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Wednesday, September 14, 2016

Defenseless, In the Gathering Storm

By Robert M. Ruzzo
Sarah Connor: “What did he say?”
Gas Station Attendant: “He said there is a storm coming in.”
Sarah Connor: “I know.”
Closing scene from “The Terminator” Orion Pictures, 1984

It’s time to connect some not altogether random thoughts as the haze of summer recedes.
Summertime, when the living was easy, this year also entailed: the death throes of the municipal planning defense doctrine, the expiration of zoning reform efforts in the state Senate and the demise of proposed housing production legislation launched through the efforts of the Massachusetts Housing Partnership (“MHP”) and carried forward by a number of housing advocacy groups.
What could it all mean?
Summer had not yet technically begun when the Appeals Court officially pulled the plug on the attempt to assert a “municipal planning defense” in order to deny a Comprehensive Permit application filed under Chapter 40B (the Commonwealth’s “Affordable Housing Law”) in Eisai v. Housing Appeals Committee (“HAC”).
After years of largely lying dormant since its first pronouncement in the Harbor Glen decision in 1982 (“Harbor Glen”), the  planning defense sprang back to life in Stuborn Ltd. P’ship v. Barnstable Bd. Of Appeals (“Stuborn II”) and even enjoyed a short lived day in the sun in 2009, when the 28 Clay Street v. Middleborough decision applied the defense in a land use setting far less exotic than either Harbor Glen (750 acre former military base) or Stuborn II (waterfront property).
While admittedly arcane, the municipal planning defense afforded its fans the promise of a “different path”- a means of achieving the directional goals of the Affordable Housing Law while injecting a degree of local control consistent with the public expectations of a home rule state.
Hopes (Fears?) for a broader application of the doctrine were dashed by two HAC decisions in 2014.  It was clear from the these two decisions that the HAC had come not to praise the municipal planning defense, but to bury it.  The Appeals Court, bound by the deferential standard of review for admistrative law appeals, had little choice but to follow suit.  As an added bonus, the unusual procedural posture of the Eisai case introduced a further complication to the already byzantine world of standing under Chapter 40B, but let’s save that tale for another day(s).
Andover’s planning efforts, which were the subject of the Eisai decision, met with what seemed to be a particularly harsh fate at the hands of the HAC.  While Andover was below the 10% Subsidized Housing Inventory threshold at the time of the permit application, it had at one time been above that magical number, although the HAC concluded that this was not as a “result of the town’s planning efforts” but instead despite Andover’s master plan and affordable housing plan.  A pretty neat trick, to say the least.
Dismissing the town’s well documented planning work and “longstanding efforts to preserve” the site and the area in question for commercial and industrial uses, the Court affirmed a Superior Court decision to let stand a HAC determination that the last vacant lot within a commercial subdivision should become a housing development.  This was at least in part because the Andover zoning board could not “point to possible foregone employment associated with future businesses that might be reluctant to locate in a subdivision whose future is uncertain.”
A cynic might protest that the best defense for a municipality under this line of thinking would be to poorly propose and half-heartedly market such commercial zones, and thereby preserve the ability to claim that any incursion into a commercial area jeopardized the coherence of the planning exercise as a whole.
Tellingly, the Appeals Court echoed the HAC’s complaint that a “major shortcoming” of Andover’s planning efforts was the fact that “multifamily housing is not permitted as of right anywhere in the town.”
Which shifts the focus back to Beacon Hill and competing efforts to address our distressingly high housing costs in Massachusetts via legislation.  The Senate’s efforts to enact zoning reform advanced one step further than in the last legislative session.  In 2014, a similar bill was reported out of committee favorably.  Before the expiration of this year’s formal session, zoning reform legislation that had been revised substantially to address some (but far from all) criticisms of real estate industry groups was actually passed by the upper chamber.
Nonetheless, at the end of the (legislative) day, we collectively remained in the same position that we were in two years prior: in a low interest rate, high demand, overheated housing market, with a fundamental zoning law incapable of producing new units in sufficient numbers and devoid of any meaningful link between planning and zoning.  Our ersatz solution, the Affordable Housing Law, becomes increasingly overtaxed, as it is called upon to create more market rate housing than it was ever designed to produce.
A storm is coming in, indeed.
While it is always difficult to predict the future of such things, the proponents of the Senate’s zoning reform legislation certainly have no reason to feel disheartened.  They will most assuredly be back in force when a new legislature convenes in January.  Some type of comprehensive zoning legislation is inching ever closer to reality.  Fortune favors the prepared mind.
Also returning to the hearing rooms next session will be housing advocates who, building upon the foundation of a research paper published by MHP some two years ago, advanced legislation that would have, among other things, required every municipality to have a certain percentage of its land area zoned for multi-family housing.
Is there any sign of potential progress?  Any hope for the elusive common ground?
Well, ironically the aforementioned provision requiring as of right multi-family zoning is the very type of provision that, had it been in effect in Andover at the time of the HAC’s initial decision, may have (indeed should have) allowed Andover’s assertion of the municipal planning defense to pass muster.
So there’s always hope… even for the municipal planning defense.
This article was written by Robert Ruzzo, Senior Counsel in the Boston office of Holland & Knight LLP, and it will appear in an upcoming issue of REBA News.  Bob can be contacted by email at

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