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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.

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]

The Justice Mills Lawyer’s Relief Act of 2007 or Multiple Avenues of Appeal of a Comprehensive Permit Still Available.

Topics:  Administrative Appeal; Zoning Appeal; Mootness; Housing Appeals Committee

Writing for the Appeals Court in Taylor v. Board of Appeals of Lexington, Justice Mills concluded that a G.L. c. 40A, §17 Superior Court Appeal of a grant of a comprehensive permit (G.L. c. 40B) by abutters did not become moot by a Developer appeal to the Superior Court of a Housing Appeal Committee (“HAC”) decision modifying the permit.

The decision ratifies the apparent statutory scheme allowing an appeal by a developer to the HAC, then further appeal of the HAC decision in Superior Court, while at the same time allowing abutter appeals of the ZBA decision directly to the Superior Court.

For the full text of the case click HERE.

[Read More]

Failure of Tax Assessments by a Town does not create a Roadway by Prescriptive Easement

Topics: Public Way ; Prescriptive Easement; Layout

The Appeals Court has affirmed summary judgment finding that, as a matter of law the Town of Marblehead had not created a public way from an existing way, by either a manner prescribed by statute or prescription on their parcel of land. McLaughlin v. Town of Marlblehead , Slip Opinion No. 06-P-119 (March 23, 2007).

[Read More]

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Housing Market: Mixed Signals about Falling Prices for February

Two reports have been issued, one by the Massachusetts Association of Realtors, and the other by the Warren Group, but they give opposite responses to the housing market sales.

According to an article in the Boston Globe, Mass. Home Prices Still Fall, available at, http://www.boston.com/business/ticker/2007/03/mass_home_price.html, the reports are clear that “the February median sales price for a single family home in Massachusetts fell just over 4 percent.”

Massachusetts Association of Realtors, reports that sales for detached single family homes in the state rose 1.2 percent, but the median selling price fell 4.1 percent. In addition, condo sales rose 4.5 percent on a volume basis, but the median condo price in February 2007 fell 1.8.

The Warren Group, to the contrary reports, sales of single family homes in Massachusetts fell 1.4 percent, and the median price for a single-family home fell 4.6 percent. Likewise, condo sales fell 3.2 percent, and the median condo sale price fell 4.8 percent.

I, on the other hand, am 100 percent sure that housing prices will eventually rise and that and that the volume will either rise or fall, but will not stay the same.

What do YOU think?

Deval Patrick Lays Out a Plan for Housing

In the Patrick-Murray Housing Transition Report, the incoming administration in Massachusetts lays out a not-so-surprising, but also a not-so-ambitious, plan for housing. In somewhat bland fashion, the Patrick-Murray administration plans, basically, to do more and keep trying to make 40B and 40R work.

While it is comforting to know that they do not plan to scrap the sometimes flawed but only working systems in place, the report does nothing to evince, stimulate, or even give much hope that there will be creative thinking on these issues in the future.

Don't get me wrong, I don't have the answers, and I think Gov. Patrick, if properly motivated, can assemble a great team to find the answers.

Will he?

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Free Appeals - Well, maybe.

Yes, if it is a ground-breaking issue and you've made it to the appellate level (the Massachusetts Appeals Court, the SJC or the Federal Circuit Court of Appeals) and if you have exhausted your finances, I may be willing to represent you in a land use, construction or real estate related appeal and charge you a reduced, or no legal fee.

Why on earth would I do such a thing?

(1) Money shouldn't always control who wins;

(2) It's interesting;

(3) It helps me market my expertise.

Contact us to see if your case qualifies.

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Land Law is ours: www.Landlaw.biz

Meltzer Law Offices

 

Mortgage Rates hit 4-year high.

    30-year, fixed-rate mortgages averaged 6.60 percent, up from 6.58 percent last week.

    This week's rate was the highest since the week ending June 20, 2002.

    See the article HERE.

Is Land your Business?

Land Law is ours: www.Landlaw.biz

Meltzer Law Offices