Section Review

Dennis Housing: clarifying what is 'local' under the Comprehensive Permit Act

Weiss
David Weiss is a principal in the law firm of Goulston & Storrs, P.C. where he has practiced since 1981. Goulston & Storrs submitted briefs to the Supreme Judicial Court on behalf of amici curiae in both the Dennis Housing and Hingham Campus cases.
In this fourth decade of experience with the commonwealth's Comprehensive Permit Act, adopted as Chapter 774 of the Acts of 1969, a great deal of attention and activity has centered on the act. Hotly contested local permitting processes for proposals under the act, substantial revisions of regulations of the Department of Housing and Community Development (at 760 CMR 30.00 and 760 CMR 31.00) in the summer of 2001 and the winter of 2002-2003), literally dozens of bills filed in the Legislature (see e.g., the listing at http://www.chapa.org/40ball.pdf), three significant decisions of the Supreme Judicial Court within less than one year, and the creation by the Romney administration of a task force to assess the effectiveness of the act and recommended improvements, have all ensured broad awareness of the Comprehensive Permit Act and its role in the creation of affordable housing through the power it provides to override local land-use regulations. In these pages, three prior articles have appeared addressing aspects of the Act: Sands, Affordable Housing in Massachusetts - the Double Standard, 4 MBA Section Review (No. 1), p. 91 (2002), Malamut, The Ardemore Case and the Future of Zoning Overrides under General Laws Chapter 40B, 5 MBA Section Review (No. 1), p. 43 (2003), and Wilson and Tymann, Prohibiting Denial By Delay: The Supreme Judicial Court Protects Subsidized Housing From Appeals by Town Officials, 5 MBA Section Review (No. 3), p. 39. (2003).

Much of this attention has been framed as a dialogue between advocates of local control of land use and zoning decisions on the one hand and advocates of a statewide solution to a statewide need for affordable housing, allocating responsibility to each community to share in the solution, on the other. Although in somewhat different terms, a similar clash of views and interests shaped the legislative history of the act and the particular language in which it was passed. That language has created an important role for the courts. The give and take of the legislative process produced a text that left much to judicial interpretation.

In the Supreme Judicial Court's most recent decision construing the act, Dennis Housing Corp. v. Zoning Board of Appeals of Dennis, 439 Mass. 71 (2003), the court addressed the central question of what kinds of land-use regulations are subject to the act as "local." It developed a pragmatic, functional test for identifying what regulation is to be deemed "local." This article will first provide context for the Dennis decision by giving a brief overview of the act and then describe the problem posed by the Dennis case and the court's solution to it.

The Comprehensive Permit Act

Often referred to as "Chapter 40B," although it comprises only Sections 20 through 23 of the 29 sections of that chapter of the General Laws, and known throughout its history as the "Anti-Snob Zoning Act" (See e.g., Zoning Board of Appeals of Wellesley v. Ardemore Apartments Limited Partnership, 436 Mass. 811, 814 (2002) and Allan G. Rodgers, Snob Zoning in Massachusetts, 1970 Annual Survey of Massachusetts Law, 487, 489), the act was adopted "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 Committee, 363 Mass. 339, 354 (1973).

The Hanover court reviewed the legislative history of the act in detail (Id., at pp. 347-354). It then went on to uphold the constitutionality of the act and resolve a number of important issues of interpretation. For example, as Rodgers (identified by the court as "one of the principal draftsmen" of the act at 363 Mass. 366, n. 18) had pointed out, the text of the act did not explicitly state that a town board of appeals has the power to override zoning bylaws when ruling on a comprehensive permit application (Rodgers, supra, at p. 491). The Hanover court held that the board did have that power.

Rodgers had noted that the act emerged from "the legislative labyrinth" (Rodgers, supra, at 491) "after a number of perilously narrow votes in both houses," and that "[i]t suffers from vagueness and even obscurity." (Id., at 489.) The Hanover decision marked the beginning of a line of cases in which the courts, relying heavily on the legislative history of the act, elucidated it "with a view to effectuating the purposes of the Act's framers." Zoning Board of Appeals of Wellesley v. Ardemore Apartments Limited Partnership, 436 Mass. 811, 821 (2002). The Ardemore court identified that purpose by describing the availability of a comprehensive permit as a means to override local opposition to housing for low-income persons as "a particularized solution crafted by the Massachusetts Legislature" to address the problem of exclusionary zoning.

The act changes the ground rules for the permitting of projects within its scope in four principal ways.

1. A single source for approvals.
General Laws chapter 40B, section 21 provides that instead of making separate applications to each "local board" (a defined term and the subject of the Dennis decision) a single application is made to the zoning board of appeals, which is given the "same power to issue permits or approvals as any local board or official who would otherwise act with respect to such application."

2. A different standard of review.
Although the text of the act does not explicitly state the standard that is to be applied by the board of appeals in ruling on an application for a comprehensive permit, in the Hanover decision the court held that "the standards to be applied by boards of appeals in deciding whether to issue comprehensive permits are… whether the grant of the permit is 'reasonable and consistent with local needs' and whether any conditions imposed on the permit are 'uneconomic'" (363 Mass. 339 at 364).

"Consistent with local needs" and "uneconomic" are both defined in the act. The definition of "consistent with local needs" is structured by describing when requirements and regulations that a board might seek to apply to a comprehensive permit application to deny it or impose conditions upon it will be deemed "consistent with local needs." The test is that "requirements and regulations shall be considered consistent with local needs if they are reasonable in view of the regional need for low- and moderate-income housing considered with the number of low-income persons in the city or town affected and the need to protect the health or safety of the occupants of the proposed housing or of the residents of the city or town, to promote better site and building design in relation to the surroundings, or to preserve open spaces, and if such requirements and regulations are applied as equally as possible to both subsidized and unsubsidized housing."

A different definition applies if a municipality has satisfied criteria generally referred to as the "statutory minima." The statutory minima are satisfied in a municipality where low- or moderate-income housing exists in excess of 10 percent of the housing units reported in the latest census, or on sites comprising at least 1.5 percent of the land area zoned for residential, commercial or industrial use, or if the proposal would result in the commencement of construction on sites which comprise the larger of three-tenths of 1 percent of such land area or 10 acres in any one calendar year. That is, if any of these minima have been met, application of the usual local land use requirements and regulations will be deemed "consistent with local needs" and form a sufficient basis on which to deny or condition a comprehensive permit application.

Regulations at 760 CMR 31.04 go into greater detail on the manner in which compliance with the statutory minima is to be tested. At 760 CMR 31.07(1)(d)(g)(h) and (i), the regulations purport to create irrebutable presumptions that, where certain listed conditions are present, "[a] decision by the [zoning] Board [of appeals] to deny a comprehensive permit or grant a permit with conditions shall be consistent with local needs." The validity of this aspect of the regulations has not as yet been before the appellate courts.

3. A simple majority vote of the board suffices.
General Laws chapter 40B, section 21 provides that the board of appeals' decision on a comprehensive permit application shall be by majority vote. This lowers the threshold for approval for a project that would otherwise require a special permit and, therefore, a super-majority vote under the provisions of G.L. c. 40A, ß 9.

4. Dual routes of appeal.
The act provides two distinct avenues of appeal depending on the outcome of the proceedings before the board of appeals.

In the event the board of appeals grants the comprehensive permit, any person aggrieved by the decision may seek judicial review "as provided in section 17 of chapter forty A." (G.L. c. 40B, ß 21). The term "aggrieved" has the same meaning under G.L. c. 40B has it does under G.L. c. 40A. See, Bell v. Zoning Board of Appeals of Gloucester, 429 Mass. 551 (1999).

In the event of a denial, or a grant with conditions, the applicant has a right of appeal to the Housing Appeals Committee in the Department of Housing and Community Development (formerly the Department of Community Affairs) from which a further appeal to court may be taken "in accordance with provisions of chapter thirty A." (G.L. c. 40B, ß 22). The applicable standard of review on an appeal from a decision of the committee is the "substantial evidence" test. (Hanover, supra, at 376.)

The Hanover decision, reviewing what appear to be the first two decisions of the Housing Appeals Committee, upheld the validity of this two-track process (Id., at p. 371).

In the event of an approval with conditions, parallel proceedings may be brought: opponents to the project may seek judicial review of the grant of the permit, and the applicant may challenge the conditions by appeal to the Housing Appeals Committee. As the Housing Appeals Committee Guidelines for Local Review of Comprehensive Permits, Section V-A (available at http://www.state.ma.us/dhcd/components/hac/GUIDE.HTM) note, "If both the developer and abutters file appeals, the Superior Court will generally not take any action pending completion of the proceedings before the Housing Appeals Committee." Of course, application to the court to stay the action will be required.

In the period from May 2002 through March 2003, the Supreme Judicial Court decided three cases under the act.

In the Ardemore case, supra, the owners of an apartment project approved under the act argued that when their obligation to maintain units in the project available at below-market rate affordable rents expired under the particular subsidy program through which assistance had been provided to the project, they were free to relet those units at market rates. The comprehensive permit was itself silent on the question of the duration of the affordability requirement.

Relying heavily on its analysis of the legislative history and intent, the court held that where the permit is silent, the affordability requirement remains in place for so long as the project is not in conformity with zoning requirements. That is, for so long as the owner has the advantage of the override of local regulations, it must bear the burden of the affordability requirements. Had the court reviewed the treatment required by the statute of an express condition requiring affordability to be maintained for so long as the owner had the benefit of the override, it may well have addressed the case somewhat differently. An express condition would have been tested by the "consistency with local needs" and "uneconomic conditions" tests, and if found wanting, rejected.

Such a framework has been used by the Housing Appeals Committee in Lexington Ridge Associates v. Lexington Board of Appeals, HAC No. 93-13 (June 25, 1992) (upholding a perpetual affordability condition on the record before the committee) and Delphic Associates, LLC v. Hudson Board of Appeals, HAC No. 02-11 (Dec. 23, 2002) (appeal pending as Hudson Zoning Board of Appeals et al. v. Housing Appeals Committee, Middlesex Superior Court Civil Action No. 2003-00344) (rejecting a perpetual affordability restriction which was to survive possible foreclosure and bankruptcy, and which, on the record before the committee would have rendered the project non-financeable, where other factors mitigated the local concern to assure that affordability survive even these events). While Lexington Ridge and Delphic Associates are completely consistent with Ardemore at the doctrinal level, taking their approach might well have lead the Ardemore court to articulate a somewhat more nuanced principle and, perhaps, to reach a different result.

In Planning Board of Hingham v. Hingham Campus, LLC, 438 Mass. 364 (2003), the court held that the Planning Board of the town of Hingham did not have standing to appeal a decision of Hingham's Zoning Board of Appeals approving an application for a comprehensive permit. The Planning Board had argued that the case, on its facts, should be treated like one under G.L. c. 40A, ß 17 under which, in addition to persons aggrieved, certain municipal boards and officer are also granted standing. The court turned to the language of section 21 of G.L. chapter 40B, which grants standing to persons aggrieved, but omits the language with respect to municipal boards and officers found in G.L. c. 40A, ß 17. The court ruled that the Planning Board did not constitute a "person aggrieved" both because it was not aggrieved (under the test of Bell v. Zoning Board of Appeals of Gloucester, 429 Mass. 551 (1999) and cases construing "aggrievement" under G.L. c. 40A), and because "[m]unicipal boards and officers are not 'person[s]' for purposes of standing" (citing Commonwealth v. Dowd, 37 Mass. App. Ct. 164, 166 (1994) and Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699, 701-702 (1998)).

The Dennis Housing case

By Chapter 470 of the Statutes of 1973, the Legislature created the Old King's Highway regional historic district, which included portions of nine Cape Cod towns. In each of the member towns, the Legislature created a "town historic district committee" made up of five members, four of whom were to be residents of the town. Committee members are locally appointed or elected. The Legislature also created the Old King's Highway Regional Historic District Commission, comprised of the chairman of each of the town committees. The district, commission and committees are distinct from the historic districts and the historic district commissions that towns are authorized to create pursuant to G.L. c. 40C.

Within the district, no building or structure may be built nor may a building permit issue without a "certificate of appropriateness" from the relevant town historic committee. Issuance of a certificate of appropriateness requires a public hearing with notice in a "local newspaper" and notice to all abutters. The committee then decides whether the size and features of the project proposed are appropriate for the purposes of the act and must consider "the historical value and significance of the building or structure, the general design, arrangement, texture, material and color of the features… and the relation of such factors to similar factors of buildings and structures in the immediate surroundings," as well as the settings and relative size of buildings and structures. Persons aggrieved by action of the committee may appeal to the commission, which may reverse the decision if it finds the committee exceeded its authority, "exercised poor judgment" or its decision was arbitrary, capricious or "erroneous." Review of the commission's decision is available in the District Court. The purposes of the act, which are to guide the committee's action, include promoting the general welfare "of the inhabitants of the applicable regional member town."

In May 2000, Dennis Housing Corp. filed an application with the Dennis Zoning Board of Appeals seeking a comprehensive permit. Dennis Housing was of the view that the Dennis Historic Committee was a "local board" for purposes of the Comprehensive Permit Act and therefore it need not seek a certificate of appropriateness from the committee. Rather, in its view, it was to make a single application to the Board of Appeals that, under the act, was vested with the Historic Committee's power to act and, of course, the requirements associated with a certificate of appropriateness were subject to override under the act. The Board of Appeals and the committee were of the opposite view. The developer filed a complaint for declaratory judgment. On cross-motions for summary judgment the Superior Court ruled in favor of the developer, declaring that the Historic Committee was a local board subject to the provisions of the act. On appeal, the Supreme Judicial Court transferred the case from the Appeals Court on its own motion, and affirmed the Superior Court declaration.

The court's analysis began with the statutory definition of "local board" in Section 20 of G.L. c. 40B: "any town or city board of survey, board of health, board of subdivision control appeals, planning board, building inspector or the officer or board having supervision of the construction of buildings or the power of enforcing municipal building laws, or city council or board of selectmen." Town historic district committees for the towns within the Old King's Highway district are not on the list. The court held that the list in the definition "is not intended to be a list of the precise names of such local agencies, but rather encompasses local agencies and officials performing comparable functions to the listed forms of 'local board'" (439 Mass. at 78). The court found support for what it called a "functional analysis" (Id. at p. 79) in the practices of local zoning boards in processing comprehensive permit applications, as well as the interpretation of the term "local board" by the Housing Appeals Committee. In this connection, it cited the definition of "local board" at 760 CMR ß 30.02, that provides, in part, "[a]ll boards, regardless of their geographical jurisdiction or their source of authority (that is, including boards created by special acts of the legislature or by other legislative action) shall be deemed local boards if they perform functions usually performed by locally created boards." The court also found support in the portion of the statutory definition that explicitly incorporates a functional approach with respect to officers or boards "having supervision of the construction of buildings or the power of enforcing municipal building laws." The court described in detail the functions of the committee that were directly linked to those of the building inspector, noting it would be anomalous to hold that the building inspector's powers in enforcing local requirements were exercised by the board of appeals under the act, but the powers of a local agency for which the building inspector provided enforcement were not. (Dennis, supra, at 78-80).

The court rejected the defendants' arguments based on their view that the committee enforces not a local law, but rather a "State law" under legislative mandate. The fact of state legislation, however, did not "negate the overwhelmingly 'local' nature" of the committee's operation (Id. at p. 80). The court noted the absence of any state agency with oversight of the commission or the committees, which are answerable only to town voters and selectmen. The court rejected the claim that the district was created to preserve Cape Cod for the benefit of the state at large, noting the express purpose of the legislature "to promote the general welfare of the inhabitants of the applicable regional member towns" (Id. at p. 81). Finally, the court pointed out that for the town committee to have veto power over comprehensive permit proposals would give rise to the very kind of local interference with meeting the need for affordable housing that the act was designed to eliminate.

The functional analysis approach adopted by the court in Dennis Housing brings increased clarity to at least one area of what the Rodgers article identified in 1970 as "vagueness and even obscurity" in the act.

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