Woburn Board of Appeals v. Housing Appeals Committee

(Massachusetts Supreme Judicial Court)

• Supporting Construction of Affordable Housing for the Massachusetts Work Force

This case raises a new wrinkle in the interpretation of G. L. c. 40B, §§ 20-23, (“Chapter 40B”)—namely, whether it is permissible for the Housing Appeals Committee, which has administrative jurisdiction over developers’ appeals on comprehensive permit issues, to treat municipal approval of a comprehensive permit with onerous conditions (here, a halving of the number of requested units) as the functional equivalent of a denial.  HAC has decided that approvals with onerous conditions may constitute “constructive denials” that shift the burden to the local zoning board to demonstrate that the conditions are consistent with local needs for affordable housing.  If the approval with conditions is not treated as a constructive denial, the burden is on the developer to prove that the conditions are “uneconomic,” which can be difficult and expensive.  NELF filed an amicus brief in support of HAC’s determination that the Woburn Board of Appeals’ action in this case was a constructive denial.  NELF argued, inter alia, that it will thwart the legislative purpose of encouraging the development of affordable housing if local zoning boards are allowed to change the standard of review of their actions simply by granting permits with onerous conditions rather than denying them outright.  NELF further reiterated and elaborated on the public policy arguments that it made in the Jepson case with respect to the critical need for Chapter 40B affordable housing projects to remedy the shortage of affordable housing for the Massachusetts work force that is harming the local economy.