Heard: May 9, 2016.
action commenced in the Superior Court Department on March
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
N. Barbadoro for Hanover Woods, LLC.
F. Bertram, Assistant Attorney General, for Housing Appeals
Present: Agnes, Massing, & Kinder, JJ.
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.
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.
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.
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.
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."
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) . 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
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
"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
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 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,
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.
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 ...