Heard: March 8, 2016
action commenced in the Superior Court Department on March
case was heard by Edward P. Leibensperger, J., on motions for
judgment on the pleadings.
Christopher Robertson (Jonathan D. Witten with him) for the
Suleyken D. Walker for Housing Appeals Committee. Kevin P.
O'Flaherty for Hanover R.S. Limited Partnership.
Present: Hanlon, Sullivan, & Massing, JJ.
appeal concerns the standards that defendant housing appeals
committee (HAC) applies when it reviews the decision of a
local zoning board of appeals to deny an application under
the Comprehensive Permit Act, G. L. c. 40B, §§
20-23 (act), based on municipal planning concerns.
plaintiffs, owners and lessors of commercial and industrial
properties neighboring the proposed housing development
(hereinafter, abutters or, in context, interveners), appeal
from a judgment of the Superior Court affirming the HAC's
decision directing the zoning board of appeals for the town
of Andover (board) to issue a comprehensive permit to
defendant Hanover R.S. Limited Partnership (developer). The
abutters claim that the HAC impermissibly applied a new
standard, not contained in any statute, regulation, or
previous HAC decision, in evaluating Andover's municipal
planning efforts. In the alternative, they claim that the HAC
erroneously applied the applicable standard. The defendants,
for their part, contend that the abutters lack standing to
bring this appeal. Concluding that the abutters have
standing, we reach the merits and affirm the judgment of the
Superior Court affirming the HAC's decision.
August 19, 2011, the developer filed an application for a
comprehensive permit to build a mixed income rental housing
development to be known as the "Lodge at Andover"
within an existing office and industrial park. The proposed
location for the residential development, 30 Shattuck Road,
is mostly within Andover's River Road industrial D
district, a commercial and industrial area in the
northernmost part of Andover, near the River Road exit of
Interstate Route 93.Shattuck Road, a dead end, and Tech
Drive, a small looping road off of Shattuck Road, make up the
office and industrial park consisting of ten large businesses
and one vacant lot: the proposed site. The office and
industrial park houses offices, research and development
facilities, and some light industrial
operations. After unsuccessfully marketing the
vacant lot for commercial development, the previous owner
entered into a purchase and sale agreement with the
developer, which intended to build the housing complex. The
development, as currently planned, is to consist of 248
rental units in four buildings, a playground, a swimming
pool, and a 5, 000-square-foot clubhouse; twenty-five percent
of the units will be reserved for affordable housing.
time of the developer's application for a comprehensive
permit, the percentage of affordable housing in Andover was
9.3 percent, creating a rebuttable presumption that the local
need for affordable housing outweighed other local
concerns. Nonetheless, after numerous public
hearings, the board denied the developer's application in
a decision dated September 7, 2012, on the ground that the
"proposed project is inconsistent with decades of
municipal planning, economic development strategies, and
planning with owners and tenants of the abutting industrial
properties[, ] . . . most notably, the rezoning of the locus
and abutting properties to accommodate and develop a modern,
competitive, and viable industrial park and industrial
center." The board noted that industrial and commercial
uses generate noise, dust, vibration, and truck traffic
during their extended hours of activities, which "will
pose a threat to the public health and safety of the
occupants of the development." Thus, the board concluded
that "[t]he stated purpose of the Industrial 'D'
zoning district is inexorably inconsistent with residential
developer appealed to the HAC under G. L. c. 40B, § 22.
The HAC granted the abutters permission to participate in the
proceedings as interveners. In a thoughtful and
thorough decision dated February 10, 2014, the HAC directed
the board to issue a comprehensive permit. The board did not
appeal from the final decision of the HAC; however, the
interveners sought judicial review in the Superior Court
under G. L. c. 30A, § 14. In a decision dated January 2,
2015, acting on cross motions for judgment on the pleadings,
a Superior Court judge ordered the entry of judgment for the
defendants (the developer and the HAC), affirming the
1. Standing. The defendants assert, as they did in
Superior Court, that the interveners are not entitled to
appeal as persons aggrieved by the HAC's decision because
they have not demonstrated a substantial injury to a direct
and certain violation of a private right.
the only parties in the HAC proceedings were the developer,
which had the right to appeal from the denial of its
application, see G. L. c. 40B, § 22, and the board.
"An abutter, or other aggrieved third party, has no
right to appeal to the HAC, and may participate in the
applicant's appeal only with the permission of the
presiding officer in the HAC proceeding."
Taylor v. Board of Appeals of
Lexington, 451 Mass. 270, 275 (2008) . The abutters
sought to intervene under 760 Code Mass. Regs. §
56.06(2)(b) (2008), which allows for intervention by
"any person showing that he or she may be substantially
and specifically affected by the proceedings." The
presiding officer determined that "the interests of all
six businesses are distinct from the interests of the
Board" and were sufficient to grant
participation in the administrative process does not confer
standing to raise a claim in the Superior Court."
Ginther v. Commissioner of Ins.,
427 Mass. 319, 324 (1998) . See Mostyn v.
Department of Envtl. Protection, 8 3 Mass.App.Ct.
788, 792 (2013). Rather, the interveners must demonstrate
that they are persons aggrieved by the HAC decision. General
Laws c. 40B, § 21, inserted by St. 1969, c. 774, §
1, provides that "[a]ny person aggrieved by the issuance
of a comprehensive permit or approval may appeal to the court
as provided in [G. L. c. 40A, § 17]." "While
the words 'person aggrieved' are not to be narrowly
construed, the Legislature has 'intentionally limited the
class of parties with standing to challenge a comprehensive
permit.'" Standerwick v.
Zoning Bd. of Appeals of Andover, 447 Mass. 20, 26
(2006) (citations omitted) (Standerwick).
"Specifically, a 'person aggrieved' . . . must
assert 'a plausible claim of a definite violation of a
private right, a private property interest, or a private
legal interest." Id. at 27, quoting from
Harvard Square Defense Fund, Inc. v. Planning
Bd. of Cambridge, 27 Mass.App.Ct. 491, 493 (1989) .
economic interest "is clearly not a concern that the G.
L. c. 40B regulatory scheme is intended to protect."
Id. at 30. However, the record plainly establishes
that at least one of the interveners is an abutter to the
project site. "As abutters, the plaintiffs are
entitled to a rebuttable presumption that they are
'persons aggrieved' under the
act."Id. at 33. To rebut the
abutting interveners' presumption of standing, the
defendants must support their challenge with evidence to the
contrary. See Id. at 34-35 ("an abutter is
presumed to have standing until the defendant comes forward
with evidence to contradict that presumption");
Barvenik v. Aldermen of Newton, 33
Mass.App.Ct. 129, 131-132 (1992) (defendant must offer
evidence to rebut abutters' presumption of aggrieved
person status). See also 81 Spooner Rd., LLC v.
Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700
(2012) (in zoning context, presumption of standing can be
rebutted by offering evidence "warranting a finding
contrary to the presumed fact").
defendants have offered no evidence to rebut the presumption.
In Superior Court, the defendants challenged the
interveners' standing based only on the mistaken
assertion that they were not abutters. Because "no
evidence was presented . . . that controverted the
plaintiffs' presumption of standing, " the
interveners, as abutters, "were entitled to rely
entirely on their presumed status of being aggrieved
parties." Watros v. Greater Lynn Mental
Health & Retardation Assn., 421 Mass. 106, 111
(1995). Accordingly, we proceed to the merits of the appeal.
HAC decision directing issuance of comprehensive
permit. a. Overview. The act "is designed
to facilitate the development of low and moderate income
housing in communities throughout the Commonwealth."
Zoning Bd. of Appeals of Holliston v. Housing
Appeals Comm., 8 0 Mass.App.Ct. 4 0 6, 413 (2011)
(Holliston). To carry out the legislative purpose,
"the act establishes a streamlined comprehensive
permitting procedure, . . . permitting a developer to file a
single application to the local zoning board of appeals for
construction of low or moderate income housing."
Standerwick, 447 Mass. at 29, citing G. L. c. 40B,
§ 21. See Dennis Hous. Corp. v. Zoning Bd.
of Appeals of Dennis, 439 Mass. 71, 76 (2003) ("act
was intended to remove various obstacles to the development
of affordable housing, including regulatory requirements that
had been utilized by local opponents as a means of thwarting
such development in their towns").
developer may appeal a board's denial of an application
for a comprehensive permit to the HAC. See G. L. c. 40B,
§ 22. "The HAC's review is limited to the issue
whether 'the decision of the board of appeals was
reasonable and consistent with local
at 414, quoting from G. L. c. 40B, § 23, as amended by
St. 1998, c. 161, § 261. See 760 Code Mass. Regs. §
56.07(1) (b) (2008) ("In the case of the denial of a
Comprehensive Permit, the issue shall be whether the decision
of the Board was Consistent with Local Needs"). The
local needs in question concern the availability of
affordable housing. Whether a board's decision is
consistent with local needs refers to whether a town's
"valid planning objections to the proposal, such as