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Zoning Board of Appeals of Hanover v. Housing Appeals Committee

Appeals Court of Massachusetts, Plymouth

August 29, 2016

ZONING BOARD OF APPEALS OF HANOVER
v.
HOUSING APPEALS COMMITTEE & another.[1]

          Heard: May 9, 2016.

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

         The case was heard by William F. Sullivan, J., on a motion for judgment on the pleadings.

          Jonathan D. Witten (Barbara M. Huggins with him) for the plaintiff.

          Paul N. Barbadoro for Hanover Woods, LLC.

          Bryan F. Bertram, Assistant Attorney General, for Housing Appeals Committee.

          Present: Agnes, Massing, & Kinder, JJ.

          MASSING, J.

         Defendant Hanover Woods, LLC (developer), filed an application with the plaintiff zoning board of appeals of Hanover (board) for a comprehensive permit to build a 152-unit mixed-income housing project. Considering the board's filing fee to be unreasonable, however, the developer paid only what it unilaterally determined to be a reasonable filing fee. Deeming the application incomplete, the board did not accept it for filing. By the time the developer paid the remainder of the fee, six weeks later, the town had qualified for a safe harbor under the Comprehensive Permit Act, G. L. c. 40B, §§ 20-23 (act), effectively giving the board unreviewable discretion to deny the developer's permit.

         Nonetheless, the defendant Housing Appeals Committee (HAC) ultimately ordered the board to issue a comprehensive permit to the developer for a 200-unit project. The board appeals from a judgment of the Superior Court affirming the HAC's order. Because we conclude that the HAC erred in determining that the developer's application was complete on the date of its incomplete submission, rather than on the date the filing fee was paid in full, we reverse.

         Background.

         On October 22, 2009, the developer filed an application for a comprehensive permit for a project to be called Woodland Village, consisting of 152 units to be offered for sale, as well as parking spaces and other site improvements on a twenty-four acre parcel of land in Hanover (town). Thirty-eight of the units, or twenty-five percent, were designated to be affordable units. Under the board's fee schedule, the filing fee for a project of that size was $250 per housing unit, or $38, 000.

         Accompanying its application, the developer included a check for $8, 500 with a letter of explanation signed by John J. Sullivan, the developer's manager. In his letter, Sullivan asserted that the $38, 000 fee was "inconsistent" with the act and the applicable regulations, which require reasonable fees. Sullivan stated, "The applicant considers this fee unreasonable." He claimed that a reasonable filing fee would be $2, 500, based on "the fee imposed on a traditional project pending before the planning board." He added "a $6, 000 initial consultant review deposit, " attaching a number of conditions to the board's use of the deposit.

         In a letter dated November 3, 2009, the board informed the developer that its application was incomplete and would not be accepted for filing until the board received the required fee. The developer responded in a letter dated December 3, 2009. Asserting that it had filed "a complete application, which included an appropriate filing fee, " but that the board's position left it "in the untenable position of either appealing the [b]oard's denial of its application or paying an additional $30, 000 [sic] to allow the merits of its proposal to be heard, " the developer "determined to advance the [b]oard's fee under protest." It enclosed a check for $29, 500, reserving its rights "with respect to any future challenge of [the board's] comprehensive permit filing fee or with respect to the completeness of [the developer's] application to the [b]oard filed on October 22, 2009." The developer added, "Having established an October 22, 2009, filing date, [it] is willing to accommodate the [b]oard by voluntarily extending the deadline for the [b]oard to open a public hearing on this matter until thirty days from the date of this letter."

         Meanwhile, on October 29, 2009, the board had approved a comprehensive permit for an unrelated, sixty-six unit affordable housing project called Barstow Village. All of the units were to be made available to income-qualified seniors at below-market rates. On December 1, 2009, as a result of the Barstow Village approval, the Department of Housing and Community Development (DHCD) certified that the town was in compliance with its "Housing Production Plan" under 760 Code Mass. Regs. § 56.03(4) (f) (2008) .[2] The certification was made effective as of the date of the Barstow Village approval, October 29, 2009, for a two-year period ending October 28, 2011. The certification of compliance established a regulatory safe harbor, effectively making any decision by the board to deny a comprehensive permit application made during that period unreviewable by the HAC. See discussion infra.

         The board informed the developer of the certification and the resulting safe harbor in a letter dated December 3, 2009 (which the developer did not receive until after it mailed its own December 3 letter discussed above). The board explained,

"If or when you decide to submit a complete Comprehensive Permit application for 'Woodland Village' to this board for acceptance (see our letter of November 3rd, 2009), please be advised that the board may -- at its discretion, and upon review of your project -- consider that a denial of the permit or the imposition of conditions or requirements would be 'Consistent with Local Needs.'"

         On December 17, 2009, the developer filed an interlocutory appeal with the HAC challenging the reasonableness of the filing fee and the board's intention to consider the developer's application with the benefit of the safe harbor protection. See 760 Code Mass. Regs. § 56.03(8)(c). In a decision dated June 21, 2010, a three-member panel of the HAC[3] found the $38, 000 filing fee to be reasonable. However, the panel further determined that the board could not invoke the safe harbor protection because the developer's application, though lacking the full filing fee, should have been considered filed as of October 22, 2009.

         Complying with the HAC's interlocutory decision, the board then proceeded on the developer's application, holding public hearings over fourteen sessions concluding on July 19, 2011. On September 18, 2011, the board granted the developer a comprehensive permit for the 152-unit, for-sale project, subject to a number of conditions. Following the board's approval, the developer filed an appeal with the HAC challenging certain conditions relating to the site.

         While the appeal was pending, on December 9, 2011, the developer filed a "Notice of Change in Applicant's Proposal" with the HAC. See 760 Code Mass. Regs. § 56.07(4) (a). It requested, among other changes, an increase in the number of units from 152 to 200, and a change in the ownership structure of the development from for-sale condominiums to rental units. The HAC presiding officer found that the ...


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