In 1955, in order to facilitate the construction of affordable housing, Massachusetts enacted General Law c. 40B, which enables a developer to obtain a single, comprehensive permit for the construction of any project that includes affordable housing units. Should a town deny the application for such a permit, the developer may appeal to the state-wide Housing Appeals Committee (HAC). The law arose in response to towns’ use of local laws to exclude affordable housing from their locale. In the present case, the developer, Hollis Hills LLC, sought a comprehensive permit, believing the sewer fees for its project in Lunenburg would be about $17,000 under applicable town bylaws, only to discover later that the town would invoke different bylaws, under which the fees soared to about $1.75 million.
Against its will, Lunenburg had previously been required by the HAC to grant Hollis Hills a comprehensive permit (see Zoning Board of Appeals of Lunenburg v. Housing Appeals Committee, 464 Mass. 38 (2013)), with the issue of sewer fees reserved for later determination. Subsequently, when reviewing the sewer fees at issue, the HAC ruled, after taking extensive evidence, that the bylaws relied on by the town for setting the fees so high had not even been enacted at the relevant time (i.e., the date the permit application was submitted) and therefore they could not be used to calculate the fees applicable to the project. The town appealed to the Superior Court, arguing that the HAC was wrong about the relevant time, had erroneously placed the burden on the town to prove what bylaws were in effect at that time, and had exceeded its powers by, supposedly, “invalidating” the town’s preferred set of sewer-fee bylaws, whose validity, so the town claimed, should have been presumed by the HAC. The court dismissed the appeal on grounds that the town had failed to preserve these issues below. The town then appealed to the Appeals Court, where it repeated its arguments.
NELF filed a brief supporting Hollis Hills and asking the Appeals Court to affirm the judgment below, albeit on substantive grounds, rather than on the procedural grounds cited by the trial judge. NELF pointed out that, under statute and case law, Massachusetts courts and adjudicatory agencies like the HAC are not permitted to take judicial notice of either the text or the effective date of local laws. In short, what local law governs is a question of fact that must be proven by the proponent, just as any other facts a party wishes to establish. The burden of proof was therefore properly placed on the town by the HAC, NELF contended, and the HAC’s ruling that the town had failed to carry its burden was therefore not an “invalidation” of the bylaws. NELF then demonstrated that the principle that the validity of laws is to be presumed applies only when there is a direct judicial challenge to a law’s validity, as occurred in all ten of the cases the town relied on to argue its point. Here, by contrast, the HAC was dealing with the antecedent evidentiary problem of determining what legal text counts as the apparently applicable law in the first place. NELF concluded its brief by discussing the aims of the comprehensive permit law and how the past use of local laws to exclude projects like Hollis Hills makes it imperative that a permit not be subject to local laws enacted after the developer submits its application.
On March 3, 2016, the Massachusetts Appeals Court, agreeing with NELF, affirmed the judgment below. Addressing the issue briefed by NELF, the court wrote: “Furthermore, the HAC did not purport to invalidate any of the town’s regulations; it decided simply that in this case, other than a charge of $125 per unit, no validly adopted sewer charge applies to the project. That this determination required the HAC to consider whether the town validly had adopted fees does not mean the HAC ‘invalidated’ any town regulations.”