Jepson v. Zoning Bd. of Appeals of Ipswich

• Decision Date: 20 November 2007
• Docket Number: SJC-09914.
• Citation: 876 N.E.2d 820,450 Mass. 81
• Parties: Warren JEPSON v. ZONING BOARD OF APPEALS OF IPSWICH & another<SMALL><SUP>1</SUP></SMALL> (and a consolidated case<SMALL><SUP>2</SUP></SMALL>).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

876 N.E.2d 820

450 Mass. 81

Warren JEPSON v. ZONING BOARD OF APPEALS OF IPSWICH & another¹ (and a consolidated case²).

SJC-09914.

Supreme Judicial Court of Massachusetts, Essex.

Argued October 2, 2007.

Decided November 20, 2007.

Catherine J. Savoie, Boston (Todd L. Tisdale with her) for Warren Jepson.

Michael A. Tucker, Newburyport, for Ipswich Housing Authority.

Howard M. Brown, Boston (Thomas M. Looney with him) for YMCA of the North Shore, Inc.

The following submitted briefs for amici curiae:

Michael E. Malamut, Boston, Martin J. Newhouse, & Jo-Anne Shotwell Kaplan for New England Legal Foundation.

Jeffrey W. Sacks, Jeffrey S. Brenner, & Stephen M. LaRose, Boston, for Citizens' Housing & Planning Association & another.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

GREANEY, J.

We transferred these cases here on our motion to decide whether a local board of appeals, when granting a comprehensive permit under G.L. c. 40B, §§ 20-23, may override local zoning requirements when a commercial use is included within an affordable housing development. We also consider claims of standing, including whether a municipal housing authority, which is an abutter to an affordable housing development, has standing to challenge the grant of a comprehensive permit. We conclude that one of the plaintiffs here had standing and that the zoning board of appeals (board) of Ipswich (town) did not exceed its authority in overriding local zoning requirements for the commercial component of the affordable housing development at issue.

The background of the case is as follows. The defendant YMCA of the North Shore, Inc. (YMCA), is a nonprofit organization that owns slightly over two acres of land³ located at 108 and 112 County Road (on Routes 1A and 133) in Ipswich (property). The plaintiffs, Warren Jepson and the Ipswich Housing Authority (housing authority), are abutters to the property entitled to notice under G.L. c. 40B, § 21, and G.L. c. 40A, § 11.⁴ Jepson owns, and resides on, property that is adjacent to 108 County Road. The housing authority owns property directly across the street from the YMCA's property. On some of its property, the housing authority operates eighty units of subsidized elderly housing and fourteen units of affordable family housing.

In January, 2004, the YMCA applied to the board for a comprehensive permit to build forty-eight rental units of low and moderate income residential housing in two separate structures on the property,⁵ and to include within the structure at 112 County Road approximately 8,220 square feet of commercial space. The project is referred to as the Powder House Village development. Generally, the project involves the removal of existing structures on the property and the construction of two new structures, associated parking, pedestrian walkways, storm water drainage systems, and utilities.

Each new structure will be three stories in height. The proposed structure at 108 County Road contemplates only residential use, comprising thirty units (six one-bedroom units, sixteen two-bedroom units, and eight three-bedroom units). The proposed structure at 112 Country Road will involve the construction of a mixed-use structure, consisting of both residential and commercial uses. The structure will contain eighteen residential units (four one-bedroom units, eight two-bedroom units, and six three-bedroom units). In addition, the structure will contain approximately 8,220 square feet of commercial space on the first floor. For this space, the YMCA proposes a YMCA child care facility that will occupy 3,970 square feet, a bank with a drive-up teller window, and a coffee shop or similar establishment.⁶ Vehicular access to the proposed structures will be by an existing driveway located at 110 County Road, property also owned by the YMCA, and on which the Ipswich Family YMCA is situated.

The property located at 108 County Road is included within the "rural residential A" zoning district. The property at 112 County Road is located in the "highway business" zoning district. The parties did not provide a copy of the town's zoning bylaw in its entirety, but no one disputes the fact that "commercial components [or uses] are allowed in the underlying [h]ighway [b]usiness [d]istrict in the [bylaw]." The development of the structure proposed for 112 County Road will violate two dimensional requirements of Ipswich's zoning bylaw—the minimum front setback of fifty feet and the minimum side setback of twenty feet for commercial uses.⁷ To the east and north of the property lies a "large wetland," comprising over fifty acres. The property directly abuts "extensive stream-ways and border[s] vegetated wetlands" and "is an important and extensive system of wetlands." The water source "nourishes the Ipswich River and Saltonstall Brook," and "functions as a floodwater storage area." As such, in its application for a comprehensive permit, the YMCA also sought waivers from the bylaw that limit "development and activity within a portion of the buffer zone [of the wetlands], so-called no-build and no-disturbance zones."

After a series of public hearings, and its own extensive review, the board, in October, 2004, voted to grant the YMCA a comprehensive permit. The grant was made subject to the imposition of forty-two conditions. The conditions included the following: a statement of permissible and impermissible commercial uses for the commercial space at 112 County Road⁸; a requirement that one hundred per cent of the dwelling units be reserved for rental to households earning no more than sixty per cent of the median household income for the Boston primary metropolitan statistical area; a requirement that all of the units remain affordable in perpetuity or as long as the property is used for residential purposes and does not comply with local zoning requirements, whichever is longer; requirements addressing and monitoring traffic; and a requirement that both structures, and all units therein, connect to town water and sewer.

In addition, the board imposed a number of conditions concerning drainage and storm water management. The board required that the YMCA comply with the storm water management policy of the Department of Environmental Protection (department),⁹ and in the event that such compliance is neglected, provided that "the [t]own may perform necessary maintenance or repairs and the [YMCA] shall convey any easement necessary to implement such guidelines [for the operation and maintenance of the storm water management system] [and] reimburse the [t]own for any and all expense associated therewith." The board also provided that the conservation commission's order of conditions, or any applicable order of the department concerning the property, "shall be made a part of [the] comprehensive permit."

Pursuant to G.L. c. 40B, § 21,¹⁰ the plaintiffs filed separate complaints in the Superior Court challenging the board's decision to grant the comprehensive permit. The cases were consolidated and the parties filed cross motions for summary judgment. The YMCA moved for summary judgment on the ground that the plaintiffs lacked standing. The plaintiffs filed oppositions, and cross motions for summary judgment, seeking to invalidate the board's grant of the permit on the ground that the board lacks authority under G.L. c. 40B, §§ 20-23, to waive local dimensional zoning requirements regulating commercial uses on property being used for the development of affordable housing.

The judge initially noted that the parties submitted evidence of events that occurred after the board had granted the comprehensive permit. In particular, in December, 2004, the conservation commission issued an order of conditions for the project. Later, in July, 2005, after conducting its review of the project, the department issued a superseding order of conditions affirming the conservation commission's original order of conditions. The superseding order contained the following special condition, modifying the original order:

"At the time of construction, it shall be the applicant's responsibility to evaluate whether any flooding caused by beaver dams¹¹ has altered the site conditions such that the function or performance of any of the proposed water management structures would be adversely affected. If so, the applicant shall propose modifications, limited to the location and/or elevation of those elements of the storm water system, to [the department] and the conservation commission for review. If the modifications are acceptable to [the department], they shall be approved for construction. No construction shall take place until such approval is received in writing."

The approval states that, in the department's opinion, "the project as proposed and conditioned herein adequately protects the interests of the [Wetlands Protection] Act and [r]egulations."

The judge went on to address standing. The judge noted that the plaintiffs, as abutters, ordinarily are entitled to a presumption of standing. Relying on the Appeals Court's decision in Standerwick v. Zoning Bd. of Appeals of Andover, 64 Mass.App.Ct. 337, 833 N.E.2d 181 (2005), S.C., 447 Mass. 20, 849 N.E.2d 197 (2006), the judge concluded that because the board had not presented evidence warranting a conclusion that Jepson's property would not be diminished in value as a result of the project, Jepson had at least one valid basis for standing. Because one plaintiff had standing to appeal, the judge declined to decide whether a municipal housing authority that is an abutting landowner may be a "person" for purposes of standing. See Save the Bay, Inc. v. Department of Pub. Utils., 366 Mass. 667, 674-675, 322 N.E.2d 742 (1975).

The judge went on to reject the claim that the board lacked authority to override local zoning requirements as applied to a commercial component of an affordable housing development. The judge concluded that Jepson failed...