HADLEY — A $66,000 contribution to the Affordable Housing Trust Fund is being made by the developer of a housing subdivision in North Hadley, even though his attorney contends that the town’s system of extracting such payments in exchange for approvals to build homes may be unconstitutional.

While the Planning Board and developer Peter Gelinas reached an agreement at Tuesday’s meeting of $11,000 for each of the six homes that have been constructed at Colony Estates, Northampton attorney Alan Seewald told board members that they have no basis for demanding significant payment to the trust and also no specific method for calculating such a payment, and instead are “pulling numbers out of the air.”

“It is patently unconstitutional to require Mr. Gelinas to give away some of his land to get a subdivision approved,” Seewald said.

Board Chairman James Maksimoski said he appreciates Seewald’s knowledge of the law, but disagreed that the town’s rules are illegal.

“Town counsel and the attorney general approved all that stuff,” Maksimoski said.

In reaching a compromise after Seewald initially offered $40,000, planners acknowledged that the bylaw is flawed and not working well. The payment from Gelinas will be added to $350,000 committed by Amherst developer Barry Roberts for constructing the 35-unit East Street Commons for people 55 and over.

The challenge for town planners is how to translate these payments into ensuring that at least 10% of the town’s housing stock remains affordable, a threshold mandated by the state’s Chapter 40B law.

Maksimoski said the board had been looking to charge a very realistic fee “which will be exorbitantly high” to ensure that money is available to build affordable units.

“We are struggling to get an equitable payment, there’s no doubt about that,” Maksimoski said.

Seewald also used his platform to criticize the entire manner of requiring payments.

“May I suggest that the proper way to do affordable housing zoning is not with a stick but with a carrot,” Seewald said.

He said that modern way is to offer a developer an opportunity to build additional units, through incentive zoning that increases the density and reduces setbacks, and then having an added unit preserved as affordable in perpetuity.

“The truth is your stick zoning doesn’t work and you don’t have any regulations for payments in lieu, which you’ve had on the books for many, many years,” Seewald said. The flaws are clear due to the trouble planners have in administering and applying the rules, he said: “You don’t have those regulations, you don’t have a bylaw that has produced any affordable units to speak of.”

The meeting, held virtually, also got tense when Seewald first suggested the town’s bylaw is unconstitutional. “I think you’re out of line,” Planning Board member Michael Sarsynski responded.

Seewald then offered his credentials in being an instructor at the University of Massachusetts: “I’ve taught constitutional law at UMass,” Seewald said. 

“Big deal,” Sarsynski replied.

Later in the meeting, Sarsynski apologized for his response. “Excuse me for losing my temper there, Mr. Seewald,” Sarsynski said.

Board member Joseph Zgrodnik also took exception to some of Seewald’s comments, noting that Hadley has fulfilled its commitment to affordable housing, even if, as Seewald contended, the town bylaw should require affordable units to be provided directly, rather than having a payment option.

In fact, Zgrodnik said, Hadley’s inclusionary zoning rules have allowed the town to maintain over 10% affordable housing, and a higher percentage than Northampton, where Seewald serves as city solicitor. 

“Don’t tell us how to zone our town, because I think we’ve done a commendable job for affordable housing,” Zgrodnik said.

Scott Merzbach can be reached at smerzbach@gazettenet.com.

 

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