Earlier this month, Mintz Levin's Housing Practice Group issued an advisory regarding an Appeals Court decision that potentially undermined Chapter 40B by keeping alive an abutter group's original appeal of a comprehensive permit to construct subsidized housing even though that permit had been later modified by the Housing Appeals Committee (HAC) and the same abutters group had filed a separate appeal of the modified permit. See
Mintz Levin Housing Advisory, "Appeals Court Grants Abutters Two Chances to Appeal Comprehensive Permits; Ruling Raises Practical Questions," April 6, 2007. Now the Massachusetts Superior Court judge handling that parallel appeal, the abutter's appeal of the HAC's modified comprehensive permit for the same project, has issued a decision affirming the HAC decision in all respects. It is not so much that affirmance, however, that makes this Superior Court decision significant. The new decision issued a ringing endorsement of the HAC's method for handling appeals already in process from a town that reaches the 10% threshold for subsidized housing units.
Chapter 40B says that once a municipality is deemed by the Department of Housing and Community Development (DHCD) to have 10% or more of its overall housing stock comprised of "countable" subsidized housing, that city or town is able to deny a new comprehensive permit application without fearing a developer appeal. But what happens when a city or town reaches the magic 10% threshold after the zoning board of appeals (ZBA) issues its decision (either a denial or an approval with conditions) and the developer is appealing the decision?
The new Superior Court decision in Taylor v. Housing Appeals Comm., No. 05-2910-B (Suffolk Superior Court April 9, 2007) (Kottmyer, J.) holds that the time for measuring when a municipality can invoke the 10% safe harbor to forestall a comprehensive permit applicant's right of appeal is when the ZBA decision on that application is filed with the city or town clerk. Therefore, if a ZBA denies an application (or approves it with conditions objectionable to the applicant) while the city or town is still below 10%, the applicant's HAC appeal can proceed even if the municipality later reaches 10%. This counting rule, already codified in DHCD regulations and enunciated in HAC decisional law, provides a measure of protection to developers from the danger of "dueling applications" by preventing a ZBA from extinguishing an applicant's appellate...