HIGHLIGHTS:

• The Supreme Judicial Court (SJC) of Massachusetts is being petitioned for further appellate review in two recent cases involving the production of much-needed housing in the Commonwealth.
• The first of these two cases involved a 23-unit senior housing development that was proposed on 23 acres in Lenox pursuant to the Zoning Enabling Act.
• The second proposal entails a Comprehensive Permit under Massachusetts General Laws Chapter 40B to construct a three-story building in Stow consisting of 37 one-bedroom units of elderly housing.

It's that time of year again. Time for "Further Review."

By that, I mean it's football season, and almost every week, millions of Americans watch in anticipation as black-and-white-striped NFL arbiters retreat to the sidelines, go "under the hood," exchange secret communications with the league's offices in New York, and ultimately declare: "[u]pon further review, the ruling on the field. ..."

In a process that can be categorized as equally opaque, although not nearly as closely watched, the Supreme Judicial Court (SJC) of Massachusetts is being petitioned for further appellate review in two recent cases involving the production of much-needed housing in our Commonwealth. Both of these decisions involve the well-established principle that courts owe "a highly deferential bow to local control over community planning." Britton v. Zoning Board of Appeals of Gloucester, 59 Mass.App.Ct. 73-74-(2003).

In one case, a dissenting justice has alleged that the local board's conclusions consisted "merely of a summary recitation" of a by-law's criteria and were therefore "legally untenable." Conversely, a second appellate panel has departed from a long accepted norm with respect to the sufficiency of compliance with state environmental standards by affordable housing developments. The petitioners for further review in that case have cried foul, alleging that the panel essentially substituted its own judgement for that of the local board.

The first of these two cases involved a 23-unit senior housing (55 years of age and older) development that was proposed on 23 acres in Lenox pursuant to our beloved Zoning Enabling Act (Chapter 40A). The second proposal entails a Comprehensive Permit under Massachusetts General Laws Chapter 40B (Chapter 40B or the Affordable Housing Law) to construct a three-story building in Stow consisting of 37 one-bedroom units of elderly housing.

A word of caution: Care should be taken to cleanse one's cognitive palate thoroughly in between reading these two decisions before making any pronouncements about the degree of deference to be afforded to local permit granting authorities.

Buccaneer Development, Inc. v. Zoning Board of Appeals of Lenox

The Buccaneer Development case (known as Buccaneer II), whose merits were decided by the Appeals Court in August, was also wrapped up in a disturbing (and lengthy) bit of procedural foreplay involving the Land Court Permit Session. Notwithstanding the good intentions of legislation known as "An Act Relative to Streamlining and Expediting the Permitting Process in the Commonwealth," the Buccaneer litigation became bogged down in a quagmire involving the subject matter jurisdiction of the Housing Court. In an exchange worthy of a Wimbledon match point volley, the case shuttled back and forth between the Housing Court, the Appeals Court, the same Housing Court justice sitting by designation in the Permit Session, and then ultimately back to the Appeals Court.

Procedural issues aside, Buccaneer II is notable for its stinging dissent from Associate Justice Berry. Her words are potent: "I do not accept, and cannot give deference to, the fatally vague and cursory decision of the Lenox zoning board of appeals..., which, from all that appears, was tantamount to an unbridled and arbitrary conclusion that the board simply did not want this project to move forward." She decried the "vague and standardless nature of the by-laws at issue."

The bylaw required five findings, two arguably "more or less objective" and three of which even the majority conceded were "more subjective factors." Your correspondent's favorite factor requires the board find that the project "will not be detrimental to adjacent uses or to the established or future character of the neighborhood." One board member stated the proposed development "was unduly dense and would be detrimental to the established 'small-town' character of the neighborhood, and the 5-0 decision of the board echoed that sentiment."

Folks, we are talking about one-acre zoning here; that hardly qualifies as an existential challenge to any community.

Reynolds v. Zoning Board of Appeals of Stow

A little more than one month later, in Reynolds, the issue centered around which standard should be applied by the local permit granting authority. A different panel of the Appeals Court took an arguably different approach in its review of a local board's decision under the Affordable Housing Law.

Reynolds, like Buccaneer II, was about more than the merits.

In this case the recurring issue of determining standing in Chapter 40B appeals by abutters surfaced yet again. Here, the trial court specifically found the plaintiff's expert not credible when it came to showing injury to the plaintiff in the form of impact to his drinking well. Absent such a particularized harm, does such a plaintiff have standing to contest an impact that may result to a neighbor's well?

On its merits, the case centered on the impacts of a wastewater disposal system in an area of sandy, well-draining soil. As part of its decision, the Zoning Board of Appeals (ZBA) waived certain local wastewater disposal system limitations, but conditioned the issuance of a building permit upon demonstrating compliance with state Title V requirements. Such an approach has been followed for Comprehensive Permits since the days of the Hanover case dating back to 1973.

The Reynolds court declared that: "[c]ompliance with State standards, however, is not necessarily the end of the inquiry." The court stated that this "presumption" had been rebutted by evidence presented by the plaintiff with respect to the exceedance (at a neighbor's well) of criteria under a nitrogen loading analysis.

The trial court's opinion, however, stated that the project was not located in a "nitrogen sensitive area" and was not "otherwise subject to the Massachusetts Department of Environmental Protection (MassDEP) limit on sewage volumes within such areas." As the petitioners for further review plainly stated, the Appeals Court focused on the fact that nitrogen levels in the groundwater at a neighbor's well could exceed an inapplicable standard under a measurement that is not required by state regulation.

Without further review, this decision of an intermediate appellate panel could very well substantially change the rules of the game under the Affordable Housing Law, encourage the proliferation of scientifically questionable local environmental requirements, and further undermine the essential purpose of Chapter 40B. Such a path may very well be taken by the courts; however, if it is to be taken, it should only be taken by the Supreme Judicial Court upon further review.

By any measure, these cases represent two "bad calls" for housing production. Petitions for further review by the SJC are pending at the time of this writing. Will the "rulings on the field" be reversed?

This article was originally published in REBA News (December 2015), the newspaper of the Real Estate Bar Association for Massachusetts, and is republished here with permission.