Taylor v. Housing Appeals Committee

451 Mass. 149
CourtMassachusetts Supreme Judicial Court
DecidedApril 11, 2008
StatusPublished
Cited by13 cases

This text of 451 Mass. 149 (Taylor v. Housing Appeals Committee) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Taylor v. Housing Appeals Committee, 451 Mass. 149 (Mass. 2008).

Opinion

Cowin, J.

At issue in this case is the validity of a regulation of the Department of Housing and Community Development (DHCD), 760 Code Mass. Regs. § 31.04(l)(a) (2004), which, among other things, sets the date on which a municipality’s stock of low or moderate income housing is calculated for the purposes of G. L. c. 40B, §§ 20-23 (act).3 The act requires each municipality in the Commonwealth to devote ten per cent of its housing stock to low or moderate income housing. G. L. c. 40B, § 20. The date for calculating whether a town has met the ten per cent threshold is of critical importance in the act’s framework. Nevertheless, the act does not provide a specific date of calculation, thus effectively leaving the task to the discretion of DHCD.

The plaintiffs ask, in essence, that we invalidate DHCD’s regulation, which sets the date of calculation as the date on which a city or town’s zoning board of appeals files its written decision regarding a permit with the municipality’s clerk, and instead hold that the applicable date of calculation is the date on which a city or town actually satisfies the ten per cent threshold.4 [151]*151We decline to do so, as the regulation is consistent with the language of the act and is rationally related to its purposes.

Statutory framework. The primary purpose of the act is “to provide relief from exclusionary zoning practices which prevent[] the construction of badly needed low and moderate income housing.” Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 354 (1973). Pursuant to the act, eligible developers seeking to build low or moderate income housing apply to a city or town’s zoning board of appeals for a single, comprehensive permit, avoiding the “often arduous process” of applying individually to a series of local boards and agencies. Middleborough v. Housing Appeals Comm., 449 Mass. 514, 516 (2007). See G. L. c. 40B, § 21.

The defining characteristic of the act’s framework is the requirement that each municipality devote ten per cent of its housing stock to low or moderate income housing, see G. L. c. 40B, § 20. See also Board of Appeals of Hanover v. Housing Appeals Comm., supra at 383 (ten per cent represents “the minimum share of responsibility that each community must shoulder in order to alleviate the housing crisis that confronts the Commonwealth”). However, achievement of the ten per cent statutory minimum does not deprive a local zoning board of appeals of the ability to grant additional comprehensive permits to developers seeking to construct low or moderate income housing. See Boothroyd v. Zoning Bd. of Appeals of Amherst, 449 Mass. 333, 340-341 (2007); Board of Appeals of Hanover v. Housing Appeals Comm., supra at 367.

On the other hand, satisfaction of the statutory minimum allows a local zoning board of appeals to deny comprehensive permits with impunity. See Zoning Bd. of Appeals of Wellesley v. Housing Appeals Comm., 385 Mass. 651, 657 (1982). That is, if a municipality is under the ten per cent minimum, HAG may order the municipality’s zoning board of appeals to grant a comprehensive permit or to modify or remove conditions that render a project uneconomic. G. L. c. 40B, § 23. But, if a municipality [152]*152has reached the ten per cent threshold, and its zoning board of appeals denies a developer’s application, then the application process is effectively terminated. In such circumstances, HAC is without authority to order that board to grant a comprehensive permit or to modify or remove conditions. See G. L. c. 40B, § 20 (providing that local zoning requirements and regulations may be enforced and “shall be consistent with local needs when imposed” by zoning board of appeals in municipality that has met statutory minimum); Board of Appeals of Hanover v. Housing Appeals Comm., supra at 367.

As indicated, the act does not specify the date for calculating when a city or town has met the ten per cent threshold. See G. L. c. 40B, § 20. In the absence of specific treatment in the statute, DHCD has attempted to deal with the question by a regulation setting forth a calculation date. The original version of the regulation established the date as the date of application for a comprehensive permit. See 760 Code Mass. Regs. § 31.04(1)(a) (1978); Zoning Bd. of Appeals of Greenfield v. Housing Appeals Comm., 15 Mass. App. Ct. 554, 559 (1983). In 1991, the regulation was amended to remove the reference to the date of application, but no other date was substituted. See 760 Code Mass. Regs. § 31.04(1)(a) (1991). In 2003, HAC, in an administrative decision, Casaletto Estates, LLC vs. Georgetown Bd. of Appeals, Housing Appeals Comm., No. 01-12 (May 19, 2003) (Casaletto), set the date of filing of the board’s decision as the appropriate date of calculation. DHCD adopted the Casaletto decision’s approach in an amended regulation in 2004, 760 Code Mass. Regs. § 31.04(1)(a) (2004), and that is the regulation challenged here.

Facts and procedural history. In January, 2002, Rising Tide Development, LLC, and RTD Greenhouse, LLC (developers), applied for a comprehensive permit to construct forty-eight units of housing (the developers subsequently reduced this figure to thirty-six units) in the town of Lexington (town). The town’s zoning board of appeals (board) approved the application but, among other things, conditioned the permit on the construction of only twenty-eight units. The developers appealed to HAC. The plaintiffs in this case, abutters to the proposed project, moved to intervene and were permitted to participate as amici pending a decision on the merits. Prior to a hearing on the matter, the board [153]*153and the plaintiffs stipulated that the town had not achieved the ten per cent threshold for affordable housing under G. L. c. 40B.

In June, 2005, HAC issued its decision. It ordered the board to issue an amended permit that, inter alla, increased the number of approved units from twenty-eight to the thirty-six that the developers requested. In July, 2005, the plaintiffs filed a complaint in the Superior Court against HAC and the developers, seeking a review of HAC’s decision pursuant to G. L. c. 40B, § 22.5 In December, 2005, HAC filed a partial motion to dismiss the complaint, which a judge in the Superior Court allowed as to all but two counts.

In September, 2006, the plaintiffs filed a motion for judgment on the pleadings. In November, 2006, the plaintiffs filed an emergency motion to dismiss on the ground that HAC lacked subject matter jurisdiction. The plaintiffs claimed that HAC was deprived of jurisdiction in April, 2005, when, after the hearing on the matter was completed but before HAC issued its decision, DHCD determined that the town had reached the ten per cent threshold established by G. L. c. 40B, § 20.6

A second Superior Court judge denied the emergency motion to dismiss. She concluded that the act did not provide a date when a municipality’s compliance with the ten per cent threshold must be calculated, and that the DHCD regulation specifying the time at which compliance would be calculated, 760 Code Mass. Regs. § 31.04(l)(a), was both consistent with statutory language and rationally related to the available statutory purpose. The judge also denied the plaintiffs’ motion for judgment on the pleadings and ordered that judgment enter affirming the HAC decision. The plaintiffs appealed.

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Bluebook (online)
451 Mass. 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-housing-appeals-committee-mass-2008.