Housing Alert: SJC Holds That Easement over Municipal Land Is Not Authorized under Chapter 40B

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In the March 31, 2008 decision of the Massachusetts Supreme Judicial Court (SJC) entitled Zoning Board of Appeals of Groton v. Housing Appeals Committee, 451 Mass. 35 (2008), the state’s highest court held that Massachusetts’ affordable housing statute, Chapter 40B, does not authorize the state Housing Appeals Committee (HAC), or local zoning boards of appeals, to order a city or town to convey an easement of municipally owned land to a subsidized housing developer. The Groton case was the first case to be decided among a group of seven Chapter 40B cases upon which the SJC heard oral arguments in early February 2008. See “Supreme Judicial Court to Hear Seven Housing Cases in February” (Mintz Levin Housing Advisory, Jan. 30, 2008).

In Groton, a subsidized housing developer proposed to the Groton Zoning Board of Appeals (the “Groton ZBA”) the construction of a 44-unit condominium project by Chapter 40B

comprehensive permit. The Groton ZBA denied the developer’s application on grounds that included the Groton ZBA’s concern that, as proposed, the project would result in an unsafe stopping sight distance for vehicles traveling on the curving road fronting the project site when those vehicles encountered others exiting or entering the development’s access road. On the developer’s appeal to the HAC of the Groton ZBA’s denial, the HAC agreed with the Groton ZBA’s position with respect to an unsafe stopping sight distance on the main travel road. However, the HAC had a solution: the danger could be eliminated by clearing vegetation and regrading a swath of abutting town-owned land totaling approximately 900 square feet that is used by the Groton Electric Light Department. Such work would require an easement, which the town was unwilling to grant.

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