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

• Decision Date: 05 April 1976
• Citation: 345 N.E.2d 382,370 Mass. 64
• Parties: BOARD OF APPEALS OF MAYNARD v. HOUSING APPEALS COMMITTEE IN the DEPARTMENT OF COMMUNITY AFFAIRS et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 382

345 N.E.2d 382

370 Mass. 64

BOARD OF APPEALS OF MAYNARD

v. HOUSING APPEALS COMMITTEE IN the DEPARTMENT OF COMMUNITY

AFFAIRS et al. ¹

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 5, 1976.

Decided April 5, 1976.

George P. Luker, Town Counsel, Maynard, for the Board of Appeals of maynard.

Robert T. Harrington, Boston (Erik Lund, Boston, with him), for Woodcrest Village Associates.

Francis X. Bellotti, Atty. Gen., and Danielle E. deBenedictis, Special Asst. Atty. Gen. for the Housing Appeals Committee in the Department of Community Affairs.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ. BRAUCHER, Justice.

Woodcrest Village Associates, formerly Maynard Development Associates (the developer), applied to the Board of Appeals of Maynard (board) for a comprehensive permit for the construction of low and moderate income housing, pursuant to G.L. c. 40B, §§ 20--23, inserted by St.1969, c. 774, § 1, sometimes called the Anti-Snob Zoning Act. See Rodgers, Snob Zoning in Massachusetts, 1970 Ann.Surv.Mass.Law, pp. 487, 489--494. The board denied the permit, but the Housing Appeals Committee in the Department of Community Affairs (HAC) vacated the board's order and ordered the permit issued, subject to stated conditions. The HAC decision was affirmed in the Superior Court, and we now affirm the Superior Court judgment.

The developer applied for the permit on July 25, 1972. The board denied it on November 2, 1972, in part on grounds later rejected in Board of Appeals of Hanover v. Housing Appeals Comm. in the Dep't of Community Affairs, 363 Mass. 339, 294 N.E.2d 393 (1973). On the developer's appeal, HAC held hearings for twelve sessions resulting in about 2,000 pages of transcript. On February 13, 1974, HAC filed a memorandum of findings and rulings of thirty-five pages, and on April 22, 1974, HAC entered its decision. As amended, the board's petition for review under G.L. c. 30A, pursuant to G.L. c. 40B, § 22, alleged fifty-four errors, which the judge briefly summarized as six in his findings and rulings. Judgment affirming the HAC decision was entered January 16, 1975, and the board appealed. We ordered the case transferred to this court on our own motion. None of the eight points argued by the board has merit, and we deal with them briefly.

1. Composition of HAC. Under G.L. c. 23B, § 5A, HAC is to consist of five members, one a selectman. The selectman member resigned, the chairman ceased to function, and the present case was decided by three members. Three members could act. G.L. c. 4, § 6, Fifth. Albano v. Selectmen of S. Hadley, 341 Mass. 494, 496, 170 N.E.2d 685 (1960), and cases cited.

2. Administrative Procedure Act. Under G.L. c. 30A, § 11(7), inserted by St.1954, c. 681, § 1, 'If a majority of the officials of the agency who are to render the final decision have neither heard nor read the evidence,' there must be a 'tentative or proposed decision' and 'an opportunity . . . to file objections and to present argument, either orally or in writing as the agency may order . . ..' The judge found that one member of HAC attended all the hearings, one attended some and read transcripts of the rest, and the third attended none and read selected portions of the transcripts, and that the board received a document tantamount to a proposed decision and was given an opportunity to file objections and present arguments. We uphold his ruling that the procedure was proper both on the ground that a majority of the deciding officials heard or read the evidence and on the ground that there was a 'proposed decision' and a statutory 'opportunity.'

3. Massachusetts Environmental Policy Act. The HAC decision called for a comprehensive permit subject to ten conditions, including the following: '1. The comprehensive permit shall not be implemented until the Housing Appeals Committee has fully complied with Mass.G.L. c. 30, §§ 61--62 and the Housing Appeals Committee shall retain authority to modify this decision based upon findings of forms or reports prepared in connection therewith, all in accordance with its Regulations Under the Massachusetts Environmental Policy Act, Section 5.1.A.1.' The board sought review of the cited regulation, but a single justice of this court dismissed the board's petition for declaratory judgment, without prejudice to review in the present proceeding. The Superior Court judge noted the board's contention that HAC had failed to comply with §§ 61 and 62, but did not discuss it. The action taken complies with the cited regulation, and we are unable to follow the board's argument that the regulation is unauthorized.

4. Eligibility of the developer. The project comes within the definition of 'low or moderate income housing' in G.L. c. 40B, § 20, only if the developer is a 'limited dividend organization.' The developer did not become a duly organized limited partnership until after its application had been denied by the board. HAC ruled that it was an 'organization' when it made application to the board, and that under HAC Rules and Regulations § 1(f) it was a 'limited dividend organization' if it was eligible to receive a subsidy. We agree. Board of Appeals of Hanover v. Housing Appeals Comm. in the Dep't of Community Affairs, 363 Mass. 339, 378--380, 294 N.E.2d 393 (1973).

5. Site size. Under the definition of 'consistent with local needs' in G.L. c. 40B, § 20, as...