Zoning Board of Appeals v. Housing Appeals Committee

451 Mass. 35
CourtMassachusetts Supreme Judicial Court
DecidedMarch 31, 2008
StatusPublished
Cited by4 cases

This text of 451 Mass. 35 (Zoning Board of Appeals 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
Zoning Board of Appeals v. Housing Appeals Committee, 451 Mass. 35 (Mass. 2008).

Opinion

Greaney, J.

This case, here on application for direct appellate review, raises the issue whether the housing appeals committee (committee) of the Department of Housing and Community Development may require, as a condition to the grant of a comprehensive permit for an affordable housing development project, that a municipality convey an easement on its land to the project’s developer. We conclude that the committee lacks authority to do so and order the judgment entered in the Superior Court vacated.

The background of the case is as follows. In June, 2003, Washington Green Development, LLC (developer), a Massachusetts limited dividend organization, applied to the zoning board of appeals of Groton (board) for a comprehensive permit under G. L. c. 40B, §§ 20-23 (Act), to build a forty-four unit condominium project,4 which would include eleven affordable units and thirty-three market-rate units. The project would be built on a 13.5-acre parcel of land located on the south side of Lowell Road (Route 40) in the town of Groton (town), and would involve construction of fourteen triplexes and one duplex.5,6 The buildings would be located along an access road that enters the project site in a location where there is about 170 feet of frontage on the south side of Lowell Road. The access road would be about 800 feet long and would end in a looped cul-de-sac. Lowell Road, a busy, two-lane, State highway, with a speed limit of forty miles per hour, contains a curve to the west of the proposed entrance of the access road.

To the east of the project site on Lowell Road are two houses on large lots, and to the project site’s west, on land owned by the town, is an electric power transfer substation controlled and [37]*37operated by the Groton Electric Light Department (GELD).7 The town’s land (town’s property) comprises about two acres, is adjacent to the project site, and surrounds the site on three sides.8

Most of the condominium units would be located to the side of, and behind, the substation, and also behind the existing houses. On the western portion of the project site, including both the area to the west of the substation and an area toward the rear of the project site, are high voltage electrical transmission lines that are permitted under an easement owned by National Grid. At the rear of project site to the east are wetlands.

After a series of public hearings, the board, in March, 2004, denied the developer’s application for a comprehensive permit. The board based its denial, in part, on the existence of several safety hazards. The board found that there would be inadequate stopping sight distance for motor vehicles traveling south on Lowell Road that encounter another motor vehicle or an obstacle in the roadway at the intersection of Lowell Road and the access road. The board also found problematic the risk of motor vehicle accidents involving vehicles traveling from the access road on to Lowell Road. The board further grounded its denial on the developer’s failure to show that the development could adequately be served by emergency vehicles, and the safety concerns that would result from only one proposed means of access for the development.

The developer appealed from the board’s denial to the committee. G. L. c. 40B, § 22. Pursuant to 760 Code Mass. Regs. § 30.04(4) (2004), GELD was permitted to participate in the proceedings before the committee as an interested person, but not as an intervener. After conducting a de nova hearing, which included a site visit, the committee vacated the board’s denial of the comprehensive permit, and directed the board to issue a comprehensive permit subject to enumerated conditions.

With respect to the safety issues, the committee agreed with [38]*38the board that, if the access road were built with no changes to existing sight Unes, the lack of stopping sight distance on Lowell Road would constitute a safety hazard. The committee, however, determined that the hazard could be eliminated by regrading and clearing vegetation on a portion of the town’s property. That property measures approximately ten feet (at its widest point) by ninety feet in length. The committee noted that GELD was not willing to allow the developer to regrade and clear this portion of the property; activities that thus would require the developer to possess an easement. Acknowledging that conveyance of an easement would require a vote of the town meeting, the committee nonetheless concluded that it had authority under the Act to order the town to convey an easement. The committee determined that its power under § 21 of the Act “to issue permits or approvals as any local board or official” allowed it to remove any obstacles that local officials place in the way of an affordable housing development. Relying on Board of Appeals of Maynard v. Housing Appeals Comm., 370 Mass. 64 (1976), the committee further concluded that a vote of the town meeting was a requirement or regulation contemplated under the Act with which it had the authority to dispense. In its order directing the board to grant the developer a comprehensive permit, the committee imposed a condition requiring GELD to grant to the developer, and its successors, “an easement [on the above-described town land] to permit regrading and clearing of vegetation sufficient to provide approximately 350 feet of stopping sight distance to the west of the proposed development entrance.”

With respect to access to the project site, the committee agreed that legitimate local safety concerns existed because of the developer’s proposal to have only a single access road serve the development. The committee concluded that this problem could be remedied by providing a second means of access by way of an existing dirt roadway lying within National Grid’s easement, and bordering the western boundary of the property on which the substation sits. The committee noted that utilization of the dirt roadway would require crossing fifteen feet of the town’s property. The committee, referring to the section of its decision concerning the sight line easement, found that if GELD was not [39]*39willing to allow such a use, GELD could be directed to do so by the committee or by the board, by an order to convey a second easement.

The board and the town, acting by and through its selectmen (collectively the board), and GELD appealed from the committee’s decision, G. L. c. 40B, § 22, jointly filing a complaint for judicial review in the Superior Court under G. L. c. 30A. The board, GELD, and the developer filed cross motions for judgment on the pleadings. The committee filed an opposition. A Superior Court judge denied the board’s and GELD’s motions, and allowed the developer’s motion. On the issue of the sight line easement, the judge first noted that the order to GELD to convey an easement to the developer was, in essence, an order to the town, and its selectmen, to grant the easement. The judge recognized that “a giving up of property right in the [t]jown’s realty is not a matter to be taken lightly,” but found that the first easement only involved “a minimal giving up of a property right.” Relying on Board of Appeals of Maynard v. Housing Appeals Comm., supra, the judge concluded that a vote of the town meeting to grant an easement was not required. The judge did not address the emergency access easement. Judgment entered in favor of the committee and the developer, affirming the committee’s decision. The board and GELD appealed.

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Bluebook (online)
451 Mass. 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zoning-board-of-appeals-v-housing-appeals-committee-mass-2008.