Opposing a Local Zoning Board’s Attempt to Block a Comprehensive Permit for Affordable Housing Based on a Misinterpretation of the Rules Governing Appeals to the Housing Appeals Committee
This case concerns a developer’s attempt to secure a comprehensive permit under c. 40B for a multi-unit dwelling in Scituate that would include affordable housing units. After protracted hearings, the local zoning board (“board”) denied a permit on the ground that a very small patch of the project site was defined as wetlands under the town’s regulations, and that local concerns therefore outweighed the regional need for affordable housing. The developer appealed to the Housing Appeals Committee (“HAC”), where the case was largely fought out over highly factual issues. The developer won the appeal and obtained its permit, but the board appealed the HAC’s decision to the Land Court, where the developer won again.
The board has now appealed to the Appeals Court and makes two legal arguments. Of these, NELF’s amicus brief concentrates on refuting the board’s view of what a developer must do to make out a prima facie case in an appeal to the HAC. The applicable regulation, 760 C.M.R. 56.07(2)(a)(2), states that an appellant establishes a prima facie case by proving “that its proposal complies [with] the federal or state statutes or regulations, or with generally recognized standards as to matters of health, safety, the environment, design, open space, or other matters of Local Concern.” The board contends that developers must prove compliance with restrictive local regulations as part of the prima facie case, not just with State and Federal law dealing with the same local concerns. NELF argues that, in making this argument, the board has misread the plain language of the regulation. Compliance with local regulations is not mentioned. In fact, compliance with restrictive local regulations is deliberately omitted from the developer’s prima facie case because the validity of such local concerns is precisely what is put into question by c. 40B as a matter of law. Because there is a history of towns using restrictive local rules as a means to keep affordable housing from being built within in their boundaries, the reasonableness of local rules and the validity of the local concerns they address are matters that must be established by a town as part of its case, before the developer can be required to accommodate the local rules.
The board’s approach would, in effect, present a great obstacle to developers seeking to construct housing that includes affordable units. In its brief, NELF focuses on construing the plain language of the regulation and explaining the public policy rationale for the regulation and why the board’s reading is in sharp conflict with the purposes of c. 40B. NELF expresses its view that the board’s reading, if affirmed, could have a disastrous effect on most developers’ ability to stay in the HAC and get a full review of a permit denial.
In a March 2014 decision, the Appeals Court agreed with NELF that the approach advocated by Scituate was inconsistent with the rationale of the comprehensive permit scheme and the role of the HAC in that scheme.
This case concerns a developer’s attempt to secure a comprehensive permit under c. 40B for a multi-unit dwelling in Scituate that would include affordable housing units. After protracted hearings, the local zoning board (“board”) denied a permit on the ground that a very small patch of the project site was defined as wetlands under the town’s regulations, and that local concerns therefore outweighed the regional need for affordable housing. The developer appealed to the Housing Appeals Committee (“HAC”), where the case was largely fought out over highly factual issues. The developer won the appeal and obtained its permit, but the board appealed the HAC’s decision to the Land Court, where the developer won again.
The board has now appealed to the Appeals Court and makes two legal arguments. Of these, NELF’s amicus brief concentrates on refuting the board’s view of what a developer must do to make out a prima facie case in an appeal to the HAC. The applicable regulation, 760 C.M.R. 56.07(2)(a)(2), states that an appellant establishes a prima facie case by proving “that its proposal complies [with] the federal or state statutes or regulations, or with generally recognized standards as to matters of health, safety, the environment, design, open space, or other matters of Local Concern.” The board contends that developers must prove compliance with restrictive local regulations as part of the prima facie case, not just with State and Federal law dealing with the same local concerns. NELF argues that, in making this argument, the board has misread the plain language of the regulation. Compliance with local regulations is not mentioned. In fact, compliance with restrictive local regulations is deliberately omitted from the developer’s prima facie case because the validity of such local concerns is precisely what is put into question by c. 40B as a matter of law. Because there is a history of towns using restrictive local rules as a means to keep affordable housing from being built within in their boundaries, the reasonableness of local rules and the validity of the local concerns they address are matters that must be established by a town as part of its case, before the developer can be required to accommodate the local rules.
The board’s approach would, in effect, present a great obstacle to developers seeking to construct housing that includes affordable units. In its brief, NELF focuses on construing the plain language of the regulation and explaining the public policy rationale for the regulation and why the board’s reading is in sharp conflict with the purposes of c. 40B. NELF expresses its view that the board’s reading, if affirmed, could have a disastrous effect on most developers’ ability to stay in the HAC and get a full review of a permit denial.
In a March 2014 decision, the Appeals Court agreed with NELF that the approach advocated by Scituate was inconsistent with the rationale of the comprehensive permit scheme and the role of the HAC in that scheme.
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