Meltzer BLawG Offices

Stuborn is Alive and Well - New England Fund is a Subsidy for 40B

In a significant decision today, the Supreme Judicial Court, in upholding a Superior Court decision, parted with the Appeals Court analysis and expanded the understanding of a "Subsidy" for purposes of Chapter 40B affordable housing projects.  The SJC has wholly adopted the Housing Appeals Committee's finding in Stuborn Ltd. Partnership v. Barnstable Bd. of Appeals, Housing Appeals Committee, No. 98-01 (March 5, 1999)

In Stuborn, the Housing Appeals Committee had determined that the 40B sudsidy requirement needed to be read expansively and that the New England Fund (NEF), part of the Federal Home Loan Bank of Boston, a Federally subsidized banking consortium, qualified because it "had sufficient characteristics of a government agency to qualify as a Federal program."

When examining this issue on the first go-around, the Appeals Court twisted through some fabulous intellectual calisthenics in order to conclude that the NEF qualified because it is subsidized by the Federal government, and, consequently, could ultimately provide loans at a lower rate. 

The SJC, instead, wholly adopted Stuborn's expansive definition of a subsidy.

The case is Town of Middleborough v. Housing Appeals Committee, and the text of the Slip Opinion can be found HERE.

Bellingham Bylaw giving Veto Power to Town Meeting for “Major Developments” is Illegal.

The Land Court has struck down and invalidated a Bellingham Bylaw provision requiring approval of a Concept Plan by Town Meeting for large development proposals. 

According to the Court, the provision provided that “an applicant seeking the grant of a special permit for a Major Development (at least 50 dwelling units or 100 bedrooms) must, under the By-law, secure the approval of a comprehensive Concept Plan by means of a two-thirds vote of town meeting. Town meeting may approve the Concept Plan, may approve it with ‘conditions or limitations,’ or absent a two-thirds vote in favor, may presumably deny it outright.”

The traditional powers vested in Town Meeting, according to the Court, are the “the power to make laws (by-laws) and the power of the purse.”  An “adjudicatory or quasi-adjudicatory role . . . is a function for which [Town Meeting] is, at best, ill suited.”

While the Court did not agree that the Town Meeting was illegally acting as the special permit granting authority, it wields a veto power over any proposal which “is a function that is neither contemplated nor permitted under G.L. c. 40A.”

The case is Wright v. Town of Bellingham, 2007 WL 1884657 (Mass.Land Ct. July 2, 2007).  Click HERE for the full text of the opinion.

Appraiser's Oversight Does Not Negate Standing.

The Appeals Court has reversed a Superior Court judge and found that plaintiffs have standing to appeal a grant of a variance despite an real estate appraiser's oversight regarding the current use of property.

In Central Street, LLC v. Zoning Board of Hudson, the Court found that the appraiser's oversight merely changed the baseline valuation of the property, not the overall determination that the variance and subsequent use would cause a diminution of value of the plaintiff's property.

The full text of the case can be found HERE.

Standing in Zoning Appeal Conferred by Local Bylaw

The Appeals Court has determined that standing to appeal a special permit determination is conferred on an abutter by virtue of a local bylaw.

In Sweenie v. Planning Board of Groton, the Appeals Court found that although the abutters failed to bring evidentiary substantiation of their claim that "the replacement and expansion of the underground storage tanks could potentially harm their drinking water" drawn from nearby residential wells and contaminate ground water by spillage during the replacement and by leakage, the local bylaw provided standing to raise the concern.

The Court concluded that the abutters derived standing from the bylaw which provides, in part, that, with respect to the storage tanks in a water resource area "the Board of Appeals shall give consideration to the simplicity, reliability and feasibility of the control measures proposed and the degree of threat to water quality that would result if the control measures failed."

The full text of the case can be found HERE.

Home is where the trailer is: Trailer on lot sufficient to destroy grandfathered lot status

The Appeals Court, in an unpublished decision, has determined that a trailer on a lot, even though not being used at the time of the enactment of zoning, was enough to disqualify the lot for treatment as a grandfathered lot under G.L. c. 40A, § 6, par. 4.

The case is Kibbe v. Town of Douglas, 2007 WL 1791700 (Mass.App.Ct. June 21, 2007) and the full text can be found HERE.

Change in use is a change in use is a change in use

The Land Court has determined that, even though a use has not changed its classification under the town's bylaw, any change triggers the necessity for review. 

The property changed from potato chip factory to a vacant building to a plumbing supply to woodworking shop.  Even though the vacancy was not long enough to be considered an abandonment of the prior use, "each time the underlying activity in the building changed, despite retaining the 'industrial' moniker, it was subject to at least review by the Planning Board or special permit granting authority."

The Court also found that even though "the Building Inspector's response [to the plaintiff's enforcement request did] not explicitly and unequivocally deny [his] Request," referring the matter to the planning board "was sufficiently definitive to constitute an 'order or decision,' tantamount to a refusal to enforce the Bylaw."

The case is Pepin v. Belrose, 2007 WL 1783871(Mass.Land Ct. Jun 21, 2007) (NO. 06 MISC. 328868 KFS) and the full text can be found HERE.

Town must reach merits of 40B application before determining local need

The Appeals Court has determined that the Town of Wrentham inappropriately denied a 40B (Comprehensive Permit) Application without even assessing the merits of the application.  The town denied the permit summarily based upon the fact that it had met the 10% threshhold. 

The Court found that the town must first hold a hearing and determine, as part of a complete review of the application, whether the proposal is "consistent with local needs."  Having met the threshhold creates the presumption, but does not preclude the necessity for hearing the merits of the application. 

The statutory language also vests jurisdiction to appeal the denial to hear the merits of the application based on the summary determination of local need in the Housing Appeals Committee (HAC).

As a part of its review, the HAC determined that the Town of Wrentham inappropriately included "residents at the Wrentham Developmental Center (WDC), a facility owned and operated by the Department of Retardation (DMR) to provide services for the mentally disabled including diagnostic, training, school, residential, and employment services" when calculating the number of affordable units in town.

The Appeals Court decided that judicial review of that determination was premature because the HAC has merely remanded the application for consideration by the town on its merits, and has not ordered issuance.  Therefore the HAC's order is not final and not yet ripe for review.

The case is Town of Wrentham v. Housing Appeals Committee, 06-P-587 (June 27, 2007) and can be found HERE.

Hopkinton’s decision not to buy Weston Nurseries 708 acres could lead to . . . well . . . anything.

After much debate, the townspeople of Hopkinton recently voted down the opportunity to purchase 708 acres from the bankrupt owners of Weston Nurseries. The land was protected under Massachusetts state law, Chapter 61A, as agricultural land and was paying lower taxes as a result.

Boulder Capital, a developer, will purchase the land and has presented plans to develop 940 houses and apartments, and 450,000 square feet of commercial space.

[Read More in the Boston.com Blog]

No litmus test for local need; Even if a municipality reaches its 10% minimum affordable housing under Chapter 40B, a housing project may still be consistent with a local need and avoid local zoning.

The Supreme Judicial Court found that the Town of Amherst appropriately granted a comprehensive permit under chapter 40B because the town had an “overwhelming need for affordable housing”  outweighing “’constraints imposed by the zoning bylaw,’” despite the fact that it already supplied the statutory minimum of 10% affordable units.

[Read More]

The case is Boothroyd v. Zoning Board of Appeals of Amherst, SJC-09896 (June 14, 2007) and can be found HERE.

Zoning Appeal is part of mortgaged premises: Lender owns security interest in zoning settlement.

Judge Young, in Blue Hills Office Park LLC v. J.P. Morgan Chase, et al, --- F.Supp.2d ----, 2007 WL 755202 (D.Mass. 2007) has determined that an owner's interest in a zoning appeal is part of a mortgagee's interest in a property.  The mortgage, in pertinent part, provided that the "the words 'Mortgaged Property' shall include any portion of the Mortgaged Property and any interest therein."

In Blue Hills, Judge Young found that the plaintiff/mortgagor breached the terms of the mortgage when it negotiated a settlement in a zoning case with a neighbor for a $2 million cash payment, and then disbursed that cash to the principals of the plaintiff, all without the lender's knowledge or consent.

The "Zoning Appeal was included in the mortgaged property.  The Zoning Appeal is a cause of action related to, derived from, and used in connection with the mortgaged property.  [Plaintiff's] standing to bring the Zoning Appeal derived from its ownership of the mortgaged property."

To read the full text of the opinion, click HERE.