Board of Appeals of Hanover v. Housing Appeals Committee in Dept. of Community Affairs

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation363 Mass. 339,294 N.E.2d 393
PartiesBOARD OF APPEALS OF HANOVER v. HOUSING APPEALS COMMITTEE IN the DEPARTMENT OF COMMUNITY AFFAIRS and others. BOARD OF APPEALS OF CONCORD v. HOUSING APPEALS COMMITTEE IN the DEPARTMENT OF COMMUNITY AFFAIRS and another.
Decision Date22 March 1973

William J. Flynn, Jr., Hingham, for the Board of Appeals of hanover.

Eric Verrll, William F. Frado, Jr., Boston, with him, for the Board of Appeals of Concord.

Robert J. Condlin, Asst. Atty. Gen., for the Housing Appeals Committee in the Dept. of Community Affairs.

Thomas J. Kelly, Springfield, for Country Village Corp. and others.

John H. Clymer, Concord, for Concord Home Owning Corp., intervener.

Alexander J. Cella and Robert Cohen, Boston, for Newton Civic and Land Assn. and another, amici curiae, submitted a brief.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, and KAPLAN, JJ.

TAURO, Chief Justice.

This is a reservation and report by a Superior Court judge without decision of two suits in equity brought by (1) the board of appeals of the town of Hanover (Hanover board) and (2) the board of appeals of the town of Concord (Concord board). We have before us the records of the proceedings before both boards and the Housing Appeals Committee (committee) as certified by the committee. The boards denied applications for comprehensive permits to build low and moderate income housing filed pursuant to the provisions of G.L. c. 40B, §§ 20 and 21, and the applicants appealed to the committee pursuant to G.L. c. 40B, § 22. The committee rendered two decisions, in each case reversing the board and ordering the issuance of the permit. The suits, brought under G.L. c. 40B, § 22, and G.L. c. 30A, § 14, seek review of the committee's decisions. The cases were argued together. The bills present similar questions concerning the constitutional validity and the substantive and procedural effects of G.L. c. 40B, §§ 20--23, inserted by St.1969, c. 774, § 1 (c. 774). The cases are,

therefore, decided together. The Hanover Proceedings. $In

April, 1970, Country Village Corporation filed an

application with the Hanover board for a comprehensive

permit to construct eighty-eight units of low and moderate

income housing for the elderly on approximately ten acres of

land. After holding public hearings on the application, as

required by G.L. c. 40B, § 21

, and G.L. c. 40A, § 17

, the board refused to issue the permit. The board then

filed with the clerk of the town of Hanover its decision

denying the permit and the reasons for the denial. 1

In December, 1970, the applicant appealed to

the committee. G.L. c. 40B, § 22

. The committee, after holding public hearings on the

appeal pursuant to G.L. c. 40B, §§ 22

and 23

, vacated the decision of the board in July, 1971, and

ordered the board to issue a comprehensive permit for the

project, subject to specified conditions. 2 The

Hanover board then filed this bill for review in the Superior Court.

The Concord Proceedings.

In January, 1971, the Concord Home Owning Corporation filed with the Concord board an application for a comprehensive permit to construct sixty garden apartment units of low and moderate income housing on approximately five and one-half acres of land. The board then held public hearings on the application as required by G.L. c. 40B, § 21, and G.L. c. 40A, § 17, and refused to issue the permit. The board filed with the clerk of the town of Concord its decision denying the permit and the reasons for the denial. 3 In April, 1971, the applicant appealed to the committee. G.L. c. 40B, § 22. After holding the required public hearing on the appeal, the committee vacated the decision of the board and ordered the board to issue the applicant a comprehensive permit for the project, subject to specified conditions. 4 The board then filed this bill for review in the Superior Court.

Issues Presented.

The bills present three issues for resolution concerning the powers and procedures of the boards of appeals and the committee under G.L. c. 774. We must determine:

(a) whether c. 774 confers power upon both the committee and the boards to override zoning regulations which hamper the construction of low and moderate income housing;

(b) whether such power to override zoning regulations, if it exists, is constitutional; and

(c) whether such power to override zoning regulations, if it exists, was properly exercised by the committee in the instant cases.

Chapter 774 5 permits a qualified applicant 6 interested in building low or moderate income housing to file with a board of appeals an application for a comprehensive permit instead of filing separate applications with each local agency or official having jurisdiction over various aspects of the proposed project. The statute allows the board of appeals to grant a single comprehensive permit for construction after considering the recommendations of the local agencies or officials. General Laws c. 40B, § 21, establishes a specific time period within which the board of appeals must make its decision. If the board makes no decision within this period, 'the application shall be deemed to have been allowed and the comprehensive permit or approval shall forthwith issue.' § 21. If the board issues a comprehensive permit, any person aggrieved by its decision may appeal to the District or Superior Court as provided in § 21 of G.L. c. 40A.

Whenever the board of appeals denies an application or grants it with conditions which make the building or operation of the proposed housing project 'uneconomic,' 7 § 22 grants the applicant a right of appeal to the committee. The committee is required to conduct a full hearing with a stenographic record within twenty days of the receipt of the applicant's appeal and it must render a written decision 'stating its findings of fact, its conclusions and the reasons therefor within thirty days after the termination of the hearing, unless such time shall have been extended by mutual agreement between the committee and the applicant.' Section 23 limits the committee's review to determining whether the board of appeals' decision to deny the application was 'reasonable and consistent with local needs' 8 as defined by § 20. If the board grants the application subject to conditions, § 23 limits the committee's review to determining whether the conditions make the construction or operation of the housing uneconomic and whether the conditions are consistent with local needs. If the board's decision to deny the permit or to impose uneconomic conditions on its approval is found to be consistent with local needs, the committee must affirm the board's decision. 'If the committee finds, in the case of a denial, that the decision of the board of appeals was unreasonable and not consistent with local needs, it shall vacate such decision and shall direct the board to issue a comprehensive permit or approval to the applicant.' § 23. If the committee finds that the conditions imposed by the board in approving the application make the building or operation of the housing 'uneconomic' and that the board's decision is not consistent with local needs, the committee 'shall order such board to modify or remove any such condition or requirement so as to make the proposal no longer uneconomic and to issue any necessary permit or approval.' The committee's decision is subject to judicial review in accordance with c. 30A's provisions. G.L. c. 40B, § 22.

1. Does c. 774 Confer upon both the Committee and the Boards the Power to Override Local Zoning Regulations to the Extent that such Regulations Conflict with the Implementation of c. 774?

The boards argue that the Legislature did not intend to grant the power to override local zoning by-laws or ordinances to any authority when it enacted c. 774. Thus, their respective decisions to deny comprehensive permits in these cases were reasonable and consistent with local needs because neither they nor the committee had authority to issue comprehensive permits for a use of land not permitted under local zoning by-laws. The boards contend that the Legislature's purpose in enacting c. 774 was merely to provide a streamlined procedure for processing applications for the necessary local approvals of construction of low or moderate income housing. Where previously an applicant was forced to negotiate with various local agencies or officials before gaining their approval, c. 774's new time limits expedited the process by allowing the applicant to apply for and obtain a comprehensive permit from a single agency, the board of appeals. The committee argues, to the contrary, that the text, history, and context of c. 774 indicate that the Legislature intended to confer to both the board and the committee the power to override any local requirements and regulations, including zoning by-laws, which prevented the construction of low and moderate income housing when such housing is deemed 'consistent with local needs.'

To resolve this controversy over c. 774's essential purpose, we Must examine its detailed legislative history to determine the nature of the problem that the statute was designed to remedy. The boards' interpretation of the statute rests on their argument that the Legislature was chiefly concerned with speeding up the processing of applications for the construction of low and moderate income housing. However, the legislative history of c. 774 indicates that the Legislature was more concerned with the cities' and towns' possible use of their zoning powers to exclude low and moderate income groups.

The legislative history of c. 774 begins with a 1967 Senate Order, No. 933, which directed the Legislative Research Couneil (Council) to 'undertake a study and investigation relative to the feasibility and implications of restricting the zoning power to cities and county governments with particular emphasis on the possibility...

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