Board of Appeals of the City of Amesbury v. Housing Appeals Committee and Attitash Views, LLC  

(Massachusetts Supreme Judicial Court)

• Battling Against Attempts to Thwart Permitting for Affordable Housing

This case concerns a municipality’s apparent attempt to thwart the operation of the comprehensive permit law by imposing extraordinary conditions on a comprehensive permit issued to a developer of affordable housing.  The Massachusetts comprehensive permit act, G. L. c. 30B, §§ 20-23, encourages the construction of much-needed low- and moderate-income housing by allowing a developer of such housing to make a single, comprehensive application to the local zoning board of appeals (“board”) for all required permits.  If the board approves the comprehensive permit, it may make the permit subject to conditions.  If appealed, these conditions cannot be altered by the Housing Appeals Committee unless they are found to render the project uneconomic.  In this case the Amesbury board approved a comprehensive permit with conditions that deal with subjects lying far outside the purview of any of the individual local permitting authorities (like the building inspector) for whom the board substitutes under the act.  Among other things, these conditions dealt with the timing of the sale and marketing of the housing, the content of specific legal documents to which the city would not be a party, the extent of allowable profits, etc.  When the developer appealed, the Housing Appeals Committee struck the conditions as outside the scope of the Amesbury board’s power.  Amesbury then appealed to the courts under G. L. c. 30A, contending that there were no limitations to the kinds of conditions it may impose and contesting the Housing Appeals Committee’s power to strike conditions without first finding that they render the project uneconomic.  The trial court judge upheld the Housing Appeals Committee’s decision.  The case is now pending on direct appellate review in the SJC, where NELF has filed an amicus brief in support of the developer.  In its brief, NELF argues that the Board’s power under the statute to impose conditions “without limitation” is qualified, under the interpretive principle of ejiusdem generic (i.e., “[things] of the same kind”), by the list of traditionally limited local concerns set out in the statute itself as illustrating that, in fact, the board only acts solely in lieu of local permitting authorities and that the scope of its authority is limited by the authority of those bodies.  NELF also shows that this limitation is reflected elsewhere in the statutes.  NELF then lays a legal foundation for the Housing Appeals Committee’s power to strike ultra vires conditions.  NELF argues that the Housing Appeals Committee’s long-established policy of removing such conditions should be viewed as the exercise of an implied and necessary agency power arising from the statutes and regulations that limit the Board’s ability to impose conditions.  NELF also argues that since, through its adjudicatory decision-making, the Housing Appeals Committee develops and clarifies the Department of Housing and Community Development’s interpretation of affordable housing law, the Committee’s policy decision concerning how to handle ultra vires conditions is entitled to deference from the Court.