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Eisai, Inc. v. Housing Appeals Committee

Appeals Court of Massachusetts, Suffolk

June 20, 2016

EISAI, INC., & others[1]

          Heard: March 8, 2016

         Civil action commenced in the Superior Court Department on March 11, 2014.

         The case was heard by Edward P. Leibensperger, J., on motions for judgment on the pleadings.

          Christopher Robertson (Jonathan D. Witten with him) for the plaintiffs.

          Suleyken D. Walker for Housing Appeals Committee. Kevin P. O'Flaherty for Hanover R.S. Limited Partnership.

          Present: Hanlon, Sullivan, & Massing, JJ.

          MASSING, J.

         This 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.

         The 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.


         On 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.[3]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.[4] 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.

         At the 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.[5] 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 uses."

         The developer appealed to the HAC under G. L. c. 40B, § 22. The HAC granted the abutters permission to participate in the proceedings as interveners.[6] 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 HAC's decision.

         Discussion. 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.

         Initially, 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 intervention.[7]

         "Mere 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) .

         A mere 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.[8] "As abutters, the plaintiffs are entitled to a rebuttable presumption that they are 'persons aggrieved' under the act."[9]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").

         The 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.

         2. 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").

         A developer may appeal a board's denial of an application for a comprehensive permit to the HAC.[10] 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 needs.'"[11]Holliston, supra 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 health, ...

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