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.

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.  

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.