THE ANTI-SNOB ZONING LAW: THE EFFECTIVENESS OF CHAPTER 774
IN GETTING AFFORDABLE HOUSING BUILT
By
Cynthia D. Lacasse
B.A., Middlebury College, 1982
SUBMITTED IN PARTIAL FULFILLMENT
OF THE REQUIREMENTS FOR THE
DEGREE OF
MASTER OF CITY PLANNING
at the
MASSACHUSETTS INSTITUTE OF TECHNOLOGY
June 1987
c 1987 Cynthia D. Lacasse
The author hereby grants to M.I.T. permission to reproduce and
to distribute copies of this thesis document in whole or in
part.
Signature of Author:
Cyn~ia D. Lacasre
Departent of Urban Studies and Planning
Mav 18, 1987
Certified by:
Phillip L. Clay
As: ociate Professor4 D.U.S.P.
Thesis Advisor
Accepted by:
r
Philli
Master of City Planning
MASSACHUSETTS INSTITUTE
OF TECHNLOGY
JUN 0 8 1981
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THE ANTI-SNOB ZONING LAW: THE EFFECTIVENESS OF CHAPTER 774
IN GETTING AFFORDABLE HOUSING BUILT
by
CYNTHIA DIANE LACASSE
Submitted to the Department of Urban Studies
and Planning on May 19, 1987 in partial
fulfillment of the requirements for the
Degree of Master of City Planning
ABSTRACT
Massachusetts' Chapter 774 of the Acts of 1969 allows local
Zoning Boards of Appeals to issue a comprehensive permit for low
and moderate income housing developments proposed by public, nonThe Board has the
profit, or limited dividend organizations.
power to override local zoning regulations. A Board is obligated
of the community's housing
to issue a permit if fewer than 10%
units are subsidized low or moderate income units, and if the
proposed housing development does not threaten health and safety.
If a local Board denies a comprehensive permit, the developer may
appeal to the quasi-judicial state Housing Appeals Committee.
The Committee hears the case and can sustain the local decision
or overrule it and order the local Board to issue a permit.
The research was undertaken to determine the effectiveness of
Chapter 774 in getting affordable housing built. The thesis
concludes that the law has been effective and has resulted in the
construction of 205 low and moderate income housing projects
comprising 11,266 units. Of the applications to local Boards of
resulted in built projects. According to the data
Appeals, 70%
collected, the likelihood of a project being built is greatest
when the comprehensive permit is granted on the local level and
decreases as the appeals process continues.
Four Chapter 774 cases were studied
to determine whether
developers withdraw permit appeals to the state Housing Appeals
Committee because of the law itself or the appeals process it
mandates.
Four additional cases were studied to determine
conditions under
which negotiated
settlements between the
developer and the community are possible.
Recommendations are
made concerning how negotiated settlements can be encouraged.
TABLE OF CONTENTS
1. Introduction: Chapter 774 and How it Works.............. 4
Low and Moderate Income Housing in Massachusetts; How the
Comprehensive Permit Process Works; The Housing Appeals
Committee's Authority; The Permitting Process Timetable;
Research and Literature on Chapter 774.
2. Interpreting the Law................................... 16
Issues Addressed by the Courts: Landmark Decisions;
Issues Addressed by the Housing Appeals Committee; Summary.
3. Impact of the Law: The Comprehensive Permit Process
and Its Effectiveness in Getting Projects Built........ 25
Permits Granted; Cases Appealed; The Law's Success:
Projects Built; Decision Points and Projects Built;
Summary.
4. Withdrawals............................................
Barnstable; Bridgewater; Canton; Mashpee; Summary.
38
46
5. Settlements...........................
North Attleboro; Sharon; Marshfield; Rockport; When are
Negotiated Settlements Possible?
6. Conclusion.............. ............................... 62
The Imperfect Nature of the Law; Timing Issues; Getting
Projects Built: Negotiating Sooner and More Often;
Recommendations.
Methodology......
69
Bibliography................
70
Appendix:
CHAPTER 774 AND HOW IT WORKS
CHAPTER 1. INTRODUCTION:
Chapter 774
of the
Acts of
which local
Zoning
Boards
restrictive
zoning
1969 established standards under
of
can
Appeals
ordinances
override overly
and
by-laws
and
grant
a
comprehensive permit for the construction of subsidized low or
moderate income
Since the law's enactment in 1969,
housing.
almost 300 public, non-profit, and limited-dividend developers
have
for
applied
comprehensive
permits
to
build
low and
moderate income housing projects in communities throughout the
Commonwealth
(Housing
Committee study, 1986).
Appeals
thesis attempts to evaluate
the effectiveness
of the
This
law in
getting housing built.
1.1 Low and Moderate Income Housing in Massachusetts
Massachusetts has
a history
the years
cities and
policies.
In many
of
exclusionary
development
to
lot zoning.
As a
have
purposely
towns have
local autonomy.
created their
Over
own land use
cases, these policies have taken the form
zoning
single
result
or
of strong
regulations
such
as
restricting
family housing, and instituting large
of
these
regulations, communities
unintentionally excluded low and moderate
income housing development within
their boundaries.
In more
recent years, as they face increasing development pressure,
have defended these policies as a mechanism
community leaders
for controlling and preventing unwanted growth.
Within this context of local autonomy, the Massachusetts state
been committed to providing affordable housing
government has
The Executive Office
to all the citizens of the Commonwealth.
of
Communities
and
Development
programs in which the agency works
provide housing
for individuals
provide
667, and 689 programs
and handicapped housing.
The
provides
(MHFA)
housing
Massachusetts
low
their developments.
two programs
that
combine
subsidy certificates.
since built many
programs.
interest
authorities or
In
Housing Partnership
private
moderate income
More recently, EOCD introduced
low
units
newest
interest
loans
with rental
using
the
SHARP
and TELLER
state program, the Homeownership
by the Massachusetts
(MHP), communities and developers team up
housing units
income Massachusetts
to
Private and non-profit developers have
rental
the
Housing Finance
loans
low and
Opportunities Program (HOP) administered
to build
Chapter 705,
and families.
developers who agree to include some
units in
governments to
with local
local
many
agencies with funds to construct family, elderly,
other local
Agency
administers
(EOCD)
to be
residents.
purchased by
low and moderate
Chapter 774 is a vehicle by
which those wishing to develop low and moderate income housing
under all
these programs
can bypass overly restrictive local
regulations to get their projects built.
1.2 How the Comprehensive Permit Process Works'
Chapter 774 was voted into law in 1969.
Engler, it
was passed
earlier
that
shoved down their
(1972, p. 72).
to Robert
by a coalition of urban legislators in
"Boston
throat
racial imbalance
bill four
legislators.. .felt..
was being
of a
retaliation for the passage
years
According
by
suburban legislators."
liberal
The impact of the racial imbalance bill, which
made it illegal to have more than 50 percent nonwhite children
in a
classroom, was
liberals who were in
Chapter 774
felt primarily
favor of
"which attempted
Rule" so jealously guarded
in Boston.
this proposal
The suburban
did not support
to drive a wedge into the "Home
by their
constituents."
(1972,
p.
72). Engler quoted a newspaper article:
One of the most embarrassing sights of the legislative
session was the spectacle of the
so-called "liberal"
legislators, who strongly advocated the racial imbalance
law, casting their votes against a bill which would really
do something about the problem (1972, p. 73).
Thirty-seven
legislators,
representatives, who had voted
bill voted
for the
of
many
them
against
zoning bill,
the
conservative urban
racial imbalance
which passed
by a two-vote
margin.
'This paper discusses comprehensive permits issued under
No conclusions about the nature or
the Chapter 774 statute.
effects of comprehensive permits issued under other statutes
or regulations should be drawn based on statements written
here.
providing for the
low and moderate income housing in cities and
construction of
towns in which local
(1969, p.
"an act
law as
describes the
The statute
restrictions hamper
law is commonly known as "the Anti-Snob
The
1).
such construction."
Zoning Law,"
"the Massachusetts Zoning Appeals Law,"
"Ten Percent
Rule."
and the
An analysis prepared by the Metropolitan
Area Planning Council in
1974 describes
intent as
the law's
follows:
The intent of Chapter 774 is to stimulate the construction
of housing for low and moderate income households in the
The law seeks to accomplish its intent by
suburbs.
providing relief from local zoning, building, and other
codes if such codes are determined to be an unreasonable
impediment to the development of new housing (1974, p. 2).
According
the
to
organization, or
a
law,
a limited-dividend
organization planning to
build subsidized low or moderate income
Zoning Board
the local
permit.
The Board
officials, hold
ZBA can take one
and
application
application with
application.
of Appeals
must notify
three
issue
housing may
apply to
(ZBA) for a comprehensive
other local
boards and town
hearing, and issue a decision.
a public
of
non-profit
a
agency,
public
forms
of
action:
The
approve the
the comprehensive permit; approve the
conditions
and
requirements;
or
deny the
2
When the community is in favor of granting a developer a
comprehensive permit and the local ZBA does so, it is commonly
When the community opposes
known as a "friendly 774."
granting a permit and the ZBA denies, it is known as a
"hostile 774."
2
may deny
The Board
the application only under one or more of
units
in
town
or
city
the
used
subsidized
for
low or
equal at least one and one
already
housing
income
already subsidized low or
are
moderate income units; 2) sites
moderate
of existing housing
1) 10% or more
the following conditions:
half percent of all land zoned for residential, commercial, or
application would result in
3) the
or
industrial purposes;
income housing
and moderate
the construction of low
on more
than 0.3 percent of the total land, or ten acres, whichever is
permit in
order to
ZBA
The
larger, in any calendar year.
may
also
deny the
protect health and safety, promote better
site and building design, or
needs outweigh
regional and
income housing
and
the
preserve
local need
requirements
open
space,
for low and moderate
and
regulations apply
equally to subsidized and non-subsidized housing.
issue the permit subject to
conditions
if these
if
the
The ZBA may
developer is
still able to build and operate without financial loss, or, in
the
case
reasonable
of
a
return
limited
within
dividend
the
organization,
realize
a
limits set by the subsidizing
agency.
1.3 The Housing Appeals Committee's Authority
If a permit is denied
render the
or
issued
with
conditions
project economically unfeasible,
that will
the developer may
appeal
a
to
five-person
Appeals
Housing
(HAC)
Committee
appointed each year by the Governor and the Secretary of EOCD.
The HAC must include one employee of EOCD, one City Councilor,
and
one
members
developer
and
and
differences.
staff
an appeal is filed with the HAC,
When
Selectman.
to
work
the
local
The
HAC
encourage
municipality
legal
counsel
parties
the
--
to
--
settle their
as an
serves
often
the
informal facilitator or mediator during the negotiations.
If a
The
settlement cannot
Committee
community and
reviews
be reached,
all
the developer
the
evidence
permit.
The
by
the
order the
ZBA to issue
is limited to sustaining or
power
HAC's
provided
and can rule to uphold the local
decision or overrule the decision and
the
hears the case.
the HAC
overruling the ZBA decision; it does
not have
the same right
as the ZBA to apply conditions to its decision.
1.4 The Permitting Process Timetable
The
statute
specifies
the
approval under Chapter 774.
within
30
days
of
It must
the
termination.
receiving a permit
render its
subject
for filing for local
The local ZBA must hold a hearing
receiving
application.
hearing
procedures
An
to
a
comprehensive
decision within
permit
40 days of
applicant denied a permit or
conditions
he
or
she deems
unreasonable
has
20
appeal to the state
Housing Appeals
days
Housing
after
the
Appeals
Committee
(HAC).
The
Committee must then hold a series of hearings
in which both parties present their
only need
local ZBA decision to
cases.
While some cases
one day of hearing after which the HAC can render a
decision, others may
schedule and
need
Because
of
the HAC's
other constraints, hearing days are often two or
three or more weeks apart.
must hold
several.
the first
According to the statute,
hearing within
the HAC
20 days of receiving the
applicant's statement.
After all hearings are
completed,
render a written decision.
the
HAC
has
30
If the HAC overrules the local ZBA
decision, the ZBA must grant a comprehensive permit
days of
the HAC
ruling.
days to
within 30
This entire process is illustrated
graphically below:
APPLICATION --- (30
ZBA
DECISION
days)---> PUBLIC
--- (20
HEARING --- (40 days)--->
days)---> APPEAL FILED --- (20 days)--->
FIRST HAC HEARING --- (unknown number
HEARING
--- (30
days)--->
HAC
of
days)--->
LAST HAC
DECISION --- (30 days)---> ZBA
GRANTS PERMIT
In sum, when a developer applies
Appeals for
a comprehensive
to a
local Zoning
permit, the
Board of
board may grant the
permit, grant the permit subject to conditions, or deny the
CHART 1 - Comprehensive Permit Process Decision Points
App
n
Local Decision
Appeal. Process
Buil
F:" E1 t
Not Full
ct Bu:
H
uUOt
i t.
tMhdr auI
--
!4& it
-Pui~t
- -Ihdra
et& PJ:It
L
CNutPul
'~i
permit.
If the permit is
denied or
granted with conditions,
may choose
to appeal
to the
the developer
appeals process the permit
settled;
be
may
application
neither of these two options is
if
HAC.
During the
withdrawn or
exercised,
the HAC
hears the case and either sustains or overturns the permit
Finally, projects granted permits at the local or
denial.
state level are
built.
not
or
built
either
This entire
process is illustrated graphically in Chart 1.
1.5 Research and Literature on Chapter 774
Surprisingly little has been written during the past ten years
In
774.
about the effects of Chapter
1972,
Robert Engler
wrote that twelve developers had appealed to the state Housing
overturned denials
cases
were
committee
The
Committee.
Appeals
in two
appealed
to
of the
the
had
heard
arguments and
Both these
twelve cases.
State
Superior
Court.
He
concludes:
In sum, no housing has actually been built as a result of
Its primary
the enactment of Chapter 774 two years ago.
effect thus far probably has been educational, i.e., forcing
many towns to confront the issue of the need for low and
moderate income housing throughout the state, the
region, and within their own confines (1972, p. 77).
Engler goes
to on
been ineffective.
that the
are
not
explain why,
in his
opinion, the law had
He states that the law has vague standards,
terms "reasonable" and "consistent with local needs"
sufficiently
defined.
12
He
also
states
that the
under
procedures
the
which
addition,
the vague
to extensive
open
door
from
developers
discouraged
and
intervention",
judicial
the
"leave
act
the
of
standards
In
defined.
operate were not clearly
Appeals Committee must
Housing
applying for comprehensive permits.
The
Metropolitan
(MAPC) presented a
Council
Planning
Area
as part of
series of three "interpretive analyses" of the law
Information Series on housing.
its Planning
of
the
(1974), provides an excellent summary
Years Later"
774: Four
actions
HAC
law,
by
raised
consistently
report, entitled "Chapter
The last MAPC
was written in 1969.
The first report
to
date,
local
planning
and
communities.
It explains how
lists the
community eligibility guidelines are calculated and
number
of
housing
units
and
issues
units
subsidized
communities in the council district in that year.
in
the
The report
points out that as of August, 1974, only four MAPC communities
had fulfilled the statutory
guideline
of
ten
percent.
maximum
subsidized
According
to
housing unit
HAC data, as of
December 1985 only 22 of the Commonwealth's 351 municipalities
exceed the
10% limit
or the 1.5% land area limit established
by the law (HAC file, January, 1986).
The
MAPC
report
states
that
the
HAC
had
overturned
comprehensive permit denials in eleven communities and upheld
a denial
The
in one.
report does
not indicate how many of
these projects were built and occupied.
EOCD and
undertook
Housing
Citizens
the
first
Planning
comprehensive
number and
by the
municipalities for
the state
appeals to
state HAC, and whether or not projects
The CHPA report concluded that
were constructed.
for families
of the law's
type of permit applications at the
local level, decisions by local boards,
HAC, decisions
Association (CHPA)
evaluation
The authors surveyed all
effects in 1979.
information on
and
3,400 units
and older people had been constructed throughout
the state using the comprehensive permit process.
The report goes on to say:
It is clear, however, that the effort needed to get a
comprehensive permit and work through to construction is not
easy. Many proposals failed to materialize.
Opposition to
housing for families has been greater than housing for older
people.
In addition to local opposition, problems of
financing costs, building costs, and local taxes have
discouraged many developers.
A significant number of
proposals could not proceed with building because of the
lack of funding from federal or state governments (Ruben and
Williams, 1979, p. 10).
The
Housing
municipalities
report.
Appeals
to
update
Committee
the
data
recently
presented
the CHPA
The committee plans
a written analysis of its findings.
HAC intern is preparing an
presented
in
A comparative analysis of the CHPA survey and the new
data appears in Chapter 3 of this report.
to issue
re-surveyed
in
addressed them.
Chapter
774
The intern
in-depth
hearings
points
14
analysis
and
out
how
that
In addition, an
of
the
the issues
HAC
has
many attorneys
have prepared papers on the legal aspects of the law for their
clients.
These papers are, however, proprietary and have not,
to
date,
this
(Kane, 1987).
been
published
or
made available to others
CHAPTER 2. INTERPRETING THE LAW
Most who have worked
with
Chapter
774
agree
assertion that statute was poorly written.
vague standards.
is that
with Engler's
Many criticize its
Among the most troublesome of its directives
by the
a denial
local board will be upheld if it is
"reasonable" and "consistent with local needs."
In addition,
the statute provides no guidelines on how to determine whether
or not health and safety issues outweigh the need for housing.
However, since Engler wrote his analysis of the law, these and
other vague standards in the
Act
have
been
clarified
to a
certain extent through precedents put forth in Housing Appeals
Committee and court decisions.
To date, the HAC
774
appeals
has issued
cases
in
eighty-one decisions
which seventy-four ZBA permit denials
were overturned and seven
were upheld
Approximately
additional
twenty-six
decision pending, active
on Chapter
hearing,
(Kelly Memo, 1/30/87).
appeals
under
are
"active:"
negotiation,
or in
litigation.
2.1 Issues Addressed by the Courts:
Chapter
774
has
been
Landmark Decisions
legally challenged on many occasions.
Several court decisions have clarified aspects of the law as
Boards of
local Zoning
to the
it grants
well as the powers
Appeals and the Housing Appeals Committee.
The Law
is Constitutional:
and Concord Homeowner Corp.
of Hanover
of Appeals
Country village Corp
cases:
on two
issued a joint decision
vs. Board
In 1972, the State Superior Court
In what is commonly known as
vs. Board of Appeals of Concord.
the Hanover decision, the court ruled that Chapter 774 confers
power upon
both
override zoning
HAC
the
regulations which
low and moderate income
local
the
and
Boards to
Zoning
hamper the construction of
housing; and
this power
to override
zoning regulations is constitutional.
Outside Impacts
HAC:
of the
Housing Need not Be Considered by the
In the Norwood case,
not considering
impacts such
beyond its jurisdiction.
determined that
the HAC
as increased
it would
school costs went
This was challenged in
the Superior
Court and the HAC decision was sustained.
The
ZBA/HAC
has
Jurisdiction
Connected to the Housing Project:
the argument
permits in
Off-Site
Activities
The town of Maynard in made
that the ZBA/HAC did not have the power to grant
which off-site activities,
were included.
power.
over
such
as sewer hook-ups,
The court ruled that they did indeed have that
The ZBA/HAC has Subdivision
ruled that the ZBA/HAC
Powers
of
the Planning
In the North Andover case, the court
Cases:
774
in
Board
Control
could take
the powers of
unto itself
the planning board vis-a-vis subdivision control.
Housing
Income
Mixed
is
a Low/Moderate Income Development:
the Wellsley
The Supreme Judicial Court ruled in
that a
both market
development of
mixed income
moderate income units is eligible for
and
that
housing.
the
entire
being
and low and
a comprehensive permit,
development is low and moderate income
in mixed income
This decision resulted in all units
development
case (1982)
counted
the
toward
10% low and moderate
income housing threshold.
The Term "Reasonable"
Surplus
The Dartmouth
Verbiage:
in 1978 established that the term "reasonable"
Superior Court
is
is
surplus verbiage and is
included in the concept "consistent
with local needs."
2.2 Issues Addressed by the Housing Appeals Committee
Several
Housing
Appeals
established that health or
objections must
and
moderate
Committee
safety factors,
outweigh the
income
decisions
housing.
have
clearly
or valid planning
regional and local need for low
Clarifications
of specific
issues written in HAC decisions
and planning
health, safety,
follow."
In all cases but two, the HAC ruled that
Inadequate Drainage:
was
drainage
inadequate
and moderate
regional and local need for low
In
cases
two
with
did
developer
a
present
outweigh
income housing.
plan
mitigate
runoff.
under water."
[Glen Realty Trust vs. Woburn Board
not
drainage,
"is practically continuously
of Appeals,
The HAC upheld local permit denials in both cases.
One ruling stated that a developer
Building Design:
Site and
is
One site
to
flooding, or
1974]
the
severe drainage problems, the
extremely
not
to
sufficient
not
obligated
building design.
to
the
produce
Approval
of the
best
possible
site and
design by the subsidizing
agency is sufficient.
Properly Zoned Sites Exist:
One ruling stated that developers
are not obligated to look for or find properly zoned sites.
one decision the HAC ruled
Other Sites:
In
that the issue is not whether
the
site
suitable.
It
Availability of
site" but
whether it
is
is
the
"most ideal
is not relevant that
better sites may be available.
'The following issues were discussed in HAC written
Cases in which
decisions on Chapter 774 appeals cases.
significant issues were addressed are cited individually.
19
in
Technicalities
established that
the
denials will
decision
One
Process:
Appeals
upheld on the basis of
not be
technicalities in the appeals process.
The Developer is not a Limited Dividend Organization:
rules
and
regulations
state
that
to
dividend organization, a developer must
housing under Chapter 40B (774)
c) be eligible to receive a
agency after
The HAC
qualify as a limited
a) propose to sponsor
b) not be a public agency and
subsidy from
a state
or federal
a comprehensive permit has been issued (1978, p.
410).
Inadequate Access:
inadequate access
In all cases but one,
ruled that
was not sufficient to outweigh the regional
and local need for low and moderate income
ruled in
the HAC
housing.
The HAC
one case that the combined length and steep grade of
the access road was a planning defect and a health
hazard (this
was an
elderly housing
the local permit denial.
The
grade
and safety
development) and upheld
was
in
excess
of the
maximum grade permissible under the municipality's subdivision
control regulations (Sherwood Estates vs. Board
of Appeals of
the City of Peabody, April, 1982).
Inadequate Fire
Protection:
In one of several cases in which
the ZBA used inadequate fire protection as a reason for permit
denial,
the
HAC
upheld
the
local decision.
The Committee
ruled that water volume and pressure
the
financial
incurred
burden
inadequacies would be too great.
was inadequate
and that
by the town to correct these
did not offer
The developer
to share or take on expenses for correcting the problem.
This is not the
The Developer is Not Financially Responsible:
jurisdiction
of
the
It
HAC.
defers
to
the subsidizing
agency's decision on questions of financial responsibility.
Insufficiently
Plans:
Detailed
detailed construction documents
comprehensive permit.
those
submitted
by
The
any
One ruling established that
are
not
plans need
other
needed
to be
developer
to
to
issue a
as detailed as
the
planning
department or to the subsidizing agency.
Inconsistent with
the Master Plan:
In one case the HAC ruled
that if the Master Plan is:
totally unreasonable with respect to present land uses or
reasonable potential future uses; or there is more than a
suspicion that the Master Plan is simply a sophisticated
maneuver to perpetuate precisely the abuses which Chapter
774 was designed to eliminate;
or is simply an ancient
planning exercise ignored and gathering dust for years, and
now dusted off to frustrate housing in which there is a
clearly demonstrated
need, the
Master Plan will not
prevail."
[Harbor Glen Associates vs. Hingham Board of
Appeals, 1982]
In this
case a
industrial to
called for
750 acre
a variety
tract of land had been rezoned from
of uses.
The
Harbor Glen proposal
a housing project on a 36.2 acre parcel of land in
the tract zoned for an office park.
21
Eighty-four acres
of the
tract
was
zoned
for
multi-family
a
comprehensive
previously
issued
within the
fifty-seven of
The town had
housing.
for
permit
acres already developed.
these 84
of opposition
The HAC ruled that the town had no past history
to low
and moderate income housing. Rather, it had zoned part
and had
of the tract for multi-family housing
one
In sum,
for
permit
comprehensive
land.
one project
low income project on this
a
a Master Plan
only created
had not
the town
already issued
that specifically included low and moderate income housing, it
The HAC upheld the permit
was actively implementing the plan.
denial.
Inadequate Location:
all cases
In
but one where this issue
was raised, the HAC ruled that a less than ideal
location was
not sufficient to outweigh the regional and local need for low
and
moderate
catastrophic
income
housing.
gas
propane
railroad noises, and the
of the
surroundings made
development.
one
explosion,
commercial and
case,
traffic
a potential
hazards
and
industrial character
the site unsuitable for residential
The HAC upheld the
Eight Company
In
vs. Westfield
local permit
denial (Forty-
Zoning Board of Appeals, August,
1976).
Not Priced to Fill the Most Immediate Need:
HAC
ruled
that
it
In
one case the
is not the developer's responsibility to
meet the most immediate or severe housing need.
22
The
Report:
Impact
Environmental
exempted the
Environmental Affairs
because the subsidizing agency
request an
must
however,
Office
Executive
of
HAC from requiring an EIR
(MHFA) must
do so.
The HAC,
EIR for projects consisting of more
than 100 units.
economic hardship
the ZBA
place undue
HAC will
invalidate those conditions.
to be
units or
the rents
the jurisdiction of the subsidizing agency
charged are
and not the HAC.
on the developer, the
The cost of the housing
Economic Issues:
imposed by
If conditions
Economic Hardship on the Developer:
Denials based on high housing costs or rents
will not be upheld.
Counting Existing Subsidized Units:
permit
denial
was
upheld
A case in which the local
that
established
when
counting
existing subsidized units to determine whether they exceed 10%
of all housing units in
the
the
municipality,
term "exist"
includes those units "under construction", "under permit," and
"under firm subsidy commitment"
(Pioneer
Homes
Sponsors vs.
North Hampton Board of Appeals, April, 1985).
Boards of
as
reasons
Inadequate
Appeals have raised the following additional issues
for
not
Privacy
granting
Buffering;
a
comprehensive
Inadequate
Water
permit:
Supply;
Inadequate Water Pressure; Lack of Sidewalks; Isolation of the
Site
--
Distance
from
schools,
churches,
Disposal; Noise; Impact on Schools; Lack
Impact; Inadequate
Sewer Lines;
etc.;
Rubbish
of Services; Traffic
Open Space Preservation; Not
in Character with the Surrounding Neighborhood;
High Density;
Lack of Transportation; Inadequate Parking; Negative Impact on
Tax Base.
In all cases
Committee, the
brought before
committee ruled
the Housing Appeals
that the development proposal
provided adequate mitigation measures, and that
problem
with
the
development
the perceived
proposal did not outweigh the
regional and local need for low and moderate income housing.
2.3 Summary
In each case heard to date, the Housing
made
it
clear
that
it
perceived health, safety,
local and
Concerns
regional need
pertaining
developer's
to
credibility,
will
and
consider
planning
local
existence
high
denials,
housing needs outweigh all
only whether or not
issues
outweigh the
for low and moderate income housing.
of
quality
purchase prices are not within its
only 'seven
Appeals Committee has
the
but the
other
design,
sites,
and rent or
jurisdiction. In upholding
HAC
has
demonstrated that
most severe
problems put
forth as reasons for low and moderate income housing to be
prohibited.
the
IMPACT OF THE LAW: THE COMPREHENSIVE PERMIT
CHAPTER 3.
PROCESS AND ITS EFFECTIVENESS IN GETTING PROJECTS BUILT
used Chapter
Since its creation in 1969, many developers have
774
produce
to
as
built
Citizens Housing and Planning
the 351
is
law
The number of projects
one
of
measure
its
1979, researchers at EOCD and
and
1978
In
effectiveness.
the
of
result
a
housing.
subsidized
Association in
Boston surveyed
municipalities in the Commonwealth in order to obtain
on
information
774
Chapter
all
thirty-six
Three-hundred
applications.
Eighty-six
responded to the questionnaires.
received
for
applications
111
comprehensive
municipalities
communities had
permits.
comprehensive
communities supplied the following information on
application:
developer, type
type of
units proposed, number of
units built,
permit
The
each permit
of funding, number of
housing, ZBA
type of
decision, Appeal to HAC, and HAC decision (Ruben and Williams,
1979).
In 1986,
the HAC
requesting
the
Information
was
application
from
again surveyed
same
information,
requested
1969
to
municipalities have responded
1All
on
the
to
the state's municipalities,
for purposes of updating.
each
comprehensive
present.
the
To
permit
date,
questionnaires. 1
317
The
statistics reported in this document referring to
'the entire 18-year life of the law are derived from the data
collected by the HAC in 1986.
data collected indicates that there have been 292 applications
to local
for comprehensive permits
of Appeals
Zoning Boards
Comparing activity during
since the law was enacted in 1969.
the first eight years of the Act with activity over the entire
eighteen
year
of
life
reveals that its impact is
law
the
indeed increasing: more permits are granted on the local level
(Table 1); developers are more often appealing a permit denial
to the HAC (Table 2);
granted
permits
and
more often
are
resulting in built projects (Table 3).
3.1 Permits Granted
Local
Zoning
permits today
Boards
of
Appeals
the first
than during
1969
are
to
the
more
likely to grant
few years
summer
of the law's
of 1978, developers
existence.
From
submitted 111
applications for comprehensive permits
Zoning
Boards
of
Appeals.
permits were granted.
292 applications,
1 shows, half
Of these applications, only 17
In contrast, between 1969
146 permits were granted.
(50%)
of
the
to local
permit
and 1986, of
In sum, as Table
applications
have been
granted during the entire life of the law compared to only 15%
during the first few years of its existence.
It is not difficult
turnaround.
to speculate
about the
reasons for this
During the first few years after it was passed,
no one knew how
law.
the HAC
courts would
and the
interpret the
Since then, the Housing Appeals Committee has sustained
TABLE 1 - Comprehensive Permit Applications
-
1969
1969
1978
1986
%
Granted
17
15.3
146
50.0
Granted with Conditions
38
34.2
49
16.8
Not Granted
47
42.3
96
32.9
9
8.1
1
0.3
111
100.0
Other*
TOTAL
*This category
process.
represents
cases
292
100.0
the permit application
in
Housing Lower Income
Source:
"Comprehensive Permits for
Households in
Massachusetts" and data collected by Emily Kane
for the Housing Appeals Committee.
the local ZBA permit
denial in
appealed
report,
(HAC
file
clear message to communities
appeal a
decision, the
her favor.
over
and
only seven
1/30/87).
that if
HAC is
again.
156 cases
This provides a very
a developer
chooses to
very likely to rule in his or
Further, the courts
over
of the
have backed
up HAC decisions
Provided with this information, many
communities probably choose to grant the permit rather than go
through
the
entire
appeals
process and lose.
In addition,
while it may be difficult to prove, many assert that the law's
existence has
forced communities
to address the need for low
choosing to grant
may be
They
and moderate income housing.
more comprehensive permits as part of this effort.
One
why
then,
ask,
might
have valid
Zoning
Many
denied on the local level?
believe they
so many permits still being
are
Boards
of Appeals
health, safety, and planning reasons
In several cases,
for denying comprehensive permits.
even if
the ZBA wants to grant the permit, it often denies it based on
public opinion that the proposal is
Murray Corman,
ZBA grants
"bad guy."
In
cases in
the permit in spite of public sentiment
challenge brought
opposing it, the developer can face a court
by abutters
According to
the head of the Housing Appeals Committee, the
ZBA would rather let the HAC be the
which the
unpopular.
or other community residents.
Details of several
local ZBA decisions denying permits will be discussed in later
chapters.
3.2 Cases Appealed
Developers are more likely to appeal permit denials or permits
granted with restrictive conditions now than
few years
of the law's existence.
to overturn a large
developers
that
an
majority of
appeal
terms of the ultimate outcome.
is
during the first
The HAC's repeated actions
the ZBA
denials indicate to
worth the time and effort in
As Table 2 shows, between 1969
and
1978
totaled 85 potential appeals
time period,
60 cases
with
conditions
and
96
During
actually appealed.
49 permits
the law,
for
denied
were
During that
state HAC.
to the
(71%) were
the entire 18 year life of
with conditions
granted
and
denied
applications
a
were granted
of 155
total
potential appeals of which 133 (92%) were appealed.
TABLE 2 - Appeals to the Housing Appeals Committee
1969 -
1969 -
1978
1986
Maximum Possible # of Appeals
(applications denied or granted
with conditions)
85
145
Actual # of Appeals
60
133
Percentage Appealed
71%
92%
"Comprehensive Permits for Housing Lower Income
Source:
Massachusetts" and data collected by Emily Kane
in
Households
for the Housing Appeals Committee.
3.3 The Law's Success:
Projects Built
Chapter 774's ultimate effectiveness can best be judged by the
number
of
projects
permit process.
built
as
a result of the comprehensive
As authors pointed out in
the literature and
as CHPA data verified, the first eight years after the law was
enacted saw few
permits sought
projects
on the
built
compared
local level.
Table
to
the
number of
3 indicates that
only 35 of the 111 (32%) permit applications from 1969 to 1978
resulted in
built projects.
While it
is
difficult to discern
the reasons for the turnaround, more recent data suggests that
this trend
has not
continued into the present; that is, many
more permit applications are now resulting
In
fact,
70%
(205
of
292)
of
the
applications recorded between 1969
in built projects.
comprehensive
and 1986
permit
have resulted in
built projects.
TABLE 3 - Projects Built
1969 -
Total
1978
-
1969
#Built
%Built
Total
1986
#Built
%Built
Granted
17
11
65
146
133
91
Granted w/Cond.
38
16
42
49
32
65
Not Granted
47
8
17
96
40
42
0
0
Other*
9
TOTAL
111
*This category
process.
32%
35
represents
cases
292
in
205
70%
the permit application
Source:
"Comprehensive Permits for Housing Lower Income
Households in Massachusetts" and data collected Emily Kane for
the Housing Appeals Committee.
3.4 Decision Points and Projects Built
Permits can be granted at
comprehensive
permit
one
process:
of
the
when
three
the
points
developer
in the
first
applies to the local Zoning Board of Appeals; as a result of a
negotiated settlement
between the ZBA and the developer after
an appeal has been filed with the HAC; or after the HAC issues
The likelihood of a project being built decreases
a decision.
91% of those permits granted on the
as the process continues:
79% of settlements, and 69% of permits issued by
local level,
HAC order resulted in built projects.
numbers indicate how many cases
process; the
permit granting
fell into each category.
Chart 2 illustrates the
two categories in
3 combines
Chart
Decision" stage of the process --
the "Local
with conditions"
and "Permits denied"
--
"Permits granted
so
that
all
cases
appealed to the HAC appear in one category.
years,
ZBAs during the past eighteen
built
projects.
Denied
issued by local
146 permits
of the
3 illustrates,
As Chart
133
(91%)
resulted in
permit applications that enter the
appeals process are not as likely to result in built projects:
of the
133 cases
appealed to
the HAC between 1969 and 1986,
only seven permit denials were upheld; that is, the HAC agreed
with the
ZBA that
only half
(69 or
ever resulted
into
4
a permit
52%) of
in built
categories:
settlement
litigation.
or
should not be granted.
the remaining
projects.
denial
stipulation
However,
126 "appeals cases"
These remaining cases fall
overturned,
reached,
and
appeal withdrawn,
in
HAC hearing or
CHART 2 IBA Application
Comprehensive Permit Cases:
Local Decision
1969 -
Appeals Procpe
AppeWa to HAC
1986
Suilt r
Nt Built
ui
L-Nnt PLO
Peri t
Gralted
141
-ult
Bu~
Ap rraI
8
II
.-
5
uiltPuilt 32
Nof
irawn
Se tled
22
uilt
17
of Built
5
Fui ilt
7
over turned
frit
Built
7
uit
0
d
---phel d
I
rt Built
0
uilt
25L
Settled
16
ot Built 24
uilt
13
6d,uilt
3
uilt
26
Over turned
41
Not PuilI 15
Built
6
't
Buil.
HAC Hearing/Court
UilI
Appealed
4
ci Built
0
6
CHART 3 -
7BA ApplicjIat Ion
Comprehensive Permit Cases Appealed:
Lorc a! Dec i E;JO
in
Appeal to HAF
AppelS ProLess
1969 -
1986
Bu I
0w
NCOBuilt
-Bu t
133
-Ntc Built 13
ui;tI
Ap pe aled
12
et Pu:]t 7
utilt3
Wi thdrawn
36
Not Built 33
g.ilu
---- Bt t Iled
38
4E
3t
ofBu'
B
uihlt
33
N~d ilt
1i
.-pheld
7
. AC Hearing/Court
t Built 6
overturned by the HAC of which
denials were
Forty-one permit
Thirty-six applications
33 (69%) resulted in built projects.
at some
point in the appeals process of which
only 3 (8%) were built.
Thirty-eight applications resulted in
were withdrawn
settlements between the community and the developer before the
HAC was to issue a decision.
built.
were eventually
Thirty (79%) of these projects
Four cases
were in
HAC hearings or
litigation.
Projects that
enter the appeals process are less likely to be
built than those receiving
number of
reasons.
the local
level for a
First, a developer who appeals to the HAC
and the community in
become
permits on
which the
adversaries.
If
permit has
been denied often
all interest groups and regulating
bodies in a community are in favor of a low or moderate income
housing
project,
a
developer
comprehensive permit.
is
formed
between
A
the
is
permit and
to
receive
a
relatively cooperative relationship
developer
developer has a conducive atmosphere
project.
likely
and the community and the
in
which
to
build her
In contrast, when a community denies a comprehensive
the
members become
developer
appeals
to
the
state, community
angry that their power has been usurped.
if the developer makes its
through
the
appeals
Even
process and
receives her permit, the environment in which she must work is
much more hostile.
Second,
the
appeals
According to
process
the rules
often
outlined in
takes
to the
the local
time.
ZBA for a
day the HAC issues a decision is
140 days or about four and one-half months.
process often takes much longer.
level can go on for weeks.
long
the statute, the maximum
time from the day a developer applies to
comprehensive permit
a
In
reality, the
Public hearings at the local
HAC hearings can take months.
In
many cases, the entire process has taken one to two years.
Third, many
appeals are
reach a decision. A
withdrawn before
reason
often
cited
the HAC is able to
for
withdrawing an
appeal or not building a project after a permit was granted is
losing funding
attach
a
time
(HAC
data,
limit
to
1986).
Funding
their commitment.
agencies often
In other cases,
developers have been granted preliminary funding approval only
to discover
that during
the months
they were in the appeals
process, funding pools dried up.
In at least two cases, the town seized
developer
intended
to
build
his
the land
project.
developers decided to use the land for other
a conventional
data, 1986).
housing development
on which the
In other cases,
purposes such as
or a shopping center (HAC
of
Litigation, or the threat
cited
weapon
powerful
an
withdrawing
for
for
a
project.Many comprehensive
is
litigation,
appeal.
community
It is, unfortunately, a
who
wants
permit applications
suits after the local ZBA grants a permit,
in the
another reason
to
stop
a
result in law
while the
case is
state appeals process, or after the HAC has overturned
the local decision to deny a permit.
In more
than one case,
the ZBA has granted a comprehensive permit to a developer only
to be challenged in court by abutters or other citizens who do
not want
to see
the project built.
Although many developers
win their cases in court and go on to build their projects (12
of these cases were documented in the recent HAC survey), many
others have neither the time, the energy, nor the money
through a
court process.
Despite
the fact
to go
that the courts
have upheld HAC decisions over and over again, communities who
choose litigation know that they do not have to win, they only
have to wear the developer down so that he withdraws
from the
fight.
3.5 Summary
In
sum,
the
existence
process has resulted
moderate income
in
and
use of the comprehensive permit
the
construction
housing projects.
of
many
low and
However, only half of the
projects that enter "appeals" phase of the permit
built.
process get
Of the 133 projects that entered the appeals phase,
built projects,
resulted in
least often
those withdrawn
and
those settled most often resulted in built projects.
A more in-depth analysis of withdrawn and settled projects can
provide
why they
during the appeals process,
they are
of what happens to projects
understanding
better
a
the appeals process
very
are
those
that
projects,
while
result in
built projects,
and why
that projects withdrawn from
The premise
settled.
are withdrawn,
unlikely
to
result
in built
settled are very likely to
are
leads to
the following questions:
Is there anything about the nature of the comprehensive permit
appeals?
process that causes developers to withdraw
the nature
What are
What is
of settlements between developers and communities?
the
conditions
under
which
a
settlement
can be
reached?
The next
two chapters describe four cases in which appeals to
the HAC were withdrawn and four
and the
cases in
community reached a settlement.
which the developer
An analysis of these
cases will attempt to answer the questions posed.
CHAPTER 4.
WITHDRAWALS
Developers
cite
housing development as
The
proposals.
scenarios
well
as
following
which
in
reasons
many
withdrawing
for
types
of development
represent
four different
other
cases
withdraw
to
chose
developers
affordable
their
comprehensive permit applications instead of going through the
entire appeals process.
which cases
The question to be
answered is:
In
does the nature of the 774 appeals process become
the cause of withdrawing a proposal?
4.1 Barnstable
Donald Laskey was in the theater
business in
Boston for many
years before he moved to Cape Cod and founded Merchant's Bank.
He became involved in community issues in Barnstable and wrote
a
weekly
Laskey
and
column
in
his
wife
comprehensive
Appeals.
project
permit
They
on
a
Eleanor
with
proposed
Cape
local newspaper.
Cod:
the
to
filed
an
application
Barnstable
build
300
In September 1971,
the
Zoning
first
for a
Board of
MHFA financed
rental units for families in a
development to be called Leisure Village of Cape Cod.
Three months later in
denied the
permit.
December
of
the
same
year,
the ZBA
The board stated that the application was
suitable
in
matters
safety.
The board
design,
of
and
claimed, however, that there was no local
need for low and moderate income housing and
obligated to
health
construction,
consider the
was not
that it
regional need.
The board claimed
that more than 10% of the housing units in Barnstable were for
low and moderate income residents (ZBA Decision, 1971).
The Laskeys filed an appeal with the HAC two weeks after their
application was
February
denied.
1972.
The HAC
Discussion
held its
on
this
day centered around
whether a need for low and moderate income
Barnstable and
first hearing in
housing existed in
the region (HAC Hearing Transcripts, 1972).
second day of hearings was scheduled but the
their appeal
not like
and
felt
at the
end of
the negative
that
there
A
Laskeys withdrew
February.
They decided they did
publicity their
project was receiving
was
not
enough
justify continuing with the project
community support to
(Dunning,
1987).
4.2 Bridgewater
In August 1971, Gerald Zide applied for a permit to
MHFA-financed units
of family
Center St. in Bridgewater.
The
housing on
build 100
9 acres of land on
proposal called
for 8 three-
story buildings comprising 15 one-bedroom, 69 two-bedroom, and
12 three-bedroom units.
the permit in March 1972.
The ZBA put forth
a decision denying
drainage system could not
the public
claimed that
The board
the sewer hook-up
adequately support runoff from the project;
was
too
because
away;
far
of
1000 other units in various
of the
stages of construction in other parts
system did
plant was
sewer treatment
character of
project would not fit into the
made up
need for low
schools would become
at capacity;
project would generate too much traffic; the
overcrowded; the
which was
for this project; the
adequate capacity
not have
city, the sewer
housing
in
there was no
homes; and
of single-family
income
the neighborhood
(ZBA Decision,
Bridgewater
1972).
The developer appealed to the HAC in April, 1972.
Bridgewater Zoning Board of Appeals filed a Motion
with
the
HAC
stating
that
In May, the
to Dismiss
the developer had applied for a
special permit which came under Zoning Bylaws Chapter
not
Chapter
774;
the
applicant
limited dividend corporation,
and there
was no
or
was
a
not
40A and
a public agency,
non-profit organization;
need for low income housing in Bridgewater.
Later that month, the HAC agreed that the developer had indeed
applied
for
a
special
permit.
For this reason, it allowed the Motion to Dismiss and
advised
the
developer
comprehensive permit.
permit
to
instead
reapply
-
of
a comprehensive
this
time
for
a
However, the developer did not resubmit
his application to the Bridgewater ZBA.
4.3 Canton
In
May
1980,
John
and
Leo
Corcoran applied to the Canton
Zoning Board of Appeals for a comprehensive permit to build 79
MHFA-financed family
rental units.
to consist of one 6-story building
two 2-story
buildings with
August of that same
that the
with 71
4 unit
year, the
6 variances
Meeting House Village was
family units in each.
ZBA denied
required by
elderly units and
In
the permit stating
the project
were too many
(ZBA Decision, 1980).
Specifically, the board stated
not safely
cross Route
that
138 to
elderly
residents could
access public transportation;
one entrance/exist to the project was
not adequate
enough to
provide police and fire emergency service; Canton's zoning bylaws allowed a maximum
the proposed
building height
traffic
impact
would
inaccessible to shopping.
hearings, the
1/2 stories and
project was in a single-family neighborhood; the
ZBA had to date approved all
the
of 2
subsidized housing applications;
be
too
great;
In October
developers withdrew
1980, after
one day of
their appeal because their
application for financing
had
believes that
was denied
the permit
and the site was
been
denied.
The developer
strictly because of the
low and moderate income nature of the project (Lashley, 1987).
4.4 Mashpee
In February 1981 Marvin Blank of Quaker Run Associates applied
to
was to
comprise 64 one-bedroom elderly apartments
After the ZBA had taken
and 68 two-bedroom family apartments.
the developer
no action,
1981.
The Board
denying
decision
in Mashpee.
27.2 acres
units on
financed family and elderly
Quaker Run
Appeals to build 132 MHFA
of
Board
Zoning
Mashpee
the
June of the same year (ZBA
in
permit
and issued a
in May
public hearing
held a
the
a second time in April
applied for
Decision, 1981).
were subsidized.
The board argued that although the town had
used in
were seasonal
of those
2,982 housing units, half
not be
Mashpee's housing units
10% of
The ZBA stated that more than
Therefore,
the calculation.
and should
the town's 149
its 1491 year-round
subsidized units made up more than 10% of
The Board listed the following additional reasons
dwellings.
for denying the permit:
the
site
was
the
within
Otis Air
Force Base glide path and therefore health and safety would be
endangered; the developer could
quality; the
development proposal
the developer could provide
project did
next
to
a
not guarantee
not have
projected
did not give evidence that
adequate
enough parking
sanitary
adequate water
septage
treatment; the
spaces; the project was
landfill
and
residents' health and safety would be endangered.
therefore the
appealed the
The developer
ZBA decision
HAC in July
to the
The HAC held the first hearing in September
1981.
hearings later
ten appeal
months and
a
In
his appeal.
letter
to
the
the developer withdrew
HAC
counsel, the
legal
the scarcity of available
stated "given
developer's attorney
Ten
1981.
this time and
projects at
for such
state and
federal funds
given the
need of [the developer] to act with respect to this
for which the
[he] proposed a conventional project"
property,
ZBA granted a special permit (1983).
stated that the availability of FHA
The developer's attorney
funds needed
to make the
project financially feasible was becoming extremely uncertain.
Because of the opposition to the project, the developer feared
that
even
if
won
he
challenged in court.
the
case,
appeals
HAC
He therefore
decided not
he would be
to pursue the
low and moderate income project any longer (Dunning, 1987).
4.5 Summary
In
Barnstable,
believed
Laskey's
the
there was not enough
community support for their affordable housing
type of
subsidized housing
they were using a
Donald
Laskey
has
however, that if he
that
most
had the
affordable
This
was new to the Cape Cod area, and
that was
permit process
since
project.
passed
away.
benefit of
housing
projects
new and untested.
We could speculate,
hindsight in knowing
are
criticized
by
be
to
are
they
communities in which
that the
and
most local ZBA decisions
Committee overrides
Housing Appeals
built,
denying a comprehensive permit, he may have chosen to continue
receive his
appeals process,
with the
permit, and build his
project.
The case in Bridgewater
a procedural error
example of
is an
that perhaps resulted because the law was new and some did not
this error
assume that
worked.
it
understand the process by which
Again,
we can
is a result of no fault in the law or
the procedures which it outlines.
Canton
represents
having
nothing
a
to
third
do
with
the 774 permit process caused a
Funding shortages
developer to withdraw his proposal.
our times
product of
that
his
organization
several times and believes it works
hearings average
about six
HAC has not dragged
are a
and must be addressed in forums outside
The Canton project developer stated in
Chapter 774.
interview
which circumstances
in
example
them
has
well.
months but
out.
used
He
a phone
the 774 process
He explained that
for the most part the
stated
that
the major
expense involved in the Chapter 774 process are legal fees and
while it
still make
"sometimes cuts
into [their]
profits," the project
sense from an economic point of view.
It has been
his experience that communities oppose low and moderate income
projects not because of their design or density but because of
the "emotional sentiment" attached to low income housing.
is his opinion, therefore, that the
It
process is a
Chapter 774
necessary one (Lashley, 1987).
The
Mashpee
decision to
It is interesting
Appeals
moderate
note
to
the
denied
that
income
housing
conventional housing
directly resulting in
774 process
commitment involved in the
the developer's
an example of the lengthy time
represents
case
withdraw his permit application.
permit
comprehensive
granted
a
special
protesting the
for low and
permit
for
a
relatively the same density.
project of
This example reinforces the Canton developer's
communities are
Board of
Zoning
same
the
that
assertion that
the "moderate" and
"low" and
not necessarily the "housing."
In sum, many withdrawn appeals
issues
not
funding.
process may
directly
However, in
related
appear
to
some cases
discourage a
Chapter
the
result of
774, such as lost
the length
developer and
less time-consuming alternative.
be
to
of the appeals
lead him to pursue a
CHAPTER 5.
SETTLEMENTS
the
and
developer
the
between
reached
Settlements
This is
community resulted in built projects 79% of the time.
91% "success rate" for permits granted on
to the
second only
local
A stipulation or settlement
the local level (HAC data, 1986).
can occur after the local ZBA denies a comprehensive permit or
and
unreasonable,
During or
into
appeals
conditions under
permit.
The
hearings,
agreement on
are near
negotiations
and
reach
which the
terms
has
of
the
to the HAC.
appealed
parties often
two
the
They enter
many issues.
stipulating
agreement
ZBA will
developer deems
the
conditions
developer
the
before
realize they
to
subject
grants a permit
the
grant the comprehensive
agreement
become
of the
part
official HAC decision.
most
Settlements
parties.
an agreement.
categories.
made
concessions
for the
by
both
HAC, works with
and developers in assisting them in reaching
He states that
"trade-offs" fall
into several
Some of the most common in his experience include
building
streets and
height,
building
sidewalks leading
site buffers, and
developer
include
John Carney, legal counsel
many communities
density,
often
is
unit
almost
mix.
always
set-backs,
quality
of
to the development, quality of
Carney
points
constrained
by
regulations governing financing for the project.
out
the
that the
rules and
Consequently,
the negotiations
agency often becomes party to
subsidizing
the
(Carney, 1987) to ensure that any
changes in
The following four cases
the project meets with its approval.
a developer
represent examples of settlements reached between
and
over
"dispute"
They
community.
local
one
issue
range from a relatively simple
that
easily
was
resolved
to a
situation in which the developer and the ZBA disagreed on many
issues but
were
still
settlements resulted
able
to
in built
reach
an
projects.
agreement.
All
Chart 4 summarizes
issues and outcomes of the four cases.
5.1 North Attleboro
In
December
1981,
the
North
Attleboro
Housing
Authority
applied for a comprehensive permit to build 50 units of statefunded family and
elderly
area.
story of
The first
housing
in
a
commercially zoned
the six-story
building was to be
commercial with the upper five stories to be residential.
Housing
Authority
planned
to
buildings on the site in order
ZBA
held
a
decision the
public
hearing
demolish
to build
in
following month.
permit subject to five conditions
one
condition
would
The
the structure.
ZBA agreed
(ZBA Decision,
render
unfeasible (Letter to HAC, 1982).
existing commercial
The
January 1982 and issued its
that month, the developer appealed to
that
The
the state
the
to grant the
1982).
Later
HAC claiming
project economically
CHART 4 - Settlements:
Proposed
North
Attleboro
Sharon
Marshfield
Rockport
50 units
statefunded
family
and
elderly
24 units
statefunded
elderly
and
handicapped
Issues and Outcomes
ZBA Objections/
Conditions
Install
sprinkler
system
throughout
building
Install
traffic
light;
Improve
emergency
access;
Improve
vehicle
access
30 units
Inadequate
federally- drainage;
funded
Septic
elderly
system
and
improperly
handicapped
installed Danger to
ublic health;
Density
36 units
Density;
federally- Inadequate
funded
Parking;
elderly
Inadequate
and
buffers;
handicapped Fire Safety;
Isolated site;
Poor road
conditions
Developer
Apparent
Concessions/ Legitimate
Built
Issues
50 units
Install
exposed
sprinklers
in common
hallways
Fire
Safety
24 units
Install
light if
permission
is granted;
Compromise
access
improvement
Traffic;
Fire
Safety
30 units
Drainage
mitigation;
Widen
driveways;
Install
fire
hydrants
Drainage;
Fire
Protection
30 units
Density;
Built
Fire
emergency
Protection
access road;
Added fire
protection
mitigation
measures
The
ZBA
conditions
comply with all state
needed
to
installed
flush
be
an
building;
follows:
and
local
with
the
insure
to
as
were
all signs
codes;
a
pump was to be
pressure
throughout the
building;
generator was to be installed; and
emergency
sprinkler system was to
building
water
proper
the developer was to
installed
be
throughout
the entire
building.
The
Housing
Authority
stated
that
the state building code
required a sprinkler system in buildings over 70 feet high and
its building
would not
reach that
limit; it claimed that it
could not afford to install the sprinkler system.
Two months
after the appeal was filed, before any hearings were held, the
two parties
reached
a
settlement.
The
Housing Authority
agreed to install exposed sprinklers the entire length of each
hallway on all residential
floors
of
the
building (Consent
Judgement, 1982).
5.2 Sharon
In
April
1982,
comprehensive
handicapped
the
permit
housing
Sharon
to
on
Housing Authority applied for a
build
38.75
24
acres
units
of
of
elderly
and
town-owned land in
Sharon.
The units were to be funded through the Massachusetts
Chapter
667
elderly
and
689
handicapped
housing
subsidy
programs.
The development was to consist of three attached 2-
story buildings with 8 units in
already owned
the site.
the
64 units
each.
The Housing Authority
of low and moderate income housing on
A 13.5 acre portion of the land
South
Norfolk
Elderly
Housing
was to
Services
be sold to
(SNEHSI), who
planned to build more units in the future.
The Zoning Board of Appeals held
permit application
In August the
ZBA,
reached
10%
the
during May,
four public
June, and
acknowledging
limit,
granted
conditions (ZBA Decision, 1982).
Authority,
stating
that
that
July of that year.
Sharon
the
In
hearings on the
had
permit
not yet
subject
September
to
the Housing
several conditions would render the
project economically unfeasible, appealed
to the
HAC (Letter
to HAC, 1982).
During
the
hearings,
neighbors on Stonybrook Road expressed
concern that their street not be used as an access road to the
development
safety.
and
because
traffic
might threaten their children's
The conditions for granting the permit addressed this
other
safety
and
environmental
concerns.
Authority agreed to six of the nine conditions.
three conditions were, however, unacceptable:
Hanson Farm Road was to be
flashing light
Street.
installed at
The emergency
The Housing
The following
The entrance at
widened, plantings
removed, and a
its intersection with North Main
access road
was to
be 14
feet wide,
connected to
an access road around the existing 64 units, and
continue through to North Main Street.
was to
maintain the
The
existing turnaround
Housing Authority
and construct a new
one on the land to be conveyed to SNEHSI.
The
Housing
Authority
requirement was
its control.
subject to
that
state and
the
flashing
light
local approvals beyond
It did not have funds in its budget to widen the
present emergency
access road
one of the same width;
constructing a
proposed
claimed
Maintaining the present turnaround and
new one
leeching
to 14 feet and construct a new
would make it necessary to relocate a
field;
the
Housing
Authority
could not
afford to do this.
Before the first scheduled hearing date, the Housing Authority
and the ZBA reached an agreement (Stipulation, 1982).
The ZBA
modified the conditions as follows:
1.
The Housing
Authority was to install a flashing light at
the aforementioned intersection subject to state Department of
Public Works approval.
2. Although
the new
access road
existing road did not have to
was to be 14 feet wide, the
be widened.
The
new road did
not have to extend all the way to North Main Street.
3.
The
existing
turnaround
did
not
have to be maintained
(resulting in only one turnaround in the development).
5.3 Marshfield
In March
1980 South
Shore Housing
organization, applied for a
units of
Development, a non-profit
comprehensive permit
federally-funded handicapped
two sites in Marshfield.
April
and
month
(ZBA
issued
a
The
decision
Decision,
to build 30
and elderly housing on
ZBA held
a public
hearing in
denying the permit later that
1980).
The
developer
appealed the
decision in May.
In its
decision, the
moderate income
board acknowledged the need for low and
housing in
Marshfield.
It stated, however,
that:
1.
The plans were not definitive (both sites).
2.
The
ground
water
proposed septic system and
line
fell
this
6" above the base of the
posed
a
health
and safety
hazard to the residents (site 1).
3.
Surface run-off
from the
site would drain onto abutting
properties and into the street which contained no storm drains
resulting in possible flooding (both sites).
4.
The town well was located near the first site; the septic
system problem therefore posed a health and safety
problem to
the entire town.
5.
The density
enough
green
on both
and
open
sites was
space,
too high;
parking,
deliveries, visitors, and emergency vehicles.
52
there was not
and
space
for
In June,
the developer's attorney sent a letter to the town's
attorney proposing conditions upon
be built
(1980).
problem.
conditions (Stipulation,
buildings on
regrade both sites so
absorbed
1980).
Five of
addressed mitigation measures for the drainage
The developer agreed to:
stone around
stipulation could
In October, an agreement was reached based
on these and other
the conditions
which a
into
the
parking lots;
water draining
a strip
of crushed
both sites to collect roof runoff;
that
as
ground;
and
place
install
much
water
install
as
possible was
catch-basins
underground
drywells
onto both sites from the street.
in both
to collect
In addition,
the developer agreed to widen the driveways from 22 to 25 feet
as
requested
by
the
fire department; provide adequate site
lighting that would be inoffensive to
hydrants
and
fire
call
boxes
on
neighbors; install fire
both
sites; and add one
additional parking space to one site.
5.4 Rockport
In February 1985 Frederick Cefalo of
applied
for
a
comprehensive
units of elderly housing
build a
single 2-story
angle to each other.
in
permit
Rockport.
building with
Each
Curtis Street Associates
wing would
to build 36 FHA-funded
Cefalo
proposed to
two wings
at a slight
include 18 one-bedroom
units.
Four
of
the
36
handicapped residents.
and
issued
a
were
to
be
designed for
The ZBA held a public hearing in March
decision
Decision, 1985).
units
denying
the
permit
The next day, the developer
in
April (ZBA
appealed to the
HAC.
In its
decision, the ZBA acknowledged that a need for low and
moderate housing existed in Rockport, but stated that Cefalo's
proposal did
not adequately
proposed building violated
bylaw
provisions.
meet the needs of the town.
3
The
density
bylaw
and
4
The
parking zoning
called for 1 unit per 10,000
square feet of land, a maximum of four units per building, and
a maximum
of 3
units to be built per year.
proposal called for 1 unit per
3823 square
In contrast, the
feet of
land, 36
units in one building, and 36 units to be built in one year.
The bylaw
foot
called for
parking
requirements to
1.5 parking spaces per unit, 200 square
spaces,
greenbelt,
shield the
site from
fence
and
shrubbery,
neighboring sites, and
that no parking spaces be located between the building and the
street.
In
contrast,
the
proposal called for 1.2 parking
spaces per unit, plans showing 180 square foot parking spaces,
a
request
to
be
parking spaces to be
street.
excused
located
from buffer requirements, and all
between
the
building
and the
In addition,
the ZBA
cited many
health and safety issues in
its decision to deny the permit:
site was
too small
and may
The
water main
have been
fighting; there was inadequate access
equipment
and
isolated for
site
was
repair
in
it;
other
poor
repair
site
the
site
the
for fire
site was too
leading to the
the town could not afford to
subsurface
was
unstable;
related to
Street was in poor condition.
developer refused
to
the sidewalk
and
drainage issues
insufficient for fire
vehicles;
elderly residents;
the
wetland and
emergency
serving the
there were
the site; and Curtis
The board pointed out
that the
to modify his proposal or agree to assume a
portion of the added financial burden to the town.
The developer
responded
documents presented
to
the
during the
ZBA's
concerns
in several
public hearing process before
the ZBA denied the permit (Supplemental Information Memoranda,
1985).
He
units per
pointed
out
acre, several
this ratio.
other developments
in town exceeded
In response to the Board's concern that the site
was too
isolated,
allowed
to
he
choose
transportation would
respond with
that while he proposed to build 11
claimed
to
live
that
in
be provided;
delivery services
stated that the ocean
a
view would
the
should be
more rural setting; that
and that
and so
on.
more than
fact that amenities were not close by.
elderly
the market would
In addition, he
make up
for the
It was the developer's
understanding that
the water
to be upgraded and
that during
main serving the site was about
that time
the road
would be
improved.
In
response
to
the
Board's
requirement
space/unit ratio be respected, he pointed
had declared
in the
Hanover case
was sufficient for an
regulations stated
elderly
that 3
that
the parking
out that
the court
that 1 space per 2.4 units
housing
development.
MHFA's
spaces per 4 units was sufficient.
He claimed that a development of
detached housing
that would
meet
was
unfeasible
the
bylaw's
requirements
financially
because there was too much ledge and too many wetlands
site.
on the
His budget could not accommodate the cost of expanding
the water main.
parking
and
He pointed
greenbelt
special permit.
In
out that
requirements
addition, the
the bylaw
could
be
growth rate
stated that
modified
by
bylaw calling
for only 3 units per development to be built each year applied
only to subdivisions.
In June 1985 legal
legal counsel
counsel for
each party
developer
sufficient
presented
water
the
following:
resources?
Is
distribution system sufficient?
question, is
the HAC
to present statements of issues to be discussed
in the HAC hearings (Preliminary Conference
The
met with
it technically
the
Memoranda, 1985).
Does the town have
Curtis
Street water
If the answer is no to either
or financially
feasible for the
town to
provide resources to upgrade them?
Does the building
design present safety hazard from a
fire fighting standpoint?
Are the
sidewalk unsafe?
Curtis Street
roadbed and
answer to either question
fighting capabilities
is yes,
can the
town upgrade fire
or repair the road/sidewalk?
the following present health and safety hazards to
tenants or
other residents
of the
town:
building
as
opposed
to
smaller
Excusing the density, parking,
rate of
requirements?
2 1/2
amount
that
Do Proposition
a
improvements and
town
can
collect
Do any of
the future
The site location
vis-a-vis transportation and other services?
36-unit
If the
Constructing one
4-unit buildings?
growth, and greenbelt
provisions (capping the
in
local
taxes
to make
so on) supercede Chapter 774 provisions?
the towns regulations
and
requirements
Do
discriminate against
low and moderate income housing?
The town's
list of issues questioned the adequacy of:
public
and private access, water supply, fire protection, water pipes
and fixtures,
roads and sidewalks, public transportation, and
physical site conditions.
proposed
density
In addition,
appropriate
to
the
they asked:
community?
Is the
Can the
proposal be modified to meet stated needs?
Does the proposal
meet legitimate
Will the proposed
concerns of the community?
facility meet the needs of those it is designed to serve?
Two
days
of
hearings
took
place
in
July 1985.
Two more
hearing date were scheduled for August but were canceled.
parties reached
an agreement
and signed a stipulation during
that month (Stipulation, 1985).
the building
to 30
units.
The developer agreed to limit
This translated
with one wing shorter and consequently
southeast
site
line.
to a new design
further away
from the
This allowed for an emergency access
road to be constructed around the rear of the building,
requirement
developer
agreed
agreed
concerns by
to
to
corridors,
by
at
units
least
the
address
complying with
smoke detectors in
6
developer.
the
board's
also
agreed
to
a ZBA
In addition, the
fire
protection
all fire codes; and by installing
and
fire
corridors,
alarm
pull
heat
detectors in
stations
building, an 8 inch water main, and one fire hydrant
He
The
prohibit
in
the
on site.
parking on the interior access
driveway connecting to the emergency access road.
The developer agreed
spaces at
to
provide
10 feet by 20 feet each.
a turnaround so cars, vans,
and
exit without having to back up.
stipulations regarding
devices.
not
The ZBA
less
than
36 parking
He also agreed to provide
ambulances
could
enter and
The developer agreed to other
drainage, utilities,
and water saving
agreed, that in the event the decision was
appealed by any other party, it would defend the decision.
58
5.5 When are Negotiated Settlements Possible?
Of the 133 appeals recorded in the 1986 HAC study, 38 resulted
in negotiated settlements or stipulations.
described above,
it appears
Based on the cases
that settlements become possible
when certain conditions exist.
The most
obvious
subject to
condition
conditions.
developer agree that
is,
perhaps,
In this
a
permit
a
case, both
should
be
permit granted
the ZBA and the
granted.
Often,
conditions that render the project economically unfeasible can
be modified while the ZBA's interests are still met.
In fact,
half (22) of the 41 cases appealed to the HAC in which permits
had been granted with conditions unacceptable to the developer
were eventually settled (HAC data, 1986).
North
Attleboro
cases
provide
straightforward negotiations
were met.
In
protection.
achieve
both cases,
Without
adequate
Both the Sharon and
examples
of
relatively
in which both parties' interests
the ZBA
compromising
protection
were
was concerned
that
about fire
goal, the means to
modified
to
benefit the
comprehensive permits,
the ZBAs in
developer.
Although they
the Marshfield
low and
denied the
and Rockport
moderate income
cases acknowledged
housing in
the need for
their communities.
This
acknowledgement represented a starting point for negotiations.
In communities
where the
need is
not publicly recognized by
the ZBA, there is often no basis for negotiation, and hearings
center around
arguments over the 10% limit and whether or not
a need exists.
The most important condition for a negotiated settlement is an
understanding on the part of the ZBA, that it has much to gain
through
negotiations
Appeals Committee
and
nothing
gain
Marshfield case,
legal counsel
the Housing
for the developer
the ZBA's lawyer convinced the board
that the town would probably lose the case
and would
if
issues a decision in the developer's favor.
According to Anthony Matera,
in the
to
consequently be
better off
at the
HAC appeal
trying to convince the
developer to address some of its concerns (Matera, 1987).
In the
Rockport and
cases, the
ZBA and
Consequently,
permits.
Marshfield cases
the town
they
In
listed
most
is
the
many
cases,
first step in
appropriate
the
a
reasons
number
distinguished
already been
means
made
concerning
the
issue,
denying
the
reasons
are
that Chapter
for resolving the dispute, a
process
"proxy"
established, or
the
Once it is clear
negotiation
from
for
of
must
which issues are important to the town.
be
as many other
did not want the housing built.
legitimate and others are not.
774
as well
Legitimate issues can
issues
if
a decision
i.e.
a
be determining
a
precedent has
has been previously
moratorium.
In
the
Marshfield case,
drainage proved to be a major concern to the
town while the septic
Rockport,
the
ZBA
system problem
determined
needed to be addressed but did
that
was not
fire
not insist
addressed.
In
protection issues
upon the developer
complying with the parking space/unit ratio regulation.
In sum,
the following
conditions can provide useful starting
points for negotiations around a Chapter 774 appeal:
granted
with
unacceptable
a permit
conditions; an acknowledgement by
the ZBA that a need for low and moderate income housing exists
in the
communities; an understanding that both sides can gain
a lot through negotiations and may lose a
lot if
process
developer
continues.
In
addition,
the
community must determine the real issues to be
put aside
those that
for denying the permit.
the appeals
and
the
addressed, and
were added to "pad" the list
of reasons
CHAPTER 6.
CONCLUSION
Chapter 774
moderate
has resulted
income
throughout the
in the
housing
construction of 205 low and
projects
Commonwealth during
An additional 1543 units are under
in planning
comprising
(HAC data,
1986).
not exist.
construction and
been built
if the
While the first few years after the law's
court; very
to
untested
with
an
ultimately built; today we
see
The
process
comprehensive
1524 are
It is a commonly held belief
passage saw challenges in
experiment
units
the past seventeen years.
that most of these projects would not have
law did
11,266
permit
a
few developers willing
process;
very
is
and
few
units
different situation.
a
known,
legitimate
vehicle for getting low and moderate income housing built.
6.1 The Imperfect Nature of the Law
Many inadequacies of Chapter 774 and
process
document.
the law
have
been
discussed
gives to
obligation
in.
chapters of this
the Housing Appeals Committee.
to
of Appeals
grant
This
aspect
not only
comprehensive
obligation is not fulfilled,
step
previous
One important constraint is the nature of the power
gives local Zoning Boards
the
in
the comprehensive permit
of
the state
the
The statute
the right but
permits.
HAC has
If that
the power to
law is unpopular with many
community residents and
who
officials
feel
their
power is
has
only two
being unjustly usurped.
In
permit denial,
the local
can sustain
options: it
Committee
Appeals
Housing
the
contrast,
or it can
overturn that denial and order the local ZBA to grant a permit
as
for the project
community
lacking
was
it
the
Consequently,
proposed.
number of subsidized low and
minimum
as health
moderate income housing units, (as long
is
not
threatened)
the
law
in a
allows
and safety
a developer to build a
development of any size on any parcel of land.
The HAC has
no power
to order the developer to comply with regulations or
requests
that
would
make
the
project
better
meet
the
design
and
community's housing and non-housing needs.
If
we
acknowledge
this
fault
in
the
execution, what can we do to correct it?
giving
planning
authority
law's
Few
would advocate
to the Housing Appeals Committee.
The type of planning needed to ensure that a development meets
a community's
housing needs
and does
not result in negative
impacts, is best done on the local level.
must continue
The law, therefore,
to exist as a "stick," albeit an imperfect one.
The existence of this "stick," however,
provides an incentive
for a more positive approach to a negotiated solution.
Members
and
staff
of
the
HAC
community/developer team involved in
reach
a
negotiated
agreement.
an appeal
They
puts both parties in
has the
it is
sides to
be on
positions.
appeal.
Given
designed, can
community has time as
better than any
The developer
her as well as the knowledge that she
is very likely to win the
process, as
to attempt to
The law's existence and design
good trading
"stick" behind
every
acknowledge that the
solution reached by both parties will be much
they have the power to impose.
and
each
encourage
its
go on
bargaining
relatively equal
that
the appeals
for many months, the
chip.
Allowing both
footing is,
then, the more
positive aspect of Chapter 774.
The fall-back
position, for
those
actively
communities
solutions to
refuse to
who
provide
do
low
negotiate with
not
and
moderate
seek
income
and
work on
housing and
developers who come forward, is the
quasi-judicial "all or nothing" 774 appeals process.
Given the these two
and the
774 processes:
the
negotiated process,
quasi-judicial appeals process, how can procedures be
improved so that both function as efficiently as possible?
6.2 Timing Issues
The process
by
which
a
developer
obtains
a comprehensive
permit under Chapter 774 is prescribed by the law and has been
clarified by HAC and court decisions.
the
day
developer - applies
a
comprehensive permit to the
should be
day
The maximum time from
to
the
local
the
HAC
issues
for
much longer
a decision
In reality, however, the process
than the
time stipulated
appealed
often
have
often takes
in the statute.
public hearings are extended over several
in time,
Often
weeks.
Cases that
several hearing days.
Because the
Housing Appeals Committee is involved in several cases
one period
a
140 days or about four and one-half months (Statute
Summary, 1969).
are
ZBA
hearings on
one case
shorten the
appeals process?
at any
can be spread out
over several weeks.
Should we attempt to
not.
A
shorter
appeals process would upset the "trade-off
balance" between developers and
incentive
for
developers
order to save time.
Probably
to
communities
negotiate
by
removing the
with communities in
Once it is clear that a community
is not
willing to negotiate, however, the process should be conducted
as quickly as possible.
Most
believe
that
it
is.
Many
developers and
attorneys interviewed
stated that the appeals
process is not
dragged
conducted
manner.
sentiment.
John
Carney,
out
and
legal
is
counsel
in
a timely
for HAC, echoes this
"Attorneys know we hold hearings two
days a week"
and do not pressure us to hold them sooner than possible.
HAC
hearings
conducted
are
accordance
in
administrative procedure act of Chapter 30A.
that
some
appeals
are
(Carney,
responsible
1987).
believe that
for
One
attorney
that
efficient:
parties "try"
the cases
introducing evidence and witnesses
to be
Hearings go on for several days
agree
for the fact
As
Attorneys from either side may object if
evidence about
HAC
the
the
for several days of hearings, Carney
run
explains that the attorneys for both
and
with
they
introduced is irrelevant.
because both
parties and the
discussion is necessary (Carney, 1987).
interviewed
believes
the
process
is
very
"in light of other waits in the judicial process,
the wait [for
774
hearings
and
decisions]
is
very short"
(Matera, 1987).
6.3 Getting Projects Built:
The
--
evidence
91%
of
Negotiating Sooner and More Often
permits
resulted in built projects
(HAC
strong
following
argument
for
the
issued at the local level
1986)
data,
--
conclusion:
presents a
for more
projects to be built through the comprehensive permit process,
developers and
communities must be urged to negotiate so that
more permits are issued by the local ZBA
requested.
The "next
when they
are first
best thing" is a negotiated settlement
after an appeal has been filed:
the
HAC data
indicates that
only 69% of ZBA comprehensive permit denials overturned by the
66
HAC resulted
projects while 79% of the denials that
in built
were negotiated and settled resulted in built projects (1986).
In
addition,
negotiated
settlements result in projects that
are more acceptable to both the developer and the community.
Based on these findings,
a logical
step is
to encourage and
provide assistance for communities and developers to negotiate
before the permit is denied, while the public
is
taking
extent --
place.
This
probably does occur to a certain
the Rockport case is an example
assistance
of
a
third
Committee becomes involved
hearing process
--
but
without the
party "neutral." The Housing Appeals
as
a
negotiation
facilitator or
mediator only after the permit has been denied and the case is
formally appealed.
6.4 Recommendations
Negotiation
or
mediation
services
should
be
provided
to
communities while the 774 process is still at the local level.
In addition,
communities
determining whether
may
need
technical
incurring costs, relaxing standards, or a
combination of both, will best meet their short
needs.
This would
process to take place
great deal.
assistance in
create an
in which
and long-term
environment for a positive 774
all parties
stand to
gain a
Those gaining the most from this process are the
future
low
and
moderate
income
residents
of
development planned and accepted by the community in
exists.
a
housing
which it
METHODOLOGY
quantitative and qualitative
combines both
This thesis
analysis. Data was collected from books and reports; letters
data on Chapter 774 projects collected in 1978
and documents;
and 1986; and personal interviews.
The two data bases are similar in that the same questions were
asked of each Massachusetts municipality during two separate
periods in time. However, a small number of communities did
not respond to both studies. Therefore, the data collected in
the second study for the period between 1969 and 1978 is not
identical to the data collected in the first study. For this
reason, a comparison between the two time periods was not
The data was, in my opinion, of sufficient quality
possible.
to compare the first eight years of the law's existence with
its entire eighteen year life and make the general conclusions
stated in the text.
Case studies were used in an attempt to generate general
conclusions based on qualitative analysis. They were chosen
randomly and
through
suggestions
made
by individuals
interviewed.
An attempt was made to choose cases that varied
in terms of year permit application was made, type of
developer, type of housing, and whether or not the permit was
denied or issued with conditions.
BIBLIOGRAPHY
BOOKS AND REPORTS
Barr, MacDonald, The Massachusetts Zoning Appeals Law:
Lessons of the First Three Years, Massachusetts Department of
Community Affairs, August, 1976.
Chapter 774: Four Years Later, An Interpretive Analysis of
the Law and a Review of Activities, Metropolitan Area Planning
Council, Boston, Massachusetts, August 1974.
The Massachusetts Legislature:
Engler, Robert, "Chapter IV,
774 and the Aftermath,"
Subsidized Housing in the Suburbs:
Department of
Legislation or Litigation?", Massachusetts
Community Affairs, 1972.
HAC Report on Number of Communities
10% minimum), December, 1985.
HAC Monthly Report, Memo from
January 30, 1987.
Edwin
in Compliance (over the
Kelly
to
Hollis Young,
Rogers, Allan G.,
"Snob Zoning in Massachusetts" in 1970
Annuam Survey of Massachusetts Law, 1970.
Ruben, Elisabeth A.,
and Williams, Constance, Comprehensive
Permits for Housing Lower Income Households in Massachusetts, de
Citizens
Housing
and
Planning
Association,
Boston,
Massachusetts, December 1979.
DOCUMENTS
Chapter 774
of the Acts of 1969, The
Massachusetts, a summary and the statute.
Commonwealth
of
Rules and Regulations, Chapter 30A, 760 CMR 30, Office of the
Secretary, Department of Community Affairs, Commonwealth of
Massachusetts, January 1, 1978.
State Superior Court Decision, Board of Appeals of Hanover vs.
Housing Appeals Committee in the Department of Community
Affairs and others; Board of Appeals of Concord vs. Housing
Appeals Committee in the Department of Community Affairs and
another, Tauro, C. J. P-7754, S-7785, Publication # 6699-67100-3-73-CR.
Supreme Judicial Court Decision,
Wellsley vs. the Housing Appeals
Case No. 2616, 4/20/82.
Zoning Board of Appeals of
Committee and others, SJC
INTERVIEWS
Massachusetts
Chairman,
Corman,
Murray
Committee, November, 1986.
Carol
Baldassari,
November, 1986.
Don Borchelt,
1986.
Area
Metropolitan
Housing
Planning
Appeals
Council,
Area Planning Council, November,
Metropolitan
Philip Herr, Massachusetts Institute
1986.
Clark Zeigler, Massachusetts
1986, and April 30, 1987.
of Technology, November,
Housing Partnership, November,
John Carney, Legal Counsel, Massachusetts Housing Appeals
Committee, April 14, 1987, and April 30, 1987.
Emily Kane,
1987.
Intern to the Housing Appeals Committee, January,
DATA
Data collected by
Committee, 1986.
Emily
Kane
for
the
Housing
Appeals
HOUSING APPEALS COMMITTEE FILES
Information for each of the case studies was taken from
Housing Appeals Committee file (located at the Executive
Office of Communities and Development, 100 Cambridge Street,
Boston, Massachusetts, llth floor) and personal interviews.
Barnstable
File name: Barnstable 774-1: Leisure Village of
Barnstable Zoning Board of Appeals.
Cape Cod vs.
Decision on
Town of Barnstable Zoning Board of Appeals,
Appeal No. 1971-54: Lawrence and Eleanor Laskey d/b/a Leisure
Village of Cape Cod, 9/21/71.
Housing Appeals Committee Hearing Transcripts, Lawrence G.
Laskey and Eleanor Laskey d/b/a Leisure Village of Cape Cod
vs. Bridgewater Board of Appeals, Boston, MA, 2/7/72
Interview:
4/10/87.
Michael
Attorney
Dunning,
for
Lawrence Laskey,
Bridgewater
Gerald P. Zide vs. Bridgewater
Bridgewater 774-1:
File name:
Zoning Board of Appeals.
Decision letter to Mrs. Jennie W. Carroll, Town Clerk,
Bridgewater, from Harold G. Peter, Acting Clerk, Zoning Board
of Appeals, 3/24/72.
Motion to Dismiss (no date).
Housing Appeals
date).
Committee
Order
on
Motion
to
Dismiss (no
Canton
Canton 774-1:
File name:
vs. Canton Board of Appeals.
Meeting House Village Associates
Zoning Board of Appeals, Canton, MA, Meeting House Village
Associates, John and Leo Corcoran, Request for Comprehensive
Permit Decision, 8/7/80.
Lashley,
Donald
Interview:
Development Company, 4/10/87.
Project
Manager,
Corcoran
Mashpee
Mashpee 774-1:
File name:
Board of Appeals.
Quaker Run Associates vs. Mashpee
Town of Mashpee Board of Appeals, Decision on Petition of
Marvin Blank and Sidney Fagelman d/b/a Quaker Run Associates,
Case # SP 81-5-014, 6/3/81.
Letter from Michael Dunning to John Carney, 7/5/83.
Interview:
4/10/87.
Michael
Dunning,
72
Attorney
for
the developer,
North Attleboro
North Attleboro Housing
File name:
Attleboro Zoning Board of Appeals.
Authority
vs. North
Town of North Attleboro Zoning Board of Appeals, Decision No.
712 Re:
Application of North Attleboro Housing Authority,
2/8/82.
Letter to the Housing Appeals Committee from
Attorney for the Housing Authority, 2/25/82.
Robert Ricco,
Consent Judgement, North Attleboro Housing Authority vs. North
Attleboro Zoning Board of Appeals, 4/22/82.
Sharon
Sharon 774-1:
File name:
Board of Appeals.
Sharon Housing Authority vs. Sharon
Town of Sharon Board of Appeals, Sharon Housing Authority
Decision of Application for a Comprehensive Permit, 8/19/82.
Letter to the Housing Appeals Committee from Frank Sullivan,
Attorney for the Housing Authority, 9/3/82.
Stipulation, Sharon Housing Authority vs. Board of Appeals of
the Town of Sharon, 9/?/82.
Marshfield
File name: Housing for Independent Living Inc. vs. Marshfield
Board of Appeals.
Marshfield Board of Appeals, Case
Independent Living Decision, 4/30/80.
#
80-16,
Housing
for
Letter to Robert Galvin, Attorney for the Marshfield Board of
Appeals, from Anthony Matera, Attorney for the developer,
6/17/80.
Stipulation, Housing for Independent
Appeals, Town of Marshfield, 9/30/80.
Living
vs.
Board of
Rockport
Rockport 774-1: Curtis Street Associates Limited
File name:
Partnership vs. Rockport Board of Appeals.
Town of Rockport
Decision, 4/29/85.
Board
of
Appeals,
Petition
No.
850303
Supplemental Information Memoranda submitted in connection
with Comprehensive Permit Application to Rockport Board of
Appeals, 2/15/85, 3/26/85, 4/12/85.
Appelants Preliminary Conference Memorandum, 6/24/85.
Appellee Statement of Issues, (no date).
Stipulation, Pidgeon
Associates, 8/7/85.
Cove Ledges, Rockport, MA, Curtis Street