Massachusetts Housing Appeals Committee Declines to Review Project Compliance with Federal and State Environmental Cleanup Standards

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, 2009

The Massachusetts Housing Appeals Committee (“HAC”) has ruled that it has no jurisdiction over state and federal environmental issues when reviewing an affordable housing project where there is no local regulation of such issues.  Green View Realty, LLC v. Zoning Board of Appeals of Holliston, No. 06-16 (HAC, January 12, 2009).

In this case, the developer proposed to build 200 affordable, mixed-income condominium units on a 53-acre site in Holliston.  The Zoning Board of Appeals (the “ZBA”) denied the comprehensive permit in part based on concerns regarding the remediation of the site.  The HAC addressed numerous issues in its decision ordering the ZBA to issue the requested comprehensive permit, including those related to the cleanup of contamination on the site stemming from illegal, unsupervised dumping that occurred on the property beginning in the 1960s. 

Both the U.S. Environmental Protection Agency and the Massachusetts Department of Environmental Protection had investigated and assessed contamination at the site; more than 300 drums, thousands of tires, debris, and more than 70 tons of contaminated soil had been removed.  The developer proposed to complete remediation of the site in conjunction with the construction of the housing project, transporting hazardous and recyclable materials off site, monitoring and treating groundwater as necessary, and consolidating non-hazardous waste and existing fill into a smaller sealed and capped disposal area.

Because considerable further assessment and design remained before a “permanent solution” could be achieved, the ZBA asserted the developer had failed to satisfy its burden of establishing a prima facie case that its proposal complied with applicable environmental standards.  The HAC noted that, in fact, the work already done on the site, which included a conceptual remedial plan, would be sufficient to satisfy this burden.  However, the HAC concluded that it need not reach the question of whether the developer established a prima facie case as to the remediation issues because the Holliston zoning bylaw does not regulate the remediation activity proposed.

The HAC noted that under the structure of the comprehensive permit law, its focus is on local concerns and there is nothing in Massachusetts General Laws, Chapter 40B, to indicate it should consider environmental issues raised under federal and state law.  In fact, the HAC stated it has no authority to hear a dispute as to whether a developer is adhering to state or federal law.  Only where a municipality has distinct local regulations that parallel state law may issues raised under local requirements may be considered. 

 The ZBA asserted its local bylaw did regulate consolidation of a landfill and in fact prohibited such activities on the site.  The HAC reviewed the bylaw provisions cited by the ZBA in detail before concluding that the bylaw intended to regulate new landfills and not remediation activities. 

Because consolidation of the landfill, remediation and other activities were not regulated under the local bylaw, the HAC concluded they were not properly at issue and therefore not a basis for denial of the comprehensive permit.

For further information, contact Brian C. Levey at blevey@bdlaw.com or Krista L. Hawley at khawley@bdlaw.com.