Taylor v. Board of Appeals of Lexington

• Court: Appeals Court of Massachusetts
• Writing for the Court: Mills
• Citation: Taylor v. Board of Appeals of Lexington, 863 N.E.2d 79, 68 Mass. App. Ct. 503 (Mass. App. 2007)
• Decision Date: 27 March 2007
• Docket Number: No. 06-P-255.,06-P-255.
• Parties: William TAYLOR & others<SMALL><SUP>1</SUP></SMALL> v. BOARD OF APPEALS OF LEXINGTON & others.<SMALL><SUP>2</SUP></SMALL>

863 N.E.2d 79

68 Mass. App. Ct. 503

William TAYLOR & others¹ v. BOARD OF APPEALS OF LEXINGTON & others.²

No. 06-P-255.

Appeals Court of Massachusetts,

Middlesex.

Argued October 20, 2006.

Decided March 27, 2007.

Jonathan D. Witten, Duxbury (Barbara Huggins with him) for the plaintiffs.

David S. Weiss, Boston (Michael S. Rabieh with him) for Rising Tide Development, LLC, & another.

Present: LENK, BERRY, & MILLS, JJ.

MILLS, J.

The board of appeals of Lexington (board) granted a comprehensive permit to the defendants Rising Tide Development, LLC, and RTD Greenhouse, LLC (developer). The plaintiffs (abutters) appealed that decision to Superior Court pursuant to G.L. c. 40B, § 21 (abutters' appeal). The developer appealed the same decision to the Housing Appeals Committee (HAC), G.L. c. 40B, § 22 (HAC appeal). After the HAC acted on the developer's appeal, the abutters appealed that HAC decision to Superior Court pursuant to G.L. c. 40B, § 22, and G.L. c. 30A, § 14. After the judge granted the developer's motion for summary judgment in the abutters' appeal, the abutters appealed to this court. This case requires us to construe the relationship between the abutters' and the developer's separate rights when each appeals the same decision of the local board pursuant to G.L. c. 40B, § 21, and G.L. c. 40B, § 22, of the Low and Moderate Income Housing Act (Act),³ respectively.

Comprehensive permitting. The general statutory scheme governing applications for comprehensive permits pursuant to the Act is described by the Supreme Judicial Court in Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 345-346, 294 N.E.2d 393 (1973). See Zoning Bd. of Appeals of Wellesley v. Ardemore Apts. Ltd. Partnership, 436 Mass. 811, 814-816, 767 N.E.2d 584 (2002). Accordingly, we set forth the relevant portions of the Act only briefly.

In an effort to provide a streamlined process for the issuance of permits required to construct affordable housing and to avoid the lengthy delays that sometimes pervade the permitting process, see Milton Commons Assocs. v. Board of Appeals of Milton, 14 Mass.App.Ct. 111, 117, 436 N.E.2d 1236 (1982), G.L. c. 40B, §§ 20-23, allows "qualified builder[s] wishing to build low or moderate income housing [to] file with a local board of appeals an application for a comprehensive permit instead of filing separate applications with each local agency having jurisdiction over the project." Zoning Bd. of Appeals of Wellesley v. Housing Appeals Comm., 385 Mass. 651, 656, 433 N.E.2d 873 (1982).

If the local zoning board approves the application, but does so with conditions that the developer alleges render the project uneconomic, or if the board denies the permit in its entirety G.L. c. 40B, § 22, provides the developer with a right of appeal to the HAC.⁴ See Board of Appeals of Hanover v. Housing Appeals Comm., supra at 345, 294 N.E.2d 393. When, as here, a developer appeals the issuance of a permit with conditions, the HAC's review is limited to determining "whether such conditions and requirements make the construction or operation of such housing uneconomic and whether they are consistent with local needs." G.L. c. 40B, § 23. At its discretion, the HAC "may allow any person showing that he or she may be substantially and specifically affected by the proceedings to intervene as a party in the whole or in any portion of the proceedings." 760 Code Mass. Regs. § 30.04(2) (2004). If the HAC concludes that a board's conditions to approval render the project uneconomic and inconsistent with local needs, "it 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." G.L. c. 40B, § 23. The HAC decision may be reviewed in Superior Court in accordance with G.L. c. 30A. G.L. c. 40B, § 22.

In contrast, an abutter or other party aggrieved by the issuance of a comprehensive permit or approval may appeal to a court pursuant to the zoning appeal procedures provided for in G.L. c. 40A, § 17⁵,⁶ (§ 17 appeal) rather than to an administrative agency. G.L. c. 40B, § 21. The § 17 appeal contains abbreviated notice provisions in order "[t]o avoid delay," and the court is required to hear, without jury, "all evidence pertinent to the authority of the board" and to "determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require." G.L. c. 40A, § 17. The statute provides that "the parties shall have all rights of appeal and exception as in other equity cases." Ibid. Finally, the statute provides that "[a]ll issues in any proceeding under [§ 17] shall have precedence over all other civil actions and proceedings." Ibid.

The Act, therefore, creates two separate appeal mechanisms, and the relevant mechanism to be employed in a given situation is dependent upon the identity of the appealing party. For aggrieved parties such as the abutters here, a right of appeal is provided to the courts. Permit applicants, by contrast, must appeal to a specialized administrative tribunal, the HAC. This case requires us to consider how these two distinct avenues of appeal interact when, as here, both the abutters and the developer timely exercise their statutory rights to appeal, and both parties challenge the same action of the board.

Background facts and proceedings. Given their relevance to our disposition, the factual background and procedural history of the dispute must be set forth in some detail. On January 31, 2002, the developer applied to the board for a comprehensive permit to construct forty-eight units of residential housing (project) on land located at 536-540 Lowell Street in Lexington. The permit application was filed pursuant to G.L. c. 40B, §§ 20-23.⁷ Public hearing commenced on March 14, 2002, and continued through December 12, 2002. On or about July 31, 2002, the developer submitted a revised application, reducing the number of proposed units from forty-eight to thirty-six.

On January 23, 2003, the board issued a comprehensive permit with conditions, including a reduction in the number of units from thirty-six to twenty-eight, and a mandate that eight of those twenty-eight units be designated for persons with low or moderate incomes as determined by Massachusetts Housing Finance Agency (MHFA) guidelines.⁸ The developer appealed to the HAC pursuant to G.L. c. 40B, § 22, while the abutters appealed that same decision to Superior Court pursuant to G.L. c. 40B, § 21. On March 31, 2003, a Superior Court judge granted the parties' assented-to motion to stay the abutters' appeal pending disposition of the HAC appeal.

Meanwhile on March 19, 2003, the abutters moved to intervene in the HAC appeal. Although their motion was not ruled upon until the HAC issued its decision on June 14, 2005, the abutters, through counsel were permitted to participate in the HAC proceedings as amici.⁹ The HAC conducted nine days of de novo evidentiary hearings. Ultimately, the HAC approved the developer's comprehensive permit application to build thirty-six units, designating nine as affordable, and striking some of the conditions imposed by the board. The abutters appealed the HAC decision pursuant to G.L. c. 40B, § 22, and G.L. c. 30A, § 14. That appeal is now pending in Superior Court.

After obtaining the aforesaid decision from the HAC, the developer filed a motion for summary judgment on October 19, 2005, seeking to dismiss the abutters' appeal. The developer asserted that the comprehensive permit originally issued by the board, which was the subject of the abutters' appeal, was no longer operative and had been extinguished and superseded by a different comprehensive permit bearing the modifications imposed by the HAC. The judge accepted this analysis and concluded that the HAC modification decision rendered the abutters' appeal moot, and that the abutters' only available vehicle for redress was the administrative appeal pursuant to G.L. c. 30A, § 14. In support of the compression of both appeals into one c. 30A administrative appeal, the judge reasoned that "both 40A [the abutters] and 40B [the developer] appellants are treated equally with the same de novo standard of review," and that "once the HAC determines that the Board's decision is `consistent with local needs' and `not otherwise uneconomic,' its final decision is binding for both appeals under chapters 40A and 40B." The judge further reasoned that permitting the abutters' appeal to proceed could allow communities to engage in exclusionary zoning¹⁰ practices that the Act was intended to prevent. Accordingly, the judge granted the developer's motion for summary judgment, dismissing the abutters' appeal. This appeal followed. We reverse.

On appeal, the abutters argue that the judge erred in allowing the developer's motion for summary judgment both because genuine issues of material fact are extant, and because it was error to conclude that their G.L. c. 40B, § 21, appeal to the Superior Court was mooted by the decision of the HAC.

Summary judgment standard. A motion for summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and responses to request for admission under [Mass. R.Civ.P. 36, 365 Mass. 795 (1974) ], together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass.R.Civ.P. 56, 365 Mass. 824 (1974). The developer, as moving party, has the burden of establishing "that there are no material issues of fact and that [it] is entitled to judgment as a matter of law." Highlands Ins. Co. v. Aerovox, Inc., 424 Mass. 226, 232, 676 N.E.2d 801 (1997). On appeal, "[a]n order granting or denying summary judgment will be upheld if the trial judge ruled on undisputed material facts and his...