ZBA’s Broad Powers under Chapter 40B Do Not Include Alteration of Property RightsPosted: February 2, 2018
by Kevin O’Flaherty, Alana Rusin, and David Zucker
On November 13, 2017, the Supreme Judicial Court (“SJC”) held in 135 Wells Avenue, LLC v. Housing Appeals Committee, 478 Mass 346 (2017) (“135 Wells”), that, although a local zoning board of appeals (“ZBA”) has broad powers to grant “permits or approvals” under G.L. c. 40B, it does not have the authority to modify municipal property rights, including restrictive covenants.
Sections 20 to 23 of G.L. c. 40B (“Chapter 40B”), the Anti-Snob Zoning Act, were enacted in 1969 to “ensure that the local municipalities did not make use of their zoning powers to ‘exclude low and moderate income groups.’” 135 Wells, supra, at 351. Chapter 40B allows developers of projects that contain at least 25% “affordable housing” (defined as housing for those earning 80% or less of the area median income) to apply for all local approvals in a single “comprehensive permit,” and gives the ZBA the “authority to . . . override local requirements or regulations, and to issue ‘permits or approvals’” for all aspects of the development. Id. The override provision empowers ZBAs to approve projects that are higher, denser, or larger than otherwise allowable under existing regulations, and even to allow residential uses in non-residential zones. See, e.g., Eisai, Inc. et al. v. Housing Appeals Committee & Hanover R.S. LP, 89 Mass. App. Ct. 604 (2016). When a town is below certain Chapter 40B thresholds (e.g., less than 10% of the town’s housing stock is affordable), it is very challenging for a town to deny a comprehensive permit. See G.L. c. 40B, § 20; 760 C.M.R. § 56.03(1); DHCD Guidelines (rev. Dec. 2014). Finally, an applicant for a comprehensive permit aggrieved by a ZBA’s decision may appeal to the Housing Appeals Committee (“HAC”) in the Department of Housing and Community Development. G.L. c. 40B, § 22.
In May 2014, 135 Wells Avenue, LLC applied for a comprehensive permit to construct a 334-unit 40B development on land in Newton. The site was zoned for limited manufacturing use and also was subject to restrictive covenants granted to Newton that, among other things, prohibited residential use and required a portion of the site to remain open space. The developer concurrently filed with Newton’s legislative body (“Aldermen”) a petition to amend the restrictive covenants to allow residential use and to permit construction in the open space area. The petition was denied in November 2014. The ZBA also denied the developer’s comprehensive permit application on the grounds that Chapter 40B does not allow the ZBA to amend or waive restrictive covenants that constitute city-owned interests in land which can be amended or released only by the Aldermen.
In December 2014, the developer appealed the ZBA’s decision to the HAC; a year later, the HAC affirmed the ZBA’s decision, holding that the restriction and requested amendments are not within the sort of “conditions or regulations” or “permit or approvals” that are subject to Chapter 40B. The developer then sought judicial review by the Land Court. In August 2016, the Land Court determined that Chapter 40B does not allow either the ZBA or the HAC to require the city to amend the deed restriction to allow for residential use. The Land Court also held that the fact that the site was never used for limited manufacturing as envisioned when the property interests were granted did not change the validity of those interests. The developer sought direct appellate review. The SJC affirmed the Land Court’s rulings and reasoning in full.
The key to understanding 135 Wells is to recognize that, although Chapter 40B grants a ZBA broad authority to grant “permits or approvals,” it does not include “authority . . . to order the city to relinquish its property interest.” 135 Wells, supra, at 348. Also key is the fact that the SJC had previously decided that the deed restrictions at issue are property interests of Newton, id. at 353 (citing to Sylvania Elec. Prods. Inc. v. Newton, 344 Mass. 428, 430 (1962)), and that “both affirmative and negative easements [such as restrictive covenants] are to be treated equally” as property interests. Id. at 357.
In reaching this conclusion, the SJC rejected the developer-appellant’s attempt to distinguish this case from Zoning Bd. of Appeals of Groton v. Housing Appeals Committee, 451 Mass. 35 (2008) (“Groton”), in which the SJC reversed a decision that “order[ed Groton] to grant an easement over town land pursuant to the board’s power to grant permits or approvals under Chapter 40B” on the basis that there is a “fundamental distinction between the disposition or creation of a property right and the allowance of a permit or approval.” 135 Wells at 356 (citing Groton, supra, at 40-41). In 135 Wells, the SJC extended Groton’s logic, holding that the fundamental distinction between a property right and a permit or approval applies equally to affirmative easements (at issue in Groton) as it does to restrictive covenants (at issue in 135 Wells). In doing so, the SJC rejected the developer’s attempt to characterize the restrictive covenants at issue as the “functional equivalent of a ‘permit [ ] or approval[ ]’” that the ZBA or HAC could override under Chapter 40B. Id. at 353. The SJC distinguished the Aldermen’s allowance of prior amendments to the same restrictive covenant as acts of a legislative body instead of a local permit authority, and explained that Chapter 40B does not authorize a ZBA to modify restrictive covenants because these are interests in land, not land use permits or approvals. Id.
135 Wells addressed a heretofore unsettled question under Chapter 40B: if a project is on land subject to a deed restriction held by a municipality, may a local ZBA modify or eliminate the restrictive covenant? In 135 Wells, the SJC held that Chapter 40B does not give a ZBA this power. Accordingly, developers seeking relief from deed restrictions running in favor of a municipality must seek their removal or modification from the local municipal legislative body.
Kevin P. O’Flaherty is a Director at Goulston & Storrs PC and a member of the firm’s litigation group. The focus of his practice is real estate litigation of all types. Over the course of his 25-year career he has represented private developers, individuals, institutions and public agencies in zoning and permitting matters, eminent domain cases, commercial landlord/tenant disputes, purchase and sale cases and a wide array of other real estate related matters. Alana Rusin and David Zucker are Associates at Goulston & Storrs PC where they practice real estate litigation.