Taylor v. Board of Appeals
Taylor v. Board of Appeals
Opinion of the Court
The board of appeals of Lexington (board) granted a comprehensive permit to the defendants Posing Tide Development, LLC, and RTD Greenhouse, LLC (developers). The plaintiffs (abutters) appealed that decision to Superior Court pursuant to G. L. c. 40B, § 21 (abutters’ appeal). The developers appealed the same decision to the Housing Appeals Committee (HAC), G. L. c. 40B, § 22 (HAC appeal). After the HAC acted on the developers’ appeal, the abutters appealed that HAC decision to Superior Court pursuant to G. L. c. 40B, § 22, and G. L. c. 30A, § 14. After the judge granted the developers’ motion for summary judgment in the abutters’ appeal, the abutters appealed to this court. This case requires us to construe the relationship between the abutters’ and the developers’ separate rights when each appeals the same decision of the local board pursuant to G. L. c. 40B, § 21, and G. L. c. 40B, § 22, of the Low and Moderate Income Housing Act (Act),
Comprehensive permitting. The general statutory scheme governing applications for comprehensive permits pursuant to the Act is described by the Supreme Judicial Court in Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 345-346 (1973). See Zoning Bd. of Appeals of Wellesley v. Ardemore Apts. Ltd. Partnership, 436 Mass. 811, 814-816 (2002). Accordingly, we set forth the relevant portions of the Act only briefly.
In an effort to provide a streamlined process for the issuance of permits required to construct affordable housing and to avoid the lengthy delays that sometimes pervade the permitting process, see Milton Commons Assocs. v. Board of Appeals of Milton, 14 Mass. App. Ct. 111, 117 (1982), G. L. c. 40B, §§ 20-23, allows “qualified builder[s] wishing to build low or moderate income housing [to] file with a local board of appeals an application for a comprehensive permit instead of filing separate applications with each local agency having jurisdiction over the project.” Zoning Bd. of Appeals of Wellesley v. Housing Appeals Comm., 385 Mass. 651, 656 (1982).
If the local zoning board approves the application, but does so with conditions that a developer alleges render the project uneconomic, or if the board denies the permit in its entirety,
In contrast, an abutter or other party aggrieved by the issuance of a comprehensive permit or approval may appeal to a court pursuant to the zoning appeal procedures provided for in G. L. c. 40A, § 17
The Act, therefore, creates two separate appeal mechanisms, and the relevant mechanism to be employed in a given situation is dependent upon the identity of the appealing party. For aggrieved parties such as the abutters here, a right of appeal is provided to the courts. Permit applicants, by contrast, must appeal to a specialized administrative tribunal, the HAC. This case requires us to consider how these two distinct avenues of appeal interact when, as here, both the abutters and the developers timely exercise their statutory rights to appeal, and both parties challenge the same action of the board.
Background facts and proceedings. Given their relevance to our disposition, the factual background and procedural history of the dispute must be set forth in some detail. On January 31, 2002, the developers applied to the board for a comprehensive permit to construct forty-eight units of residential housing (project) on land located at 536-540 Lowell Street in Lexington. The permit application was filed pursuant to G. L. c. 40B, §§ 20-23.
On January 23, 2003, the board issued a comprehensive
Meanwhile on March 19, 2003, the abutters moved to intervene in the HAC appeal. Although their motion was not ruled upon until the HAC issued its decision on June 14, 2005, the abutters, through counsel, were permitted to participate in the HAC proceedings as amici.
After obtaining the aforesaid decision from the HAC, the developers filed a motion for summary judgment on October 19, 2005, seeking to dismiss the abutters’ appeal. The developers asserted that the comprehensive permit originally issued by the board, which was the subject of the abutters’ appeal, was no longer operative and had been extinguished and superseded by a different comprehensive permit bearing the modifications imposed by the HAC. The judge accepted this analysis and concluded that the HAC modification decision rendered the abutters’ appeal moot, and that the abutters’ only available
On appeal, the abutters argue that the judge erred in allowing the developers’ motion for summary judgment both because genuine issues of material fact are extant, and because it was error to conclude that their G. L. c. 40B, § 21, appeal to the Superior Court was mooted by the decision of the HAC.
Summary judgment standard. A motion for summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and responses to request for admission under [Mass.R.Civ.P. 36, 365 Mass. 795 (1974)], together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass.R.Civ.P. 56, 365 Mass. 824 (1974). The developers, as moving parties, have the burden of establishing “that there are no material issues of fact and that [it] is entitled to judgment as a matter of law.” Highlands Ins. Co. v. Aerovox, Inc., 424 Mass. 226, 232 (1997). On appeal, “[a]n
Discussion. The judge concluded that the entirety of the abutters’ appeal was moot as matter of law, and thus he did not address their assertion of the existence of genuine issues of material fact. Given this basis for the court’s allowance of the developers’ motion, we must address the somewhat perplexing question of the interaction between an abutter’s appeal filed directly in Superior Court and a developer’s appeal filed initially with the HAC and then subject to further judicial review in Superior Court under G. L. c. 30A.
In the appeal before this court, the two sides advance different theories of how appellate rights are to be pursued when there are concurrent proceedings in Superior Court and before the HAC. The developers urge that the appropriate analysis is relatively simplistic, that is, when a modified comprehensive permit is issued by the HAC, a rather mechanical mootness analysis applies, i.e., the abutters’ appeal directed at the original permit is per se mooted because there is in effect a “new” comprehensive permit, with different terms and conditions. In contrast, the abutters assert that there are more complex matters at hand that involve different standards of review, less fulsome rights of intervention and varying legal challenges available in one venue of appeal, but not in the other. The abutters contend that the procedural and jurisdictional distinctions between the two mechanisms for appeal, as well as the deferential standard of review applicable in G. L. c. 30A judicial review of the HAC “administrative” decision, make clear that participation in a HAC proceeding does not provide the procedural and substantive protections afforded an aggrieved abutter under a zoning appeal litigated in Superior Court pursuant to G. L. c. 40A, § 17.
We turn then to the differing rights of appellate review extant
We begin with the point that the Act does indeed provide for two distinct avenues of appeal. While developers may challenge unfavorable zoning board decisions in the HAC, “persons aggrieved” may pursue relief only in the courts. See G. L. c. 40B, §§ 21-22; G. L. c. 40A, § 17. Both routes of appeal permit de nova review of the board’s decision.
To hold (as the developers urge) that the abutters’ appeal is automatically rendered moot by the HAC’s modification of the original permit effectively renders a statutory enactment, the provision in G. L. c. 40B, § 21, of a right to appeal for persons
Furthermore, the differences between zoning appeals to the courts under G. L. c. 40A, § 17, and administrative appeals to the HAC, followed by an appeal pursuant to G. L. c. 30A, are not insignificant.
Second, although parties such as the abutters here may be permitted to intervene in an HAC proceeding, intervention is allowed at the discretion of the presiding officer
Third, when a zoning board grants a comprehensive permit but attaches conditions thereto, the HAC’s review is confined to a determination whether the conditions imposed by the zoning board render the proposed development uneconomic, and whether those conditions are consistent with local needs. G. L. c. 40B, § 23. See, e.g., Board of Appeals of Hanover v. Housing Appeals Comm., supra at 346. When permitted to intervene in HAC proceedings, aggrieved persons are thus limited to addressing only these two questions. Further, additional limitations on the scope of a party’s intervention may be imposed by the presiding officer at her discretion. See 760 Code Mass. Regs. § 30.04(2).
By contrast, while the local need for affordable housing is certainly relevant in an appeal filed by an abutter or other aggrieved person under G. L. c. 40A, § 17 (as directed by G. L. c. 40B, § 21), no statutory or regulatory language limits such an appeal to the narrow questions whether conditions are uneconomic and inconsistent with local needs.
Such distinctions between the G. L. c. 40B, § 21, and G. L. c. 40B, § 22, appeals, and most importantly the unambiguous
We are mindful of the developers’ concern that allowing the abutters’ appeal to proceed could, in some cases, impede the statutory purpose of creating affordable housing without undue delay. As the Supreme Judicial Court has stated, “the Legislature’s intent in passing [the Act] was to provide relief from exclusionary zoning practices which prevented the construction of badly needed low and moderate income housing.” Board of Appeals of Hanover v. Housing Appeals Comm., supra at 353-354. See, e.g., Dennis Hous. Corp. v. Zoning Bd. of Appeals of Dennis, 439 Mass. 71, 76 (2003). “In addition to streamlining the permitting process itself, the clear intent of the Legislature was to promote affordable housing by minimizing lengthy and expensive delays occasioned by court battles commenced by those seeking to exclude affordable housing from their own neighborhoods.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. at 29. See Milton Commons Assocs. v. Board of Appeals of Milton, 14 Mass. App. Ct. at 118 (noting “the legislative intent to effect an expedited procedure”). Yet, effectuation of the Act’s purpose of providing affordable housing is not limitless. For example, “the interest in the provision of critically needed affordable housing must be balanced against the statutorily authorized interests in the protection of the safety and health of the town’s residents, development of improved site and building design, and preservation of open space.” Standerwick v. Zoning Bd. of Appeals of Andover, supra at 31. The abutters’ statutorily authorized right to appeal must likewise be balanced against the Act’s principle objective. Indeed, while crafting legislation primarily aimed at alleviating the Commonwealth’s affordable housing crisis, see Board of Appeals of Hanover v. Housing Appeals Comm., supra at 349 (referencing Report of the Legislative Research Council relative to Restricting the Zoning Power to City and County Governments, 1968 Senate No. 1133), within the same statute the Legislature also provided both developers and aggrieved persons with the ability to appeal. See G. L. c. 40B, §§ 20-23.
There can be no doubt that the realization of both parties’
Because the Act may be interpreted in a way that renders the provision of an aggrieved party’s right to appeal ineffective only if it is impossible to provide “a construction that would lead to a logical and sensible result,” see Adamowicz v. Ipswich, 395 Mass. at 760, quoting from Lexington v. Bedford, 378 Mass. 562, 570 (1979), and given that there has been no adequate showing of impossibility here, it was error for the court to conclude that the HAC decision mooted the abutters’ right to appeal. The case is therefore remanded for further consideration in light of this opinion.
We note that the HAC directed the board to issue an amended comprehensive permit, and that because the HAC’s order was not acted upon by the board within thirty days, that order is now deemed the action of the board. See G. L. c. 40B, § 23. The developers assert that if the abutters pursue a judicial appeal of the board’s grant of the original comprehensive permit now that the HAC has ordered modification of that permit, either the abutters’ appeal or the HAC decision is rendered futile and could result in wasted judicial or administrative resources. However, because we hold that on the facts and circumstances of this case the abutters’ right to judicial appeal is not destroyed by the developers’ success in obtaining a modified permit in the HAC, the fact that the version of the permit
On remand, the parties may wish to assist the court by providing suggestions as to how both parties’ rights to appeal may be effectuated meaningfully and without jeopardizing the important interests of creating affordable housing and furthering judicial efficiency. For example, the abutters suggest that they could amend the complaint in their G. L. c. 40B, § 21, appeal to reflect changes to the comprehensive permit as it emerged from the HAC, and that the Superior Court could stay that appeal pending disposition of their G. L. c. 30A, § 14, appeal of the HAC decision. Further consideration of this matter on remand might be greatly facilitated by the parties’ participation in a conference pursuant to Mass.R.Civ.P. 16, 365 Mass. 764 (1974),
So ordered.
Given its purpose, the Act is sometimes referred to as the anti-snob zoning act. See, e.g., Zoning Bd. of Appeals of Wellesley v. Ardemore Apts. Ltd. Partnership, 436 Mass. 811, 814 (2002).
The HAC, located within the department of housing and community development, was created for the specific purpose of hearing “petitions for review filed under section twenty-two of chapter forty B.” G. L. c. 23B, § 5A.
General Laws c. 40B, § 21, as amended by St. 1975, c. 808, § 4B, provides in pertinent part:
“Any person aggrieved by the issuance of a comprehensive permit or approval may appeal to the court as provided in section seventeen of chapter forty A.”
The relevant portion of G. L. c. 40A, § 17, as amended by St. 2002, c. 393, § 2, states:
“Any person aggrieved by a decision of the board of appeals . . . or by the failure of the board ... to take final action concerning any . . . application . . . within the required time . . . may appeal to the land court department, the superior court department in which the land concerned is situated or [to the housing court department in certain regions], or to the division of the district court department within whose jurisdiction the land is situated ... by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk.”
Pursuant to St. 2006, c. 205, “an act relative to streamlining and expedit
There is no claim of improper or insufficient procedure before the board. See G. L. c. 40A, § 11; G. L. c. 40B, § 21.
General Laws c. 40B, § 20, defines “[l]ow or moderate income housing” as “any housing subsidized by the federal or state government under any program to assist the construction of low or moderate income housing as defined in the applicable federal or state statute, whether built or operated by any public agency or any nonprofit or limited dividend organization.” MHFA is the project’s subsidizing agency.
In its decision, the HAC allowed the abutters’ motion to intervene, but limited the abutters to addressing only the issue of density, less than the scope of G. L. c. 40B, § 21, grievances.
The term “exclusionary zoning” refers to those practices that “ ‘prevented the construction of badly needed low and moderate income housing’ in the Commonwealth.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 29 (2006), quoting from Board of Appeals of Hanover v. Housing Appeals Comm.., 363 Mass. at 354. A combination of zoning measures such as “minimum lot size requirements, green space zoning, minimum frontage and setback requirements . . . [and] building height limitations” may result in such exclusionary zoning. See Board of Appeals of Hanover v. Housing Appeals Comm., supra at 348.
By contrast, when a party appeals from a decision of the HAC pursuant to G. L. c. 30A, § 14, the administrative body’s decision “must be upheld if it is supported by substantial evidence. Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion.” Zoning Bd. of Appeals of Wellesley v. Housing Appeals Comm., 385 Mass. at 657. See G. L. c. 30A, § 1(6). Given the deference to be paid to the agency’s findings and rulings, this review is markedly different from the depth of review provided by a trial de nova. See Zoning Bd. of Appeals of Wellesley v. Housing Appeals Comm., supra at 657. Thus, the G. L. c. 30A appeal of an abutter permitted to intervene in a HAC proceeding cannot be characterized as affording the abutter with judicial review equal to that afforded by G. L. c. 40B, § 21, and G. L. c. 40A, § 17.
This rule is related to the notion that we must construe the statute in its entirety, “[so] that no clause, sentence or word shall prove superfluous, void or insignificant, if, by any other construction they may all be made useful and pertinent.” Board of Appeals of Hanover v. Housing Appeals Comm., supra at 364, quoting from Commonwealth v. McCaughey, 9 Gray 296, 297 (1857).
While the Supreme Judicial Court has observed that “there are no substantial differences between the alternative methods of review,” this statement was made in the limited context of assessing whether the two routes of appeal violate Federal and State equal protection guarantees. Board of Appeals of Hanover v. Housing Appeals Comm., supra at 371. See Mahoney v. Board of Appeals of Winchester, 366 Mass. 228, 231-232 (1974). Further, this equal protection challenge “was premised upon the view that the hearing before the committee,” unlike that in the court, was not de nova. Board of Appeals of Hanover v. Housing Appeals Comm., supra at 371.
The Supreme Judicial Court “has repeatedly recognized that agencies have broad discretion to grant or deny intervention.” Tofias v. Energy Facilities Siting Bd., 435 Mass. 340, 346 (2001).
Indeed, while effectuation of the purposes of the Act requires that the term “persons aggrieved” as appearing in G. L. c. 40B be construed more narrowly than the identical term appearing in G. L. c. 40A, such individuals have standing to pursue G. L. c. 40B, § 21, appeals if they posit “a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest” that is protected by the statute pursuant to which the plaintiff claims he or she is aggrieved. See Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. at 27-29, quoting from Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493 (1989).
Concluding that the abutters’ right to appeal pursuant to G. L. c. 40B, § 21, was moot, the judge did not reach the abutters’ assertion that the existence of genuine issues of material fact precludes entry of summary judgment for the developers. Accordingly, we decline to reach that contention here, and it remains properly before the court on remand.
In relevant part, rule 16 provides that: “In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider: (1) [t]he simplification of the issues . . . and (8) [s]uch other matters as may aid in the disposition of the action.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.