Comprehensive Permit Appeal Procedures Clarified by SJC

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

The Supreme Judicial Court has held that a developer’s appeal to the Housing Appeals Committee (“HAC”) of a Comprehensive Permit under Chapter 40B does not preclude a separate abutter appeal to Superior Court or Land Court under G.L. c. 40B, § 21.  The Court also set out the procedural path for parties and courts to follow in the case of such dueling appeals. 

In Taylor  v. Board of Appeals of Lexington, SJC-09993 (Marshall, C.J., April 24, 2008), a developer appealed the approval of a comprehensive permit application to the HAC pursuant to G.L. c. 40B, § 22, asserting conditions imposed rendered the project uneconomic (“HAC Appeal”).  Abutters appealed the same decision to the Superior Court under G.L. c. 40B, § 21, which provides that aggrieved persons may pursue an appeal under the same procedures and standards provided in c. 40A, § 17.  After proceedings before HAC, it ordered the issuance of an amended comprehensive permit (“HAC Decision”).  The abutters then appealed the HAC Decision pursuant c. 40B, § 22, which authorizes review of an HAC decision under G.L. c. 30A, the State Administrative Procedure Act.  The developer argued that the abutters’ participation in the HAC Appeal and subsequent ability to challenge that decision in court under Chapter 30A were sufficient to protect their interests and should foreclose further appeals.  The Court disagreed.

The Court preserved the right of abutters to challenge the original decision of the Board of Appeals in Superior Court and rejected the arguments “that participation in the HAC appeal is sufficient to protect all of the interests of all persons aggrieved” and that, as a matter of law, the filing of the developer’s appeal to the HAC “depriv[es]” abutters of their separate appeal.  The Court cited the different standards and scopes of judicial review governing Chapter 30A appeals (deferential review based on administrative record) and Chapter 40B, § 21, appeals (less deference based on de novo proceeding) as justification for maintaining this avenue of appeal. Having protected the abutters c. 40B appellate rights, the Court nonetheless found that their Superior Court appeal was moot as a result of the HAC’s issuance of an amended permit. The abutters who had intervened in the HAC proceedings had “an opportunity to have any remaining concerns about the project addressed” in the appeal of the HAC Decision to Superior Court.

In footnote 4, the SJC announced a clear procedural path to be followed in the case of multiple appeals. The Court “henceforth require[d] that, once an applicant for a comprehensive permit appeals from a board’s decision to the housing appeals committee (HAC) under c. 40B, § 22, any appeal pursuant to G.L. c. 40B, § 21, be automatically stayed pending the outcome of the appeal to the HAC’.”  After the HAC decision becomes final, the applicant must move to dismiss the § 21 appeal as moot if the HAC orders the issuance of a new comprehensive permit or to lift the stay if the HAC upholds the local board’s decision.

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