Score One For Affordable Housing: Chapter 40B Trumps Vague Local Environmental Concerns

In an interesting decision issued today, in Zoning Board of Appeals of Holliston v. Housing Appeals Committee, the Massachusetts Appeals Court held that a local zoning board of appeals cannot use vague local environmental concerns as a basis for denying a comprehensive permit under the Massachusetts affordable housing statute, Chapter 40B. As those practicing in this area know, Chapter 40B consolidates all local permitting before the zoning board of appeals. The board can deny permits based on local needs, but there is a presumption that the need for affordable housing trumps local needs if the stock of affordable housing is less than 10% of total housing in the municipality.

There is no dispute that the stock of affordable housing was less than 10% in Holliston. Nonetheless, the ZBA in Holliston denied on the project, asserting environmental concerns about existing contamination, wetlands protection, and stormwater. The essence of the case was that, as the Court noted, plans submitted to the ZBA are generally preliminary. Details get filled in later. Here, the developer basically said that it would comply with Chapter 21E and the Massachusetts Contingency Plan and obtain a condition of no significant risk, and that it would comply with the Wetlands Protection Act and stormwater requirements and subject its detailed plans to review by the local Conservation Commission and DEP at a later date. The Town said that this was not sufficient. 

Judge Kafker (a former Foley associate, I feel compelled to note) made short work of the Board’s arguments. With respect to the contamination, the Court noted that there in fact is no local by-law that even purports to regulate the scope of remedial work. Since the ZBA review is limited to local concerns, it essentially was without jurisdiction to review the remedial plans. 

With respect to wetlands and stormwater, Holliston has a local bylaw and regulations that are more stringent than the state requirements. However, as the Court noted, the Board “failed to demonstrate that the safeguards the local by-law provides to wetlands interests over and above the protections afforded by the WPA outweigh the community’s need for low or moderate income housing.” Noting that Chapter 40B “curtails” local authority, the Court provided the coup de grace:

It is not enough to simply point out a lack of compliance with local regulations or complain that the local board’s power has been taken away. The board must show that the impacts on the local wetlands outweigh the local need for affordable housing.

The notion that 40B trumps local by-laws is not new. However, this case is the most comprehensive analysis that I have seen regarding the interplay between Chapter 40B and local environmental regulations. The short answer? Local environmental bylaws and regulations do not justify a NIMBY denial of affordable housing projects.

One thought on “Score One For Affordable Housing: Chapter 40B Trumps Vague Local Environmental Concerns

  1. Seth, what makes you assume that the Town’s opposition to this project was motivated by NIMBYism? From what I read in the HAC’s decision, and the Appeals Court’s decision, the Town was raising legitimate concerns that the project did not meet state stormwater management standards, and that the plans offered by the developer were so incomplete that they prevented the ZBA from determining whether they complied with other local and state environmental regulations. In the past, courts have held that local zoning decisions cannot leave substantive issues open for subsequent approvals outside the public hearing. I think the Town’s position reflected that precedent. This decision alters that rule for 40B projects (essenially requiring boards to condition permits on getting subsequent approvals), which will certainly guide ZBA decisionmaking in the future.
    I also don’t see how you characterize the Town’s environmental concerns as “vague?” You can certainly argue that the Town did not meet its burden of showing that enforcing the local wetland bylaw did not outweigh the need for housing, but I don’t see how this makes the objection “vague.” From my reading, the objection was insufficient details on plans (which had previously been recognized as a legitimate ground for denial – Tetiquet River Village, Inc. v. Raynham ZBA, HAC No. 88-31 (Mar. 20, 1991)) and noncompliance with state stormwater standards.
    I didn’t see any evidence in the record that these concerns were a pretext for NIMBYism; rather, it seemed that the Town was simply trying to protect the future residents of the project and potentially abutters from inadequate engineering and design.

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