timeline from a different standpoint, she said that when the MAHT applied for Community Preservation Act funds, it indicated that some of that money might be made available to assist the CHOICE project, even though that didn't happen.

But Blair said it was "nuts" to consider using taxpayer funds, via any source, be it MAHT or CPA, to fund a project that would almost certainly bring the developer more revenue than went into it.

Ricci sided with Blair. "MAHT never committed any money to this project," he said.

But Wallace said that was all in the past. "We're trying to go forward," she said.

"I know more about this than you do," Blair told Wallace. Besides, it would set a precedent and he didn't want to do that.

When the proposal came to a vote, Blair questioned whether the board had the legal authority to waive the fees. Citing the "equal protection clause" in the U.S. Constitution, he suggested asking Town Counsel to weigh in on the matter.

With the ZBA looking for a reply in the next couple of days, the board voted anyway, with a majority agreeing to waive the fees if the cost to the town wasn't too high. Wallace, Sobalvarro and Sklar said yes. Ricci and Blair said no.