The Housing Watch…The Most Potentially Potent Footnote in Affordable Housing

By Robert M. Ruzzo

By all accounts, the so-called “GLAM Test” under Massachusetts General Laws Chapter 40B (“Chapter 40B,” the “Affordable Housing” Law, or the “Comprehensive Permit Law”), one of the

hottest topics in affordable housing over the past few years, is going to continue to attract attention in the coming months.  As affordable housing aficionados know, the “General Land Area Minimum” (hence, “GLAM”) test is one of three safe harbors provided for under the Affordable Housing Law.  Under Chapter 40B, this safe harbor exists when “low or moderate income housing exists… on sites comprising 1.5% or more of the total land area zoned for residential, commercial or industrial use.”

For years, this safe harbor was relatively unknown, particularly when compared to the widely recognized “10% test” under the statute.  Two years ago, even the Housing Appeals Committee (“HAC”) had to concede in Newton Zoning Board of Appeals v. Dinosaur Row LLC that:  “the General Land Area Minimum is a complex measure, which has not been addressed extensively during the 45 year history of the Comprehensive Permit Law.”  The third Chapter 40B safe harbor, the Annual Land Area Minimum, remains a veritable affordable housing “Sasquatch,” whose existence is alleged, but as yet remains unverified.

After an extensive internal review, the Department of Housing and Community Development (“DHCD”) published “Draft Guidelines for Calculating General Land Area Minimum” (the “GLAM Guidelines”) on its website on Friday, May 5, 2017.  The GLAM Guidelines are intended to provide straightforward assistance to municipalities.  In addition to the eight pages of guidance, which includes a new definition of “Group Home,” the GLAM Guidelines were accompanied by two appendices.  Appendix A consists of twelve pages of technical instructions, while Appendix B walks through an “Example Calculation,” complete with illustrations.  DHCD will be accepting written comments on the GLAM Guidelines (including the appendices) through July 5, 2017.

The publication of these eagerly anticipated GLAM Guidelines provides an appropriate opportunity to step back and reflect upon some of the larger issues surrounding the Affordable Housing law, and the statutory safe harbors in particular.

As noted recently in a cogent presentation by the Massachusetts Housing Partnership (“MHP”) at a meeting of the CHAPA Housing Production Committee, Chapter 40B has been the vehicle for the production of more than 70,000 housing units since 1969.  The future, however, is not as bright in MHP’s view, because the potential for “new 40B development is diminishing relative to projected housing need.”

Why?  According to MHP the “gap” (between projected housing need and the remaining Chapter 40B housing development potential) “is greatest in Metro Boston where 26 communities have permitted enough subsidizing housing” to cross the 10% safe harbor threshold.  According to MHP, the remaining development potential under Chapter 40B in the Metropolitan Area Planning Commission region is approximately 21,000 units.

Of course, under the 2007 Boothroyd v. Zoning Board of Appeals of Amherst decision, a municipality may nonetheless elect to grant a Comprehensive Permit even if it has satisfied the 10% test.  But that is a pretty thin reed to grasp in our current housing affordability wind tunnel.

To make your affordable housing day even brighter, a number of the ten communities identified by MHP as having the “most remaining Chapter 40B Development Potential” in the Metro Boston area are among the very communities that have recently asserted the GLAM safe harbor (Arlington, Newton, and Waltham).  For these municipalities and others similarly situated, however, an underappreciated danger lurks behind the assertion of the GLAM safe harbor based upon current Subsidized Housing Inventory (“SHI”) counting methodology. Such arguments may run headlong into the most potentially potent footnote in all of affordable housing.  

First, some full disclosure.  Your correspondent has previously suggested that the treatment of rental developments under the GLAM test may no longer make sense in era of smart growth and concentrated development.  Remember that under current SHI practice, rental housing and ownership units are treated very differently.  Assuming all other requirements to gain listing on the SHI have been met, all units in a rental housing development are counted on the SHI, while homeownership developments are counted only on a proportionate basis. The HAC politely questioned this approach as early as 2003, in footnote 6 of Arbor Hill Holdings Limited Partnership v. Weymouth Board of Appeals, stating “it would seem anomalous to count all of a very large [rental] lot containing only a very small number of affordable units.”  

But footnote 6 in Arbor Hill pales in comparison to the suggestion of the Supreme Judicial Court in footnote 12 of Zoning Board of Appeals of Sunderland v. Sugarbush Meadow, LLC, 464 Mass. 166, 178 (2013).  There, the SJC expressly left open the issue of how counting should be performed for SHI purposes, declaring:  “we need not address whether the inclusion of non-subsidized housing units in the SHI is permissible under the act…(emphasis added).”  Thus, the issue of SHI counting methodology under the 10% test remains an open question, as far as the SJC is concerned.

Certainly any counting methodology employed by DHCD over many years would be entitled to a great deal of deference.  Nonetheless, a judicial rebuke to such a long-standing regulatory practice would not be without recent precedent. As development lawyers learned back in 2007 in the Chapter 91 context, the SJC is not hesitant to let it be known that “the principle of according weight to an agency’s discretion” is “one of deference, not abdication” stating further that “this court will not hesitate to overrule agency interpretations of statutes or rules when those interpretations are arbitrary or unreasonable.”  Moot v. Department of Environmental Protection, 448 Mass. 340, 346 (2007).

By aggressively asserting the GLAM safe harbor, a municipality may raise the entire issue of SHI counting methodology before the state’s highest court for the first time.  So as we enter upon the “Summer of GLAM” remember, it may be time to re-examine the most important footnote in affordable housing as well.

“The Housing Watch” is a regular column from Bob Ruzzo,  senior counsel in the Boston office of Holland & Knight LLP.  He possesses a wealth of public, quasi-public and private sector experience in affordable housing, transportation, real estate, transit-oriented development, public private partnerships, land use planning and environmental impact analysis. Bob is also a former general counsel of both the Massachusetts Turnpike Authority and the Massachusetts Housing Finance Agency; he also served as chief real estate officer for the turnpike and as deputy director of MassHousing.”  Bob can be contacted by email at robert.ruzzo@hklaw.com.

Standing for Environmental Appeals: One Size Does Not Fit All

Luke H. Leger

Real estate lawyers pay close attention to establishing standing in agency hearings and court. Standing is the first hurdle and failing is fatal. This is especially so in environmental cases.

 

It is tempting to think there must be one universal rule, convenient to memorize, on who has standing

to appeal environmental decisions within state agencies and then to court. In fact, there are similarities but subtle differences in the rules among Massachusetts agencies, even within MassDEP for its various kinds of permits and enforcement.

 

Consider the general statutory framework for administrative appeals of state agency decisions and then judicial review of final agency actions. The Administrative Procedures Act, G.L. c. 30A, §10 governs adjudicatory appeals generally and also allows persons substantially and specifically affected by appeals to intervene in them. Section 10A, the “Ten Person Right to Intervene,” allows a group of ten residents to intervene in adjudicatory proceedings where damage to the environment is or may be an issue. Section 14 authorizes a person aggrieved by a final agency decision to appeal to court.

 

Often confused with the Ten Person Right to Intervene, G.L. c. 214, § 7A is the so-called “Ten Citizen Suit Statute.” It gives any ten people domiciled in the Commonwealth legal standing to pursue a civil action in Superior Court to prevent environmental damage that is occurring or imminent. Note the different wording in these two laws, and the legal import (e.g. residents versus domiciliaries). This amounts to statutory standing to enforce state and local environmental laws and regulations on the books, not a generalized right to a clean environment.

 

Now we examine the state Wetlands Protections Act (WPA), Clean Waters Act (CWA), and G.L. c. 91 Waterways and Tidelands laws. All three are administered by MassDEP to protect wetlands, water resources and related rights. MassDEP regulations governing appeals under these programs differ in important ways with respect to standing.

 

A quick reading of these rules gives a false sense of uniformity. The universe of persons who may obtain an adjudicatory hearing for a WPA Order of Conditions or action, CWA Water Quality Certification (WQC), or Chapter 91 License generally includes some or all of the following people: applicants, property owners, persons aggrieved, ten resident groups, and certain governmental or private organizations. The regulations diverge in their specifics.

 

For example: who may request an adjudicatory hearing as of right. The WPA rules give applicants, property owners, and local conservation commissions the right to this trial-type hearing. The CWA rules, in contrast, list applicants and property owners as having this right. In greater contrast, the Chapter 91 rules say only an applicant can appeal, either one which has a demonstrated property right in the affected lands, or which is a public agency.

 

All three regulatory schemes grant standing to “aggrieved persons.” They must demonstrate that, due to an act or failure to act by MassDEP, they may suffer an injury in fact, which is different in type or magnitude from that suffered by the general public, and which is within the scope of the interests identified in the governing statute and regulations. This is classic standing.
 
The WPA rules add an extra layer, whereby an aggrieved person must have participated in writing in the permit proceedings. The CWA rules, with another twist, confer standing on aggrieved persons who have submitted written comments during the public comment period (unless the appeal is based upon new substantive issues arising from changes in the scope or impact of a project which were not apparent from the public notice). The Chapter 91 rules give standing to aggrieved persons so long as they participated in writing during the public comment period and can demonstrate that, as a result of issuance of License, they may suffer an injury in fact which is within the scope of the interests protected by Chapter 91 and G.L. c. 21A.

There are some liberal standing rights for citizen groups, but they read differently. Under the WPA, ten residents of the municipality where the project is proposed may request an adjudicatory hearing, so long as at least one member of the group has participated in writing during the prior proceedings. The CWA provides standing for “ten persons of the Commonwealth pursuant to G.L. c. 30A” so long as at least one member of the group has submitted written comments during the public comment period. Chapter 91 confers standing upon “ten residents of the Commonwealth, pursuant to G.L. c. 30A, § 10A” provided five members reside in the municipality where the licensed activity is located, all members of the group have submitted comments during the public comment period, and each member of the group files an affidavit stating her intent to be part of the group and represented by its authorized representative.

Standing also is available to government officials, agencies or environmental organizations. Under the CWA, governmental or private environmental organizations which have submitted written comments during the public comment period have standing (again, the prior written participation requirement is waived for appeals based upon new substantive issues arising from changes in the scope or impact of a project which were not apparent from the public notice). Chapter 91 licenses may be challenged by a municipal official in the affected city or town who has previously submitted written comments during the public comment period and, in certain instances, the state Office of Coastal Zone Management and Department of Conservation and Recreation.

These details matter. MassDEP’s Presiding Officers routinely undertake a close analysis of standing. Expect this. One recent MassDEP Final Decision concluded that a ten-person group must allege environmental harm to enjoy standing to appeal a Chapter 91 License, although many interests protected by Chapter 91 are not per se “environmental” (e.g., navigation, water access, and livelihood interests). In The Matter of Webster Ventures, LLC, Docket No. 2015-014, Final Decision (June 15, 2016).

In another recent Final Decision, MassDEP found that a petitioner lacked standing to challenge a WQC as a “person aggrieved,” due to his failure to submit written comments, yet granted him standing as being a property owner. In the Matter of Tennessee Gas Pipeline Co., LLC, Docket No. 2016-20, Final Decision (March 27, 2017).

Ultimately, appealing a final agency action to court requires plaintiffs to meet the traditional standing test of injury-in-fact to an interest cognizable by law or rule. This means proving claims of particularized harm or prejudice to substantial individual rights.

Do not assume that a party before an agency under state environmental laws has automatic standing to challenge the resulting agency decision in court. This was driven home by the SJC in Board of Health of Sturbridge v. Board of Health of Southbridge, 461 Mass. 548, 559 (2012).

Plaintiffs with standing as a ten-person group for an adjudicatory hearing at MassDEP, therefore, had better be ready to individually establish “old-fashioned” standing in court.

Careful practitioners never take standing for granted. Read the statute and agency regulations for the pleading and proof requirements, consult the court cases and agency decisions, and leave time to satisfy yourself that the petitioner(s) have (or lack) the requisite standing. And remember that, while alleging personalized harm may be unnecessary to establish statutory or rule-based standing before the agency below, it is always necessary to get your day in court.

Luke Legere is a partner with McGregor & Legere, P.C. He helps clients with a broad range of environmental, land use, and real estate issues including coastal and inland wetlands and waterways, zoning, subdivision, development agreements, conservation restrictions, state and local enforcement actions, stormwater, solid waste, hazardous waste, air pollution, site remediation, regulatory takings, affordable housing, and energy facility siting. A regular contributor to REBA News, Luke can be contacted by email at llegere@mcgregorlaw.com

CFPB: Encryption and Data Security Requirements (Audio Only)

From The 2015 REBA Spring Conference

Rick Diamond; Christopher J. Gulotta; Richard M. Reass

The CFPB, the OCC, the FDIC and the Federal Reserve requires lenders to be compliant with federal consumer protection and privacy laws. Lenders will look to conveyancing attorneys to validate their compliance with these regulations. Our panel will address how law firms can start the compliance process; implement data security controls; develop written policies; and conduct onsite security assessments. These experts will describe how to take action now to protect conveyancing practices under the new guidelines from the sophisticated scams.

My Cousin Vinnie Explains Effective Communication

By Paul F. Alphen

My very patient and understanding wife gets flummoxed by my insatiable appetite for attending

sporting events, and she has attempted to impose injunctions on arbitrary and capricious ticket purchases. Nevertheless, when a certain Saturday morning in December rolls around each year I can be found behind the keyboard waiting to find reasonably priced tickets for games in America’s Most Expensive Ballpark. Consequently, my Cousin Vinnie, the suburban real estate attorney, and I were able to enjoy a nice spring evening in the ballpark watching the fourth highest payroll in the MLB.

Vinnie was intrigued by the lobster offerings now available inside the park. Me, not so much. I had tried the fried clams twice, but I have since reverted to standard issue hotdogs. Vinnie was stuffing lobster poutine (whatever that is) in his mouth while monitoring the beer inventory accumulating under his seat. “Paulie” Vinnie announced, “I finally figured out what makes our profession unnecessarily difficult”. I couldn’t wait to hear the revelation. “People don’t communicate. It became apparent to me today when I had a nice conversation with Town Counsel for Podunk. Her client had asked her to look into the historical conditions of approval related to my client’s property, and she called me questioning if my client could proceed with his planned development. I discussed the issues with her, and she listened. She asked questions, and she listened. I described the case of Patelle v. Planning Bd. of Woburn [20 Mass. App. Ct. 279, 480 N.E.2d 35 (1985)] and landowner’s ability to reconfigure lots within a subdivision. She contemplated the situation, and said ‘I don’t think there is a problem here.’ After we finished the phone conversation it occurred to me that what had just happened had become a rarity.  I was able to discuss the relevant law and legal principals with counsel on the other side (as I never think of the Town of Podunk as an ‘adversary’), and counsel listened, and we were able to agree and move forward.”

I agreed with Vinnie that the ever increasing practice of dropping e-mail bombs on opposing counsel had weakened the overall camaraderie of the bar. We don’t get to see each other, or even speak with each other, as often as we should. I told Vinnie that I don’t think it is just a coincidence that when working on deals with attorneys that I see at REBA meetings, or at meetings of the estimable Merrimack Valley Conveyancer’s Association, that the conversations are always civil, and the solutions forthcoming.  

We watched Mookie Betts hit a single, and Vinnie retrieved another beverage from his inventory.  “I am not perfect” said Captain Obvious, “I still lose my temper once a year when some jack-of-all-trades calls to tell me how to practice law, but I am much more likely to take the time to consider the views of opposition counsel when counsel is willing to engage in intellectual discourse, as opposed to those who attempt to berate and bully me.”

Again, amazingly, I found myself in agreement with Vinnie.     

A former REBA president, Paul Alphen currently serves on the association’s executive committee and co-chairs the long-range planning committee.  He is a partner in the Westford firm of Alphen & Santos, P.C. and concentrates in residential and commercial real estate development, land use regulation, administrative law, real estate transactional practice and title examination .As entertaining as he finds the practice of law, Paul enjoys numerous hobbies, including messing around with his power boats and fulfilling his bucket list of visiting every Major League ballpark.  Paul can be contacted at palphen@alphensantos.com.

Henry H. Thayer: A Remembrance

By Daniel J. Ossoff

Henry H. Thayer, a giant of the Massachusetts real estate bar and a former President of REBA (then the Massachusetts Conveyancers Association), died March 26, 2017, 20 days shy of his 80^th birthday. 

Henry H. Thayer,

Henry was a 1958 graduate of Harvard College and a 1963 graduate of Harvard Law School.  Between college and law school, Henry served in Korea from 1959 to 1960.  That represented a portion of a long military career – of which Henry was understandably very proud – that saw Henry serve in the U.S. Army Reserve for 33 years, enlisting as a Private in 1955, receiving his commission as a Second Lieutenant in 1958 and retiring with the rank of Colonel in 1988. A member of the Field Artillery branch, Henry also participated in Army Intelligence and the Foreign Liaison Service and was awarded the Meritorious Service Medal in 1988.

Upon receiving his J.D. from Harvard Law School, Henry joined Rackemann, Sawyer & Brewster, and he spent his entire legal career at Rackemann.  Henry was a part of the last generation of title experts and conveyancers who grew up largely in the pre-title insurance age.  Younger than many of them – if not in age than certainly in appearance and spirit - Henry learned from – and quickly joined the ranks of – that group of notable members of the real estate bar as Abe Wolfe, Orrin Rosenberg, Wiley Vaughan, Norman “Shorty” Byrnes and others.

Henry was the driving force behind updating and bringing back into use Crocker's Notes on Common Forms, editing the eighth and ninth editions for MCLE.  In addition to serving as president of the Massachusetts Conveyancers Association in 1988, he received the MCA's highest honor, the Richard B. Johnson Award, in 1995.  He was also a president of the Abstract Club, and was a long-time and enthusiastic participant on the Club’s executive committee.

In addition, Henry served for many years as chair of the Joint Amicus Committee of both the MCA – later REBA – and the Abstract Club.  As noted by Chief Justice Margaret Marshall when she poked her head into the 125^th Anniversary Dinner of the Abstract Club in 2008, Henry was absolutely unique in honoring the principal that briefs – most notably those submitted by Henry on behalf of the Joint Amicus Committee – should be brief.  Henry was also a fellow in the American College of Real Estate Lawyers, elected to that group in 1984.

Among his many philanthropic and charitable endeavors, Henry perhaps valued most his work with The Cathedral Church of St. Paul in Boston, where he served as chancellor from September 2005 through January 2013 and was a member of the Cathedral’s Leadership Development Institute. In addition, Henry offered his much needed love and support to St. Paul’s Church in Brockton, MA. 

Those are the facts, but those are only a small part of what his many friends and colleagues will remember about Henry.  His fellow workers at Rackemann will remember the constant knocking on Henry’s always open door, with the knock inevitably greeted with a “What to you got?”  Or, if he was feeling particularly perky that day, a “Come forth and you shall be heard.  God save the Commonwealth of Massachusetts.”  Greetings which could be intimidating to young attorneys at Rackemann as they approached the “great man”.  But which one and all quickly grew to understand simply meant that Henry was ready to drop everything that he was doing so that he could assist you with your question or problem, which, as soon as your knock was heard, became the most important thing on his desk at that moment.  And it was not just those within his own firm to whom Henry extended his generosity.  His phone would ring constantly with questions from fellow members of the real estate bar.  Henry invariably dropped everything and took the call on the spot, and shared freely of his knowledge and experience.  The one word which inevitably comes up in discussions reflecting on Henry’s accomplishments and his contributions to our legal community is “generosity.”  Henry gave freely of his time to all – almost to a fault if that is possible.

Henry’s generosity was by no means limited to other members of the bar.  He shared equally of his time with anyone who sought his guidance or advice.  Henry was absolutely oblivious to status.  At Rackemann he was noted for treating everyone equally and as his equal:  the folks in the mailroom, the secretaries and receptionists, his fellow attorneys from the newbies right out of law school to the most senior partners, and, of course, his cherished team of title examiners. The service that was held for Henry at St. Andrews Episcopal Church in Wellesley on April 12^th was notable in part for the impressive gathering of the best of the real estate legal community that was represented there.  But it was every bit as notable for the many members of the support staff at Rackemann who made the effort to attend the service for Henry out of a show of respect for a man who always showed them the utmost respect and kindness. 

His generosity also extended in very real and tangible ways to those less fortunate in our community.  Just as he couldn’t resist dropping everything for every knock on his door or call that came in from a fellow member of the real estate bar, he also found it extremely difficult to turn down the various pro bono cases that came his way. For many years Henry participated in the BBA's Volunteer Lawyers Project.  He also contributed many hours of work over several years providing pro bono service to the Dudley Street Neighborhood Initiative, serving as eminent domain counsel in connection with the rejuvenation of the Dudley Triangle neighborhood in Roxbury and Dorchester. In recognition of time that he donated to so many causes, Henry received the Boston Bar Association’s Pro Bono Award in 1991 and the Massachusetts Bar Association's Pro Bono Award in 1998.

We will also remember fondly Henry’s love of railroad history and his love of rail travel.  If there was a way to get where he wanted to go by train, Henry was on that train and not in his car or in an airplane. Of course, his love of all things railroad evolved into his expertise in the law of railroad titles, a subject on which he wrote and lectured extensively and on which so many members of the bar looked to Henry for guidance.  There hung in Henry’s office for years a framed map entitled “G. Woolworth Colton’s Series of Railroad Maps No. 2, Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut and Lower Canada” published in 1861.  For those who knew him well, there is no doubt in their minds that Henry had committed that map to memory, as he was able to recite, without reference to notes, to files or to his famous box of index cards, the history of rail lines throughout our part of the country – and many from far afield as well.

But there was, of course, still more to Henry for those who practiced with him, enjoyed REBA and Abstract Club activities with him, or who counted him as a friend.  There was the way he wrote a letter.  His letters were beyond conversational – each sentence being a separate paragraph with bits of wisdom sprinkled throughout but with no excess formality and – most of all – no excess verbiage.  It didn’t matter if the letter was one of his many friendly missives to his fellow members of REBA or the Abstract Club, or was a letter to the Chief Justice of the SJC or the Governor of the Commonwealth.  The style was the same and unquestionably Henry’s.  And, of course, there was his quirky and at times unconventional wit.  He loved to share a joke and have a good laugh – occasionally at his own expense but not at the expense of others.  His love of humor – the sillier the better - and his tendency towards mischief, was truly infectious and made it a joy to be in his company.

Above all, Henry remained throughout his life, during good times and tougher times, the most humane of men, always kind and thoughtful, concerned more about the welfare of others than about himself.  For those who had the honor and privilege of knowing him well, we can’t imagine that there will ever be another Henry.  He will be profoundly missed.

Rackemann Sawyer & Brewster partner and former REBA president Dan Ossoff delivered the remarks above at a meeting of the Abstract Club on May 8, 2017

 

Recent Developments in Massachusetts Case Law (Audio Only)

 

Recent Developments in Massachusetts Case Law (Audio Only)

 

Philip S. Lapatin

From the 2017 REBA Spring Conference

May 1, 2017

Housing Court Chief Justice Timothy Sullivan discusses recent developments and future plans for the Housing Court