Welch v. Paicos
| Decision Date | 02 September 1999 |
| Docket Number | No. CIV. A. 96-12316-WAG.,CIV. A. 96-12316-WAG. |
| Citation | 66 F.Supp.2d 138 |
| Parties | Matthew A. WELCH, d/b/a Jakmaw Associates, Plaintiff, v. Kevin A. PAICOS, individually, and in his official capacity as Town Administrator of the Town of Easton, the Town of Easton, Jeffrey Tufts, Patricia Hunt, William Hardin, Fred Clark, and Daniel Churchill, individually, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Jeffrey S. Robbins, Timothy J. Langella, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Boston, MA, for Plaintiff.
Charles B. Straus, III, Joseph M. Hamilton, Mirick, O'Connell, DeMallie & Lougee, Worcester, MA, Thomas Drechsler, Finneran & Byrne, William L. O'Brien, Finneran & Byrne, Dorchester, MA, Frank A. Smith, III, Frank A. Smith III & Associates, PC, Samuel Perkins, Brody, Hardoon, Perkins & Kesten, Boston, MA, for Defendants.
In this constitutional tort case, plaintiff Matthew A. Welch d/b/a Jakmaw Associates ("Welch") alleges that defendants Town of Easton and various Town officials violated his rights to petition for redress of grievances, to free speech, and to procedural and substantive due process. Plaintiff is a developer; defendants Jeffrey Tufts, Patricia Hunt, William Hardin, Fred Clark and Daniel Churchill are present and former Easton Selectmen; defendant Kevin Paicos is Easton's Town Administrator. This action arose when plaintiff sought to expand a development within Easton, but could proceed only with approval from the Town's Board of Selectmen. Plaintiff's allegations center on his attempts to appear before the Selectmen to discuss this development, and what he calls their impermissible refusal to allow this appearance. Arguing that Paicos and the Selectmen have worked together to thwart his desired expansion, and that Easton is liable for the actions of these officials, plaintiff seeks an injunction allowing him to build, and compensation for his alleged damages already sustained. After exhaustive and often contentious discovery, defendants Paicos, Tufts, Hunt, Hardin, Churchill and the Town have moved for summary judgment.1 We grant this motion in part, and deny it in part.
At least since the Second World War, our nation has faced the challenge of building homes that its poorer citizens can afford. See generally Affordable Housing and Urban Redevelopment in the United States (Willem van Vliet ed.1997). To build such affordable housing, of course, a planner or developer must locate a suitable construction site. There lies a rub: almost inevitably, wherever a development is planned, local residents will resist the construction of affordable homes. See Advisory Commission on Regulatory Barriers to Affordable Housing, Department of Housing and Urban Development, "Not In My Back Yard": Removing Barriers to Affordable Housing (1991). Many suburban and rural communities have fiercely opposed construction of local affordable housing. See, e.g., Spallone v. United States, 493 U.S. 265, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990). Such opposition may not be overt or even conscious: municipal zoning, permitting, and construction policies can frustrate or delay affordable housing, whether or not local authorities adopted them with such intent. See Paul K. Stockman, Note, Anti-Snob Zoning in Massachusetts: Assessing One Attempt at Opening the Suburbs to Affordable Housing, 78 Va. L.Rev. 535, 539-42 (1992). For these as well as other reasons, the national supply of affordable housing remains well below demand. See id. at 535-37.
Massachusetts first addressed this situation in 1969, when its legislature passed "An Act providing for the construction of low or moderate income housing in cities and towns in which local restrictions hamper such construction." Mass. Acts 1969, ch. 774 ("the Act") (codified as amended at Mass. Gen. Laws ch. 40B, §§ 20-23 and ch. 23B, § 5A (West 1994)).2 The Act, sometimes known as the `anti-snob zoning act,' was enacted "to provide expeditious relief from exclusionary local zooming bylaws and practices which might inhibit the construction of low and moderate income housing in the Commonwealth's cities and towns." Zoning Bd. of Appeals of Greenfield v. Housing Appeals Comm., 15 Mass. App.Ct. 553, 555, 446 N.E.2d 748 (1983) (Greaney, J.) ().
Under the Act, developers of subsidized housing follow a single, simple process. They need not seek the myriad permits from various agencies normally required for substantial construction; the Act thus shields these developers from seriatim municipal delays. Instead, qualified developers file only one application, addressed to the local Zoning Board of Appeals, or ZBA.3 Within thirty days of its filing, the ZBA must hold a public hearing on this application. See Mass. Gen. Laws ch. 40B, § 21. Within forty days of the hearing, after considering comments from affected local agencies, the ZBA must decide on the application's merit. If the ZBA approves the application, it must immediately grant an extraordinary approval called a comprehensive permit.4 The comprehensive permit supersedes most local procedures and allows construction to commence.5
If the ZBA denies the comprehensive permit, or grants it only "with such conditions and requirements as to make the building or operation of [the] housing uneconomic," the developer can appeal to the Housing Appeals Committee, or HAC.6 The HAC's review "shall be limited to the issue of whether, in the case of the denial of an application, the decision of the [ZBA] was reasonable and consistent with local needs."7 If the HAC finds that the ZBA's denial was reasonable and consistent with local needs, it will affirm the ZBA's denial of the comprehensive permit. Should the HAC find otherwise, it must reverse the ZBA and issue the permit.
To qualify for the Act's simplified process and procedural protections, a developer cannot simply decide to build inexpensive homes. The Act oversees only permit applications for "housing subsidized by the federal or state government under any program to assist the construction of low or moderate income housing as defined in the applicable federal or state statute." Mass. Gen. Laws ch. 40B, § 20. As a result, the scope of the Act's protection turns on the meaning of "subsidized," which the Act does not itself define.8 In decisions interpreting this term, ZBAs and the HAC adopted a narrow construction, reading it "to mean financial subsidies only." Mass. Regs.Code tit. 760, § 45.01. Under this definition, "cities and towns ... had little incentive to undertake housing initiatives which [did] not require direct state or federal financial assistance, but which in other respects [were] within the intent of the statute." Id. To bring otherwise-unsubsidized programs under the Act, and thus to provide this incentive, the Executive Office of Communities and Development ("EOCD") developed the Local Initiative Program ("LIP").9
Under the LIP, the EOCD provides "subsidy, in the form of technical assistance, to each [development] approved as part of the Local Initiative Program."10 This assistance constitutes the subsidy required by the Act, and thus brings a development "within the comprehensive permit process" of the Act. Id. § 45.01. To receive such technical assistance, a developer must meet the somewhat complicated LIP qualification criteria:
The Department shall, upon application from the Chief Elected Official of a city or town, certify that a housing development is a valid Comprehensive Permit Project if such development meets the following minimum requirements: (1) at least 25% of the units in such development will be Low and Moderate Income Units; (2) the developer will execute a Regulatory Agreement; (3) the units will be subject to Use Restrictions for the longest period of time allowed by law; (4) the developer or owners of the project will implement an affirmative fair marketing plan in a form approved or required by the Department; and (5) the project has the written support, where applicable, of the Local Housing Partnership.
Mass. Regs.Code tit. 760, § 45.04 (West 1999).11 Once approved by the EOCD under the LIP regulations, a project would qualify for, and eventually move through, the application process defined by the Act. To receive a comprehensive permit, a developer of affordable housing receiving no direct subsidy must therefore follow a multistep procedure along these lines:
(1) The developer selects a suitable site and formulates a development plan meeting the LIP criteria.
(2) The developer secures the written support of the local housing partnership.
(3) The developer signs a regulatory agreement with the EOCD and the municipality.
(4) The municipality's chief elected official submits a LIP application to the EOCD.
(5) The EOCD approves this application and authorizes technical subsidy, qualifying the development under the Act.
(6) The developer submits an application to the ZBA, asking for a comprehensive permit.
(7) The ZBA or HAC grants this application.
(8) Using the resulting comprehensive permit, the developer builds the project.
In the matter before us, plaintiff successfully negotiated this bureaucratic labyrinth, apparently to the satisfaction of most parties involved. Trouble soon arose, however, when Welch sought to enlarge his development beyond the permitted size, and thus to modify his outstanding comprehensive permit.
The Act does not contemplate modifications to already issued comprehensive permits. Similarly, the regulations governing LIP projects do not discuss modifications proposed after a project is approved. Massachusetts regulations do, however, provide a general mechanism for reviewing changes to comprehensive permits. See Mass. Regs.Code tit. 760, § 31.03(3). This procedure...
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