SJC Rules HAC Cannot Compel a Grant of Town Easement as Condition of Comprehensive Permit

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, 2008

The Supreme Judicial Court has held that G.L. c. 40B, §§ 20-23, does not empower the Housing Appeals Committee (“HAC”) “to order the conveyance of an easement over land abutting the project site of a proposed affordable housing development” as a condition on a grant of a Comprehensive Permit.  Zoning Bd. of Appeals of Groton v. HAC, SJC-10028 (Greaney, J., March 31, 2008).

In this case, the Groton Zoning Board of Appeals (“ZBA”) denied an application for a Comprehensive Permit for a 44-unit condominium project based in part on safety issues.  Specifically, the proposed means of access provided inadequate stopping sight distance on a busy, two-lane state highway.  The HAC determined, however, that the hazard could be eliminated by regrading and clearing vegetation on a portion of the Town’s adjacent property controlled by the Groton Electric Light Department.  The HAC acknowledged the conveyance of an easement would require the vote of town meeting.  Nonetheless, relying on Maynard v. Housing Appeals Committee, 370 Mass. 64 (1976), where the Court found that a Town Meeting vote to authorize a sewer extension was a “requirement or regulation” which the HAC could override, the HAC concluded it had the authority under c. 40B, § 21, to order the conveyance of the easement.

The SJC disagreed and ruled the HAC-mandated conveyance of the sight line easement exceeded its authority under Chapter 40B.  First and foremost, the Court held that “the phrase ‘requirements and regulations’ in §  20 describes ‘limitations on an owner’s use of his property,’ not to the use of someone else’s property.”  Nor does a conveyance compelled by the HAC amount to a “permit or approval” which the HAC can mandate under c. 40B.  In its ruling, the SJC explained that the trial court misapplied Maynard, supra, which “did not involve, nor authorize, the transfer of an interest in municipal land....”  Second, the Court held that the HAC could not contravene “State law governing the disposition, or transfer, of land, or interests in land, owned by municipalities.”  See, G.L. c. 40, §§ 3, 15A.  The SJC left itself room to decide similar issues on a case-by-case basis by concluding that, “To be sure, in enacting G.L. c. 40B, the Legislature indicated that, in some circumstances, compliance with locally imposed barriers may need to yield to the regional need for affordable housing, but this legislative judgment cannot be stretched to empower the committee to act as the legislative body of a municipality for purposes of land transfers.” 

For further information, please contact Brian Levey at blevey@bdlaw.com or Marc Goldstein at mgoldstein@bdlaw.com.