In a victory for the Nantucket Land Council (NLC) and similar land conservation groups, the Nantucket Superior Court ruled on June 22, 2021, that the Housing Appeals Committee (“HAC”) had erred when it denied the NLC the ability to intervene in their review of a comprehensive permit granted to a developer of a housing development under Chapter 40B.

 History:

Developer Nantucket Surfside, LLC appealed to the HAC in 2019 in order to expand its development beyond the scope allowed by Nantucket Zoning Board of Appeals in the conditions of their comprehensive permit. The Nantucket Land Council, a nonprofit environmental organization represented by Hill Law, has been an active voice of concern since the beginning of the project. The NLC asserts that the land the developer plans to clear-cut is crucial habitat for rare and endangered species on Nantucket, including many plants and animals such as the Northern Long-Eared Bat, a state-listed endangered species.

The Decision:

NLC was initially denied the right to intervene in the HAC’s administrative proceedings based on the mistaken assertion that the preservation of open space is not an interest protected by the Chapter 40B housing statute. The Nantucket Superior Court’s decision corrected the HAC’s “abuse of discretion and error of law”, holding unequivocally that “Chapter 40B does protect interests in preservation of open space.” (6/22/21 Ruling, p. 13, 18)  

In addition to recognizing the preservation of open space as a protected legal interest under Chapter 40B, the Court also found that NLC had legal standing to challenge the comprehensive permit, even without a local zoning bylaw that specifically regulates that interest. Prior to this decision, the HAC required that an intervenor be able to tie their grievance to a specific local bylaw or ordinance being waived for the project. Instead, the Superior Court ruled that NLC could rely on the Chapter 40B statute itself for standing: “A plaintiff may also establish standing by pointing to an interest recognized by the applicable statute”. (Id. at 13) The Court rejected the HAC’s “unreasonably cramped reading” of the law and adopted the broader view argued by NLC that “the protection of open space is a cognizable interest for purposes of standing.” (Id. at 16)

Before the Court could make these substantive rulings on the law, it first had to resolve the jurisdictional issue of first impression. Generally, when a non-party seeks to intervene, the denial of such a motion is automatically appealable because such an order is final as to the proposed intervener. But that rule has apparently never been applied to intervention in an administrative agency intervention like the one at issue here. The Court devoted the first half of the ruling to sort out why it had jurisdiction to hear this case now, and in fact determined that if it were not heard now, NLC’s appeal from the HAC’s denial of intervention would be “effectively unreviewable.” Being denied intervention as a party deprived NLC the opportunity “to create a record and argue for favorable content in the HAC’s decision”. (Id. at 9) By correcting this error, the Court assured that the NLC may now participate as a party when the HAC re-hears the matter.

This ruling clarifies the substantive law of intervention and standing in the context of Chapter 40B and HAC appeals, and it holds wider implications for future administrative law practice in the Commonwealth.

The June 22, 2021 Memorandum of Decision and Order in Nantucket Superior Ct. No. 2075-0021, Nantucket Land Council, Inc. v. Mass. Dep’t of Housing and Community Development, et al., can be viewed here.

In a letter dated October 6, 2016, the Massachusetts Historical Commission determined that a proposed c. 40B project at 1615 Beacon St. in the Waban village of Newton would have an “adverse effect” on the existing historic property, the Staples-Craft Wiswall Farmhouse, which is listed on the state and National register of historic places, as well as a Local Landmark in Newton. The project as proposed would entail building a new 24 unit, three story building with underground parking adjacent to the historic farmhouse on a site of less than three quarters of an acre. The project proponents are Charles Aggouras, Amos Eisenberg and Michael Moskowitz of 1615 Beacon, LLC, who are represented by Geoff Engler of SEB, LLC.

In its determination, MHC found that the “proposed new construction size and massing is overwhelming in relation to the historic farmhouse” and “encroaches” and “detracts from its historic landscape and setting.” The letter, signed by MHC’s Executive Director Brona Simon, initiates a “consultation process” that by regulation includes a site inspection, public hearing process, and consideration of alternatives to try to mitigate the adverse impact of the proposed project. 950 CMR 71.07

Approval is also required from the local Newton Historical Commission because the site is a designated local Landmark under Newton zoning. In its initial review of the project on July 28, 2016, the Newton Historical Commission voiced its unanimous and vehement opposition to the project.

While other c. 40B projects have previously been proposed for historic sites, this is believed to be the first such instance in which the Massachusetts Historical Commission has found an adverse effect, and the first made at an early stage of the process before a comprehensive permit has even been applied for. The neighborhood group in Waban, represented by Hill Law, sought the early determination from MHC. Please check back for future posts as this unprecedented situation develops.

In what seems to be an unashamed act of political reprisal, Newton Mayor Setti Warren refused to re-appoint Attorney Barbara Huggins for another full term on the ZBA.  Ms. Huggins is an experienced land use and zoning attorney and a partner in the firm Huggins & Witten, which serves as counsel to several municipalities around the Commonwealth on Chapter 40B matters, including recently Arlington and Stoneham.  She represented the Town of Stow in its defense of a permit issued for a controversial project that was overturned by the Appeals Court in 2015.  She has been in practice since 1993 and is a former Land Court law clerk.  

In denying Ms. Huggins another term, Mayor Warren stated “the reason for my decision was because her work in other communities has involved opposing 40B housing developments, which could give an appearance of bias.”  However, as the Newton Tab reported yesterday, Mayor Warren re-appointed two other members who have ties to 40B developers, including Bill McLaughlin, an executive vice president at Avalon Communities, which develops mega-Chapter 40B projects in towns across the Commonwealth. It appears that Ms. Huggins was replaced due to the Mayor’s disagreement with the positions of Ms. Huggins’ clients.   

In an important victory for environmental protection and sustainability, the Appeals Court last week struck down a Chapter 40B “comprehensive permit” in the Town of Stow, MA for a 37-unit apartment building on a mere two acres of land in the town’s Water Resource Protection District. See, Reynolds v. Stow Zoning Bd. of Appeals, Appeals Court No. 14-P-663 (Sept. 15, 2015). The Project’s single septic system would have been in close proximity to drinking water wells used by an abutting affordable housing complex and other single-family residences.  Like most suburban and rural communities, Stow has a set of local bylaws that are more restrictive than state laws governing septic systems. These laws are intended to protect not only water quality but wetlands, streams and other natural resources from the effects of wastewater and stormwater pollution.  The Zoning Board ignored the advice of its own engineering consultant and waived these bylaws for the Project, despite scientific evidence presented by neighbors (from hydrologist Scott Horsley) that the septic system would contaminate abutting wells.  

Under Chapter 40B, the state’s affordable housing permitting statute, local bylaws and regulations are viewed as “barriers” to the construction of multi-family, affordable housing, and there is a strong legal presumption that any “local concerns” associated with the waiver of these bylaws are outweighed by the need for affordable housing.  The precedent that has evolved over the last 40 years in our judicial system has made it nearly impossible for municipalities to deny Chapter 40B projects, or to deny requested waivers. Last week’s Appeals Court ruling is the first appellate-level decision (precedent) that we are aware of revoking a comprehensive permit on substantive grounds, and sends a clear message that Chapter 40B does not override local protection of water resources.  The decision will probably be cited to defend future municipal comprehensive permit decisions in which other public health, safety and environmental interests are at stake.

Hill Law represented the abutter/plaintiff in this case, from the initial Zoning Board hearings all the way to the Appeals Court.  The developer was represented by the Boston firm Goulston & Storrs.

The Land Use Report has learned that the Massachusetts Housing Appeals Committee’s powerful and long-serving chairman, Werner Lohe, will be retiring effective June 30, 2015. Lohe announced on June 2, 2015 at an HAC meeting that he would be accepting an early retirement offer from Governor Baker.

In a decision issued on June 25, 2014, the Appeals Court waded back into the muddy waters of “grandfathering” under the state Zoning Act, offering yet another opinion on what zoning relief is required when a property owner expands a nonconforming residential structure, the existence of which pre-dates the zoning bylaws to which it is nonconforming.  

As discussed in a previous post, the Appeals Court held in Gale v. Gloucester ZBA (2011) that the enlargement or expansion of a “grandfathered” residential structure (meaning one that does not comply in one or more respects to a zoning dimensional requirement like setbacks or height) that incidentally creates new dimensional nonconformities need only be approved through a special permit under G.L. c. 40A, s. 6, and does not require a zoning variance under Section 10, the standards for which are much tougher.  The house expansion proposal that was the subject of Gale would have made the existing yard setbacks, which were already shorter than required under the Zoning Bylaw, even shorter through an enlargement of the building’s footprint. This new encroachment into the setback would seem to constitute a new nonconformity.       

As we commented in the previous post, allowing “grandfathered” structures to create new zoning violations with merely a discretionary special permit, yet hold new, conforming structures to a higher variance standard was illogical, and contradicted long-standing precedent and public policy favoring the eventual elimination of all zoning nonconformities.  In its June 25th opinion in Deadrick v. Chatham ZBA, the Appeals Court seems to recognize this anomaly, but only as it relates to a new kind of nonconformity.  Specifically, the Court held that if a house that is nonconforming to setbacks or lot size wants to expand vertically, and in doing so violates the zoning bylaw’s height restriction for the first time, the height nonconformity would require a variance. However, the decision appears to require just a special permit for increases in existing nonconformities, even if such increases are, in effect, new nonconformities.  This was the ruling of the Land Court judge, Alexander Sands, which was affirmed by the Appeals Court.  The efficacy of this reasoning is therefore still open to debate.

Hill Law has obtained an unsigned “Interagency Agreement” dated January 17, 2014 purportedly between the Department of Housing and Community Development (“DHCD”) and four other housing subsidy agencies that provide financial assistance to residential development projects permitted under the state’s “comprehensive permitting” law known as Chapter 40B. Under the so-called “Agreement,” Chapter 40B developments approved with “project eligibility letters” after March 1, 2014 must provide one 3-bedroom unit for every 10 units built.  This requirement must be enforced by the subsidizing agency through the approval of the project, and execution of the regulatory agreement that typically follows the comprehensive permit.  

The rationale for this policy is the perception held by DHCD and others that Chapter 40B developers have intentionally steered away from larger-home proposals, as a concession to municipalities that are grappling with the financial impacts associated with the population growth facilitated by the state-mandated Chapter 40B.  The conventional wisdom is that projects that contain predominantly one- or two-bedroom units are less likely to attract families with children, and that units with young families are likely to cost the municipality more in municipal services than what would be generated through property tax revenue.  This policy is not unexpected - DHCD released a comprehensive fair housing report last year that suggested that policy changes would be made to encourage the growth of more family-oriented housing.  

The Massachusetts Department of Public Health announced on Friday that it had selected 20 dispensary applicants for the first medical marijuana licenses in the state following the successful 2012 initiative petition that legalized medical marijuana.  The complete list can be viewed at the DPH’s Medical Use of Marijuana Program’s website.  No licenses were awarded in Berkshire, Franklin, Dukes (Martha’s Vineyard) and Nantucket Counties, but DPH encouraged some “highly qualified” applicants who were not among those selected for their preferred location to consider alternative locations in those counties.  

The licenses are considered “provisional.”  DPH stated in its press release:

“All successful applicants will be required to demonstrate compliance with municipal rules, regulations, ordinances, and bylaws before opening. Dispensaries must also pass the MMJ Program’s inspection process prior to receiving full licensure. The inspection includes security, architectural review, growing requirements, and compliance with local zoning and laws.”

In another setback to municipal planning efforts, the state Housing Appeals Committee overturned a local zoning board of appeals denial of a Chapter 40B comprehensive permit to construct 248 apartments in an office and industrial park in Andover.  The case is Hanover R.S., LP v. Andover ZBA, HAC No. 12-04 (Dec. 17, 2013).  

The ZBA’s denial was predicated on the incompatibility of siting a large housing community in an isolated part of town, where residential uses were otherwise prohibited under the Town’s zoning bylaw.  Andover’s defense was buttressed by its relatively successful track record in permitting affordable housing, just below the state’s 10% benchmark at 9.3%.

Consistent with most of its prior rulings on this subject, the Committee discounted Andover’s housing initiatives and master planning efforts, and found that despite the Town’s proximity to the 10% holy grail threshold and the legitimacy of the Town’s planning efforts, the “regional need for housing” still outweighed these concerns. Senate Bill 72, sponsored by Jamie Eldridge of Acton and pending in the Joint Housing Committee where he is the chair, would amend Chapter 40B to allow denials based on an incompatibility with an affordable housing plan, where the plan has designated a viable alternative location for the proposed project.  Senator Eldridge’s bill contains a number of other commonsense reforms to the statute.

Governor Patrick’s Housing Chief, Aaron Gornstein, recently published a 309-page report examining barriers to affordable housing for disadvantaged members of our society.  The report, titled Analysis of Impediments to Fair Housing Choice, is particularly critical of municipal zoning and environmental protection laws, that Gornstein says are exclusionary to lower-income households.  On page 217, the report observes that suburban communities that “offer high-quality education, economic opportunity, and excellent public health outcomes are not accessible to persons of color and with disabilities, thereby perpetuating residential segregation.”  Despite the implication, the report does not specifically point to evidence that municipalities are intentionally excluding such populations, but rather are not facilitating inexpensive housing that would serve more people of color and with disabilities.

There are two important “take aways” from this report.  First, it presages a significant regulatory change under Chapter 40B. Sometime in 2014, the Department of Housing and Community Development with either amend its regulations or adopt a policy change that will give less weight age-restricted housing as compared to non-age restricted housing in a municipality’s Subsidized Housing Inventory.  This means that in cities and towns where Chapter 40B projects were approved with the expectation that the affordable units would help them achieve the “holy grail” 10% threshold under the statute, those units will suddenly have less value; either they will not count, or will count less, towards the 10% mark.  The likely result is that the 10% target will be moved farther away, requiring even more Chapter 40B projects to be approved to get to the elusive 10% goal.  

Second, in a strikingly candid shot across the bow, the Patrick report lays out the legal basis for a “test case” discrimination lawsuit that could be brought against municipalities with high housing costs.  In a section starting on page 239, the report suggests that legal action could be modeled after the historic “Mount Laurel” rulings from the New Jersey Supreme Court, basing a fair housing claim on the state’s constitution.  The theory, laid out in the report, is that zoning laws that restrict multi-family housing by right have the effect of excluding lower-income families, which are disproportionately minority and disabled populations.   The report states that “a legal challenge might focus on the extent to which municipalities have a pattern of denying family low income housing developments and/or imposing limiting conditions (eg, relative to bedroom distribution, age restrictions, income levels below 80% AMI, local residency preferences) that are ultra vires of its zoning authority under Chapter 40B.”  

For the last several years, the Chief Counsel at the Department of Housing and Community Development has hinted at such a challenge, viewing otherwise reasonable growth management techniques as sinister attempts to pull up the gates to exclude minorities and families with children.  Recognizing that these same communities are the ones with “high quality education” and “excellent public health outcomes,” the Patrick Administration’s answer seems not to be on improving the quality of life in the urban areas where housing is already inexpensive, but rather to artificially force housing prices to come down in areas where quality of life is already high.  However, this strategy requires communities to set aside growth management, planning and environmental concerns and forces urbanization and population growth in communities that have legitimate and rational (i.e., non-racist) reasons to resist.  The report does not mention how communities like Newton, Cambridge and Brookline, all of which have significant multi-family housing populations, fare in terms of housing affordability.  Housing does not become affordable in affluent communities merely by making it condos or apartments - affordability requires market restrictions such as rent control, which was about as popular in Massachusetts as the black plague.

This report should be a wake-up call to municipal leaders across the Commonwealth.  The Patrick Administration is clearly contemplating legal action, whether brought by the Commonwealth or one its proxies in the private non-profit sector. 

In an announcement causing shock waves today throughout the tight-knit community of housing authority commissioners and directors, Governor Patrick is proposing a major reorganization of public housing authorities in Massachusetts, centralizing the administration of public housing units into six regional agencies, replacing the 240 local authorities in cities and towns across the state. 

The Boston Globe reports that the state chapter of the National Association of Housing and Redevelopment Officials, which represents professional housing authority directors, is opposed to this plan.  The proposal requires legislative changes, and the Governor has a mountain to climb to muster support in the notoriously political and patronage-protecting General Court.