Recent decisions under the Comprehensive Permit Law

Issue Vol. 10 No. 1 January 2008 By Gary S. Brackett and Heather W. Kingsbury

Mass. Gen. Laws c. 40B (the “Act”) continues to create novel questions of interpretation nearly forty years after its adoption. The courts are asked to resolve the tension between developers of affordable housing projects and opponents who feel that such projects infringe on the authority of a municipality to regulate use of land. Local zoning boards of appeal are responsible for balancing these interests under the regulatory framework. Recent decisions of the Supreme Judicial Court seem to resolve the tension in favor of promoting increased affordable housing in light of the statutory goal of eliminating exclusionary zoning practices.

Mass. Gen. Laws c. 40B, §20 allows a developer to obtain a permit for a project containing an affordable housing component through a streamlined process in which the applicant submits a single application to the zoning board of appeals rather than separate applications to several boards for the various approvals that would otherwise be necessary. The zoning board is authorized to grant a comprehensive permit subject to conditions that are “consistent with local needs” and may waive local requirements and regulations of its own, and of other boards, in the process. Pursuant to §20 of the Act, local requirements and regulations are deemed “consistent with local needs” and, therefore, may be imposed upon a project, when a community has satisfied one of three statutory minima with respect to the provision of affordable housing. For example, a community in which 10% of the housing units are “affordable,” as determined by the Massachusetts Department of Housing and Community Development (“DHCD”), has satisfied its minimum requirement and may impose its zoning regulations on a project proposed pursuant to Chapter 40B. More than fifty municipalities have achieved this statutory goal , raising new questions as to the proper procedures and standards applicable to requests for comprehensive permits in these municipalities.

In the recent case of Jepson v. Zoning Board of Appeals of Ipswich, the Supreme Judicial Court considered whether a zoning board may override local zoning requirements that would otherwise apply to a commercial component of a comprehensive permit project in the particular zone. 450 Mass. 91 (2007). The YMCA sought to construct forty-eight rental housing units in two structures, one of which would also include 8,220 square feet of commercial space. The commercial use was allowed in the zoning district, but the proposed project did not conform to certain dimensional requirements that would otherwise be applicable to such a use. The zoning board waived these dimensional requirements and granted the permit. Certain abutters appealed the decision. The Court focused on the legislative goals of Chapter 40B, namely, to provide flexibility in order to promote the continued development of affordable housing by offering financial incentives to developers. The Court extended that flexibility to projects containing incidental commercial components and categorized its decision as another example of circumstances under which local concerns must yield to the need for affordable housing. The Court’s ruling is limited, however, to affordable housing projects containing incidental commercial uses and would not permit a housing development proposed as a pretext for commercial development.

In the Town of Amherst, the question recently arose as to whether a local board of appeals may employ the “regional needs” test, or whether the zoning laws must be imposed in the usual way, once a municipality has satisfied one of the statutory minima. At issue in Boothroyd v. Zoning Board of Appeals of Amherst was the grant of a comprehensive permit for twenty-six units of rental housing notwithstanding the fact that Amherst had reached the 10% threshold. 449 Mass. 333 (2007). The zoning board found a continuing need for affordable housing in Amherst, despite satisfaction of the statutory requirement, as evidenced by the 870 families on the waiting list who would have to wait three to six years for affordable housing in town. The Court conducted a thorough statutory construction analysis and held that a local board of appeals has discretion to decide whether or not to impose local zoning laws once the minimum has been satisfied. The Court further held that its interpretation would not compromise local autonomy, as local boards in 10% communities maintain the discretion to impose zoning requirements if they choose to do so.

Currently pending before the Supreme Judicial Court is an application for further appellate review of the Appeals Court’s decision in the matter of Levin v. Board of Appeals of Framingham. 70 Mass.App.Ct. 1113 (2007) (unpublished opinion). This case raised the same issue as to the authority of the zoning board of appeals in a community that has reached the 10% threshold and was pending before the Appeals Court when Boothroyd was decided. Since the Boothroyd decision resolved that issue, the Appeals Court focused instead on the question of the plaintiffs’ standing, an issue impacted by another timely decision of the Supreme Judicial Court in Standerwick v. Zoning Board of Appeals of Andover. Standerwick enunciated the types of harm that would confer standing upon a plaintiff challenging the grant of a comprehensive permit and held that only the interests protected by Chapter 40B are legally cognizable, namely: 1) protection of the safety and health of the town’s residents; 2) development of improved site and building design; and 3) preservation of open space. 447 Mass. 20 (2006). Diminution of property value in and of itself is not a legally cognizable claim. Standerwick was decided on the fifth day, but prior to the conclusion, of trial in the Levin case. Shortly thereafter, the developer filed a motion for reconsideration of the Land Court’s pre-trial decision on an earlier motion for summary judgment. The Motion for Reconsideration argued that Standerwick required a holding contrary to the Land Court’s earlier ruling as to the plaintiffs’ standing. The plaintiffs argued that the motion for reconsideration was improper because the developer had waived the issue of standing at the outset of trial. Although standing is jurisdictional and may be raised by a party at any time or by the Court on its own motion, waiver of the issue is significant in a case where the plaintiffs may establish standing by virtue of a presumption that operates conclusively unless the opponent submits evidence challenging the presumption. On reconsideration the Land Court held, and the Appeals Court agreed, that the plaintiffs had failed to demonstrate standing. The plaintiffs’ petition for rehearing and application for further appellate review are pending.

The matter of Woburn Board of Appeals v. Housing Appeals Committee, pending before the Supreme Judicial Court on direct appellate review, presents another novel issue that has not been addressed by any appellate court to date. Docket No. SJC-10014. The applicant in this case originally presented a proposal to construct 640 units of housing on a 75 acre parcel. The zoning board approved the project at 300 units and included requirements for certain mitigation relating to infrastructure and traffic issues. On appeal, the Housing Appeals Committee (“HAC”) concluded that the applicant had failed to meet its burden under the statute that the project was rendered uneconomic as a result of the limitation of units and the conditions. However, the HAC then proceeded to require that the zoning board approve the project at 420 units. Both parties appealed to the Superior Court. The Superior Court affirmed the finding that the applicant had failed to meet its burden before the HAC but held that the zoning board’s decision constituted a “de facto” denial. The Court also concluded that, on the applicant’s appeal, the HAC determination of the 420 unit density was unsupported by substantial evidence. The matter was remanded to the HAC to present a number which was supported by the record of the hearing. Despite the zoning board’s objection, the HAC allowed the applicant to present two new proposals, each of which contained 540 units, during the remand proceedings, and eventually approved the project at 540 units, without specifying which of the two proposals had been approved. The Superior Court affirmed the HAC decision after remand and the zoning board appealed. The issue before the Supreme Judicial Court is whether the HAC, on appeal from a zoning board’s decision approving a comprehensive permit with conditions, or the Superior Court, on appeal from a decision of the HAC, has the authority to convert an approval with conditions to a “de facto” denial. The initial determination of whether a decision constitutes an approval with conditions or a denial affects the parties’ burdens on appeal before the HAC. When a project has been approved with conditions that render the project uneconomic, the developer may appeal the board’s decision to the HAC. The developer bears the burden of demonstrating that the conditions render the project uneconomic and, if so, the board must prove that the conditions are consistent with local needs. By contrast, on appeal from an outright denial of a project, the board bears the initial burden of proving that the denial is consistent with local needs. Oral argument was held on February 4, 2008. The SJC is expected to establish the proper allocation of burdens on appeal from an approval with conditions reducing the number of units.

On the same day as the Woburn case, oral arguments were also held before the SJC in the matters of Town of Hingham v. Department of Housing and Community Development, Docket No. SJC-10013, and Town of Wrentham Zoning Board of Appeals v. West Wrentham Village, LLC, Docket No. SJC-10066. The Hingham case involves a challenge to a determination by DHCD that only 25% of the units comprising a rental housing development will be included in the Subsidized Housing Inventory (“SHI”). The Town of Hingham argues that this determination runs contrary to existing DHCD regulations requiring 100% of the units in a rental development to be included in the SHI, even where only a fraction of the units are designated as “affordable”. If all of the units in the proposed project were included in the SHI, Hingham would exceed its statutory requirement for provision of affordable housing. The Wrentham case raises the issue of whether a zoning board in a community that has reached the statutory minimum must hold a hearing on the merits of an application for comprehensive permit, or whether such an application may be denied solely on the basis that the town has met its obligation.

Notably, a recent petition to repeal Chapter 40B failed in obtaining the required number of signatures to place the initiative on the 2008 ballot. It appears for now that communities will continue to be able to exercise broad powers to promote the development of affordable housing in accordance with the Courts’ interpretation of the existing statute.