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. 40B, §§ 20-23, encourages the construction of much-needed low- and moderate-income housing by allowing a developer 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 to the Housing Appeals Committee (“HAC”), these conditions cannot be altered unless the HAC first finds that they render the project uneconomic.
In this case the Amesbury board approved a comprehensive permit but imposed conditions dealing with subjects lying far outside the purview of individual local permitting authorities (like the building inspector) for whom the board substitutes under the act. When the developer appealed, the HAC 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 limits on the kinds of conditions it may impose and contesting the HAC’s power to strike conditions without first finding that they render the project uneconomic. The trial court judge upheld the HAC’s decision, and the city appealed again.
NELF filed an amicus brief in support of the developer. NELF argued that while the statute describes the board’s power to impose conditions as “without limitation,” the power is unlimited only within the narrow range of traditional local concerns illustrated and described in the statute. NELF argued that the HAC’s power to strike conditions when they stray outside these limits derives from three sources: statute, regulation, and agency adjudication. NELF argued that the HAC’s long-established policy of removing such ultra vires conditions rests on implied and necessary agency powers granted by statute. NELF further argued when such policies are promulgated through HAC decisions, they are entitled to deference because they represent agency interpretations of affordable housing laws, including the agency’s own regulations.
In its September 2010 decision, the SJC upheld the HAC’s removal of the conditions. The Court ruled that the act narrowly limits the board’s role to protecting traditional areas of local concern. The Court also found that the HAC, in removing the conditions, need not first find that they rendered the project uneconomic. In explaining the legal basis for its decision, the Court closely followed the roadmap laid out in NELF’s brief not only in reasoning and citations but also occasionally even in wording.
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. 40B, §§ 20-23, encourages the construction of much-needed low- and moderate-income housing by allowing a developer 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 to the Housing Appeals Committee (“HAC”), these conditions cannot be altered unless the HAC first finds that they render the project uneconomic.
In this case the Amesbury board approved a comprehensive permit but imposed conditions dealing with subjects lying far outside the purview of individual local permitting authorities (like the building inspector) for whom the board substitutes under the act. When the developer appealed, the HAC 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 limits on the kinds of conditions it may impose and contesting the HAC’s power to strike conditions without first finding that they render the project uneconomic. The trial court judge upheld the HAC’s decision, and the city appealed again.
NELF filed an amicus brief in support of the developer. NELF argued that while the statute describes the board’s power to impose conditions as “without limitation,” the power is unlimited only within the narrow range of traditional local concerns illustrated and described in the statute. NELF argued that the HAC’s power to strike conditions when they stray outside these limits derives from three sources: statute, regulation, and agency adjudication. NELF argued that the HAC’s long-established policy of removing such ultra vires conditions rests on implied and necessary agency powers granted by statute. NELF further argued when such policies are promulgated through HAC decisions, they are entitled to deference because they represent agency interpretations of affordable housing laws, including the agency’s own regulations.
In its September 2010 decision, the SJC upheld the HAC’s removal of the conditions. The Court ruled that the act narrowly limits the board’s role to protecting traditional areas of local concern. The Court also found that the HAC, in removing the conditions, need not first find that they rendered the project uneconomic. In explaining the legal basis for its decision, the Court closely followed the roadmap laid out in NELF’s brief not only in reasoning and citations but also occasionally even in wording.
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