Appeals Court Revokes 40B Permit in Landmark Ruling

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.