Developer of 43-Unit Condominium in Woods Hole Prevails on Presumptive Standing in the Appeals Court

Kimberly A. Bielan

In July 2022, the Appeals Court issued a decision affirming the Barnstable Superior Court’s judgment in favor of condominium

developer-declarant, Woods Hole Partners, LLC (“Developer”), in the matter of Epstein v. Zoning Board of Appeals of Falmouth, Appeals Court No. 21-P-708, 2022 WL 2720163 (2022). The decision effectively greenlights the project – a 43-unit residential condominium located in Woods Hole – to proceed.

In 2019, the Developer obtained a special permit under the Falmouth Zoning Code (“Zoning Code”), authorizing it to develop a 5.4-acre parcel of land in Falmouth’s Business Redevelopment Zoning District for multifamily use up to eight units per acre. The project will satisfy all the Zoning Code’s dimensional requirements. Specifically, the special permit authorized the Developer to construct a 43-unit residential condominium, 39 units of which will be age restricted and 4 family units to be added to the Town’s subsidized housing inventory. The project will replace a defunct 54-room hotel and an abandoned 170-seat restaurant and ensure the restoration and preservation of a Buckminster Fuller geodesic dome located on the property. The project, thus, has numerous benefits to the Town and will enliven the main thoroughfare heading into Woods Hole Village.

 

The special permit was appealed by two neighboring property owners pursuant to G.L. c. 40A, § 17 to Barnstable Superior Court. The neighbors, who own property on the rear of the project and whose property is 85 feet from the closest proposed building, claimed that they will be harmed by the project. Specifically, before the trial court, the neighbors (who reside on their property only two weeks per year) argued that they would be harmed by construction activities, density, failure of the proposed septic system, traffic, shadow, and impact on views. On cross-motions for summary judgment below, the Barnstable Superior Court (Perrino, J.) held that the Developer had rebutted the neighbors’ presumptive standing and that the neighbors had failed to come forth with credible evidence to substantiate their alleged harms. The neighbors appealed the trial court’s decision to the Appeals Court, arguing that the Barnstable Superior Court erred in holding that the neighbors would not be harmed by the project’s density and impact on views.

Following briefing and oral argument, the Appeals Court affirmed the trial court’s decision. In its decision, the Court first set forth the standard for a neighbor to have standing to challenge a municipal permitting decision. The Appeals Court noted that, once presumptive standing is rebutted, a neighbor must produce evidence that is “both quantitatively and qualitatively sufficient.” Quantitative evidence is that which provides factual support for the claimed harms of particularized injury, and qualitative evidence is that which a reasonable person could rely on to demonstrate that the claimed injury will likely flow from a board’s decision. The Appeals Court then considered the neighbors’ claimed aggrievement – density-related harms and impact on views – in turn.

As to density, the Court noted that the neighbors solely relied on their own opinion and did not support their claimed aggrievement with credible evidence. The Court quickly dispensed of the neighbors’ speculative opinions, indicating that there was no evidence in the record that the project would shut off a view, affect their privacy, or reduce light or air to the neighbors’ property.

As to impact on views and neighborhood visual character, the Court noted that such claimed harm is protected by the Zoning Code and, thus, may impart standing. Specifically, the special permit criteria in the Zoning Code requires the Zoning Board of Appeals to take into consideration a project’s “[i]mpact on neighborhood visual character, including views and vistas.” (Note that, not every municipal bylaw protects an impact on view and, thus, such claimed harm cannot always be relied upon to confer standing to those appealing a municipal permitting decision pursuant to G.L. c. 40A, § 17). After considering the evidence in the summary judgment record, the Court determined that the neighbors had failed to demonstrate particularized harm to their property or a detrimental impact on the visual character of the neighborhood as a whole. The Court noted that, again, the neighbors offered nothing more than speculative opinion and generalized statements concerning the visual impact of the project. While the Court acknowledged that expert testimony is unnecessary to demonstrate an impact on views, a party seeking to appeal a municipal permitting decision must still put forth credible evidence. As they had failed to do so, the neighbors lacked standing to appeal the Falmouth Zoning Board’s decision.

As identified herein, the project, known as Lighthouse Station, will greatly improve the property, add units to the Town’s subsidized housing inventory, and ensure the preservation of the historic Buckminster Fuller geodesic dome. The Appeals Court’s decision resolves the pending appeal and enables the Developer to proceed with its project.

Cochair of the REBA Strategic Communications Committee, Kim Bielan is a principal of the Boston and Quincy-based firm of Moriarty, Troyer & Malloy LLC.  Her practice focuses primarily on real estate litigation, with an emphasis on zoning and land use matters. She also represents clients on a variety of real estate permitting matters and frequently appears before municipal boards to permit projects and to represent the interests of abutters and neighborhood groups. Kim’s email address is kbielan@lawmtm.com.

An Entrusted Relationship: Building Bridges Between the Title Examiner and the Reviewing Attorney (Video)

Permitting Impacts of New Climate Change Projections for Boston

Sammy Nabulsi

What is the (G)BRAG Report?

Last June, the Greater Boston Research Advisory Group (GBRAG) published its report, Climate Change Impacts and Projections for

the Greater Boston Area.  The report, which looks at the impacts of climate change on the 101 cities and towns that make up the Metropolitan Area Planning Council’s region, provides updated projections for inland flooding and extreme precipitation, extreme heat, and sea level rise and coastal flooding.  

The report is a follow-up to a 2016 report of the Boston Research Advisory Group (BRAG), which was the first effort to provide more specific projections of the impacts of climate change on Boston through the year 2100.  The 2016 report became a planning document for the city and formed the basis for Climate Ready Boston, an ongoing neighborhood-by-neighborhood initiative to prepare Boston for the future impacts of climate change. 

The report gained significant traction outside of Boston, for good reason, and is used regularly by several other cities and agencies to develop regulations and policies, vulnerability assessments, and local resilience and adaptation plans.  The June 2022 GBRAG Report is significant for two reasons: it updates the 2016 projections and provides a wider lens of the impacts of climate change on the entire Greater Boston region. 

Updated Climate Change Projections

The GBRAG Report predicts more extreme precipitation events will result from climate change, leading to more inland flooding from rivers and stormwater overflow.  Existing and ongoing greenhouse gas emissions will continue to contribute to more extreme heat events.  The GBRAG Report predicts that there will be more than 20 days of 90-degree heat each year by 2040, more than 31 such days by 2080, and more than 33 by 2100, under an intermediate emissions scenario.  Under the high emissions scenario, the Greater Boston region could experience more than 62 days of 90-degree heat per year by 2100.  

One of the more significant updates, which could have immediate planning and land-use permitting implications, is the GBRAG Report’s updates to coastal flooding projections caused by a combination of increasing sea level rise and storm surges.  Through 2050, the GBRAG Report now projects flood heights to be 2 to 16 centimeters higher than the 2016 projections under the intermediate emissions scenario and 5 to 26 centimeters higher under the high emissions scenario. 

What does this mean for local permitting?

The GBRAG Report and the updated coastal flooding projections could bring changes to permitting requirements for developers pursuing projects in Boston.  If you are a project proponent or consultant, here are a couple areas to watch out for:

Boston Zoning Code’s Coastal Flood Resilience Overlay District, Article 25A

In Fall 2021, the Boston Zoning Code was amended to add Article 25A and create the Coastal Flood Resilience Overlay District (CFROD).  The boundaries of the CFROD are based on the extent of flooding for the 1% annual chance coastal flood event in 2070, factoring in 40 inches of sea-level rise.   

Article 25A generally applies to projects that (1) increase gross floor area by at least 20,000 square feet, (2) add 15 or more dwelling units, (3) result in a substantial rehabilitation of, or resulting in, at least 100,000 square feet of gross floor area, or (4) establish or change a use of 50,000 square feet outside Downtown or 100,000 square feet in Downtown.

Projects subject to Article 25A are required to include 1-2 feet of freeboard above the base flood elevation in 2070, accounting for projected sea level rise, and undergo resilience review similar to that under Article 80’s small and large project review.  Under resilience review, a developer must demonstrate to the Boston Planning & Development Agency that the project incorporates best practices and standards to reduce or eliminate coastal flood risk or damage from future climate conditions, relying on the most recent flood hazard modeling and mapping data.

The GBRAG Report could mean two things for developers when they consider Article 25A compliance. First, the increased coastal flooding projections could affect the boundary of the CFROD and expand the number of private property owners subject to Article 25A’s minimum design flood elevation requirements and resilience review.  Article 25A allows the Building Commissioner to adjust the boundary and determine that a site is within or outside the CFROD if information on sea level rise or storm surge does not reflect actual site conditions.  The Building Commissioner’s decision to include or exclude a property from the CFROD is appealable to the Zoning Board of Appeal.  Second, the increased coastal flooding projections could mean that projects within the CFROD may be subject to heightened design flood elevation requirements of 1-2 feet of freeboard above the updated projections.

Boston Wetlands Protection Ordinance

In 2019, the Boston City Council enacted an Ordinance Protecting Local Wetlands and Promoting Climate Change Adaptation in the City of Boston.  The Ordinance prohibits work or activities in defined wetland resource areas without first filing a permit application, called a Notice of Intent, with the Boston Conservation Commission.  The Ordinance creates a resource area called the Coastal Flood Resilience Zone (CFRZ), which is defined as the area beyond the existing floodplain which the Commission determines has a reasonable probability of becoming subject to coastal storm flooding due to sea level rise within the next 50 years.  As with the CFROD, the increased coastal flooding projections could affect the boundary of the CFRZ and expand the number of private property owners subject to local wetlands permitting.

Regardless of whether your project falls within the CFRZ, property owners and developers subject to local wetlands permitting need to be familiar with the GBRAG Report because the Ordinance requires every project proponent to integrate climate change and adaptation planning considerations into the project.  These considerations include the impacts of sea level rise and changes in coastal flooding.

Sammy Nabulsi is a partner at Rose Law Partners LLP in Boston. His practice focuses on land use, environmental, and real estate permitting and litigation.  He is a new member of REBA and can be reached at ssn@rose-law.net.

SJC Invalidates Massachusetts Waterfront Development Rules

Jeffrey J. Pyle

On July 12th, the Supreme Judicial Court issued a major ruling on behalf of the Harbor Towers Condominium in its challenge to a

proposed office and residential tower on a waterfront property in downtown Boston. In a victory for the public’s historic rights to access the waterfront, the SJC unanimously affirmed a lower court decision invalidating state regulations that permitted the Secretary of Energy and Environmental Affairs to override limits on the height and massing of waterfront structures intended to preserve public access to the water.

The case, Armstrong v. Secretary of Energy and Environmental Affairs, stems from a proposal by the owner of the Harbor Garage in downtown Boston to demolish the garage and replace it with a 600-foot, 900,000 square foot mixed-use office and residential tower. The property abuts Boston Harbor, and therefore is subject to special state rules on development in the “tidelands.” 

Under centuries of common law, the Massachusetts legislature holds the sovereign power to protect the public’s right of access to the tidelands. Since 1866, the legislature has delegated that power to various public bodies, most recently the Department of Environmental Protection (“DEP”). In Chapter 91 of the General Laws, the legislature directed that any development in the tidelands must have a license from DEP. Under the statute, DEP can only issue a license if it determines that the project serves a “proper public purpose,” and that the project’s benefits to the public’s rights in the tidelands outweigh its detriments. 

To preserve public access, DEP duly enacted regulations under Chapter 91 that limit the height and massing of waterfront structures. Among other things, the regulations impose a 55-foot height limit on properties within 100 feet of the water, with the limit stepping up with each additional foot inland. The regulations also require that 50% of any development parcel be devoted to open space. The intent of these regulations is to ensure that developments are not too big or too intense to accommodate “water dependent uses,” such as fishing and sailing. 

However, in 1990, the DEP delegated its authority to decide the height and massing of waterfront developments to the Secretary of Energy and Environmental Affairs. Under the 1990 regulations, the Secretary could approve alternative height and massing standards requested by a municipality and contained in a harbor-specific “municipal harbor plan” (“MHP”). The regulations required DEP to apply the Secretary’s substitute dimensional standards, rather than its own limits, in any later licensing decision. Before approving an MHP, the Secretary was required to determine that the substitute dimensional standards ensure sufficient public access, and she could receive input from DEP. However, the Secretary, not DEP, had final approval. 

The Harbor Garage is close to the water, so under the default DEP rules the developer’s proposed tower would have been limited to 55-155 feet. To accommodate the planned tower, the City of Boston asked the Secretary of Energy and Environmental Affairs to approve a municipal harbor plan allowing a building envelope of up to 600 feet. In April 2018, the Secretary approved the plan, finding that the 600-foot height variance would preserve public access because other buildings in the “entire City skyline” are similarly tall. 

Concerned about the detrimental impacts of the proposed tower on both the interests of its residents and the public’s right of access to the water, Harbor Towers sued the Secretary, the DEP, and the developer in the Suffolk Superior Court. Harbor Towers was joined in a companion case by the Conservation Law Foundation. On April 1, 2021, Judge Brian Davis of the Suffolk Superior Court struck down the waterfront regulations as an invalid delegation of DEP’s authority. 

On July 12, 2022, the Supreme Judicial Court unanimously affirmed the Superior Court’s decision, holding that the DEP’s delegation to the Secretary in the 1990 regulations was invalid. Under centuries of common law, only the legislature itself or its “express” designee may exercise the authority to protect this “special, unusually valuable form of public property.” In Chapter 91, the legislature expressly delegated that power to DEP, not the Secretary. The DEP “may not cede to the Secretary the decision whether non-water-dependent uses of tidelands serve, inter alia, a proper public purpose by binding itself to so find based on the Secretary's decision to approve specifications in connection with an MHP.”

The SJC’s decision invalidates a municipal harbor plan that would have produced a project vastly out of scale with the neighborhood, with attendant detrimental public impacts on traffic and wind conditions in the area. Practically speaking, as the court noted, the decision is likely to affect only proposed projects that have not yet been granted Chapter 91 licenses, because the statute of limitations to challenge a Chapter 91 license is 30 days. The ruling therefore should not impact licenses for structures already built under the authority of now-invalidated municipal harbor plans. 

In addition, the decision presents an opportunity for a new public process to decide where to strike the balance between development and the public interest. Harbor Towers has been working closely with its neighbors, including the garage developer, on developing a plan to address rising sea levels in the area. That important question should be at the heart of any future waterfront planning initiative.

Jeffrey J. Pyle is a partner at Prince Lobel Tye LLP. Along with Thomas M. Elcock, he represented the Harbor Towers condominium trusts in the Armstrong case. Jeff represents clients in a wide variety of cases, including First Amendment litigation, multimillion dollar business disputes, libel claims, criminal cases, and civil rights matters.  Jeff’s email address is jpyle@princelobel.com. 

‘Til Death Do Us Part?

Meghan E. Hall

A partition action is a legal proceeding to force the sale of real estate that is held by two or more joint tenants (or tenants in common), in

order to fairly divide the sale proceeds among the owners.  A partition action is often used a last resort when one or more owners want to sell, but cannot agree with the other owners on the terms of the sale. Partition actions are governed entirely by Chapter 241 of the Massachusetts General Laws.  Pursuant to G.L. c. 241, §1, “[a]ny person, except a tenant by the entirety [a married couple], owning a present undivided legal estate in land, not subject to redemption” has a right to partition.  What happens, however, when a partition action is initiated, but one joint tenant dies during the partition proceedings, but before the property is sold?

This question is properly addressed in the SJC decision of Freda Battle, as personal representative of the Estate of Charles R. Dunn, v. Barbara Howard, SJC-13177.  

In Dunn v. Howard, the parties owned a property in the Dorchester neighborhood of Boston as joint tenants with rights of survivorship since 1993.  Then, at the age of 93, Dunn brought a partition action seeking a sale of the property.  As the property could not be advantageously divided (that is, physically divided), the Court appointed a commissioner and issued a warrant for the sale of the property.  Thereafter, on or about January 30, 2021, the appointed commissioner accepted an offer to purchase the property, which was “subject to approval by this Court [the Land Court].”  Following the accepted offer, the commissioner was to prepare a purchase and sale agreement for the Court’s review and approval.  However, before the Court approved the sale, Dunn passed away.

Following Dunn’s passing, Howard filed a motion to dismiss the partition action arguing that Dunn’s interest in the property vested in Howard at the time of his death and that the filing of the partition action did not sever the joint tenancy.  The Land Court denied the motion to dismiss, which Howard appealed and the SJC took up the matter sua sponte.  

The SJC concluded that the initiation of the partition action, the subsequent proceedings, and the acceptance of the offer did not serve to sever the joint tenancy.  That is because a joint tenancy can only be severed when one of the four unities is destroyed. (The four unities are: (i) interest, (ii) title, (iii) time, and (iv) possession.) “Generally, acts that will severe one or more of the four unities and terminate a joint tenancy include alienation of the land by conveyance, including some forms of granting a mortgage by one or more joint owners, and severance by partition.”  As the filing of the petition to partition did not sever the joint tenancy, the SJC noted that the operative act that would have severed the joint tenancy would have been the commissioner’s actual conveyance of the property by deed to the buyer.  “Thus, until Dunn’s death, the parties remained joint tenants with a right of survivorship.  When Dunn died, Howard became the sole owner of the property.”  

The Court further addressed the potential buyer’s right to possess the property based upon the accepted offer to purchase and differentiated this case from McCarthy v. Tobin, 429 Mass. 84 (1999).  In McCarthy, the SJC held that where there is a firm offer and all materials terms have been agreed to by the parties, the offer to purchase creates a binding contract to sell entitling the buyer to specific performance.  In this case, however, the terms of the offer between the commission and the buyer were subject to the approval of the Land Court judge, the parties had the ability to object to the sale, and the parties had the right to prevent the sale by matching the buyer’s offer or presenting their own offer.  Additionally, the acceptance of an offer does not bring about the conveyance itself and did not alter the owner’s property rights.  Accordingly, based on the foregoing, the SJC concluded that the buyer’s offer did not manifest the same definite intent to be bound as the buyer in McCarthy and the buyer did not possess property rights in the property. 

In conclusion, the SJC held that the heirs of a decedent in a partition action do not have standing to continue a partition action.  That is because the heirs of a joint tenant with rights of survivorship do not inherit the interests in the property, as it passes to the other joint tenant by operation of law.  As such, the SJC found that the motion to dismiss should have been allowed on the grounds that Dunn’s heirs lacked standing as they held no interests in the property.

While G.L. c. 241 provides an “out” from the shared ownership of property, Dunn v. Howard serves as a reminder of the key difference between holding property as joint tenants with rights of survivorship or tenants in common.  Joint tenants with rights of survivorship operate to the disadvantage of heirs, where tenants in common hold property together, but their respective interests in the property pass to their heirs at death.   Joint tenants with rights of survivorship, much like tenants by the entirety (married couples), hold the property together until death when the decedent’s interests pass to the other owner, which cannot be severed by the initiation of a partition action.  For advice on pursuing a petition to partition, the counsel of an experienced real estate attorney is recommended. 

An associate in the litigation department of Moriarty Troyer & Malloy LLC, Meghan is an experienced real estate litigator licensed in Massachusetts. Meghan’s experience includes representing clients in all Massachusetts trial courts, including the Land Court, and the Appeals Court. Meghan’s email is mhall@lawmtm.com. 

The Massachusetts Wage Act Continues to Bite… Employers

Daniel S. Tarlow

Many Massachusetts employers are aware that the Commonwealth’s Wage Act, G.L. c. 149 sec. 148, is uncompromising regarding an

employer’s obligation to pay wages in a timely fashion and imposes harsh penalties (including mandatory treble damages) for non-compliance. Also, most Massachusetts employers understand and try to comply with the Wage Act’s requirement that terminated employees be paid their final wages (including accrued vacation pay) on the date of termination.

In a statutory scheme that is otherwise entirely inflexible and harsh, one bit of “wiggle room” has been an influential line of superior court cases (the leading case being Dobin v. CIOview Corp. from 2003), which held that so long as final wages were paid before the employee files a lawsuit, the employee’s damages under the Wage Act would be limited to the lost interest on the money (trebled) from the date of termination to the date of the payment.  These rulings provided some comfort that when an employer was not in a position to provide final pay on the day of termination, the failure to do so would not devolve into a hefty legal claim.

All this changed on April 4th, when the SJC, in the case of Reuter v. City of Methuen, 2022 WL 996270, at *4, overruled this line of cases, and held that nearly any failure to provide final wages and vacation pay on the date of termination entitles the employee to three times the wages and vacation pay, as well as reasonable attorneys’ fees incurred in pursuing a claim. In essence, the SJC held that the rule articulated in these cases may be laudable or sensible, but is not supported by the statutory language or history. As the SJC itself recognized, its ruling has major implications for how and when employers terminate employees.

The basic rules of the Wage Act are well-known:

• Employers must pay their employees within either six or seven days of the “termination of the pay period during which the wages were earned.”
• “Wages” include all regular wages, accrued and unused vacation pay, and commissions when due and determined.

With respect to final pay upon termination, however, the Wage Act treats employees who resign or quit differently than those who are terminated. With respect to the former, an “employee leaving his employment,” must “be paid in full on the following regular pay day.” With respect to the latter, an “employee discharged from such employment,” must “be paid in full on the day of his discharge.” In Reuter, the SJC described this distinction as likely emanating from the Legislature’s determination that, while employers may not have advance notice of an employee’s resignation, they control the timing of when they terminate an employee. By and large, this distinction may be valid, and the employer that has decided to terminate an employee has time to organize final payment for the employee’s last day.

However, there are numerous circumstances where an employer may have difficulty arranging final payment for the date of termination.  These range from: administrative or technical difficulties with payroll; a sudden termination due to misconduct; or the employee not being in the workplace to receive final payment (think, “remote workers”). In these and similar circumstances, employers often find themselves playing “catch-up,” and having to make final payment shortly after the employee’s last day.

Under the Dobin line of cases, employers had some comfort that a small “miss” would not result in a big “hit” under the Wage Act. Now, with the Reuter decision, all that has changed:  a miss by a day, a month, or a year all entitle the employee to treble damages for the entire amount that should have been, but was not, paid on the employee’s last day.

Practical Considerations

The question then is, what is an employer to do if it needs to “part ways” with an employee but cannot arrange final payment right away? The SJC addressed this scenario directly in Reuter, and suggested that the only viable solution is to suspend the employee pending termination and final payment. Further, while the SJC did not directly address whether this type of suspension –i.e., one simply to arrange for final wages – must be paid or unpaid, it would be prudent to provide the suspension with pay in order to avoid any appearance that the employee’s employment ended on the date of suspension.

Some special mention needs to be made about the complicating aspect of remote work, especially in light of the dramatic increase in this mode of working. For a variety of reasons, it is very difficult for an employer to correctly time and sequence termination and final payment for the same day for a remote worker. It is also awkward, to say the least, to call a worker “in,” just to terminate him or her. How then to heed the Reuter decision when it comes to remote workers?

One of the only exceptions in the Wage Act’s strict timing mandates is when workers are “absent” from their “regular place of labor at the time of payment.” Does this exception apply to remote workers? Unfortunately, there is no clear answer to this question as yet, and a remote worker might be able to successfully argue that the situs of their work has shifted to their home so that they are not absent from their regular place of work. For this reason, we suggest that for now, and until this question is clarified, an employer should either arrange for payment on the remote worker’s last day, or suspend or place the remote work on leave, with pay, until final payment can be made.

In sum, in light of the Reuter decision, employers must carefully plan and prepare for nearly all terminations in order to avoid a failure to pay all final wages on the last day of employment.

Chair of the employment law practice group at Prince Lobel Tye LLP, Dan has more than 25 years of experience in the field of employment law and litigation. He has represented businesses of all sizes in a wide range of matters, from discrimination and harassment complaints to claims involving misuse of trade secrets, privacy rights actions, and wrongful termination litigation.  Dan can be contacted by email at dtarlow@princelobel.com.

If you have any questions about the information presented here, or have any employment law concerns, please contact Daniel Tarlow, chair of the firm's Employment Practice Group, at 617 456 8013 or dtarlow@PrinceLobel.com.

Free Advice, Well Worth the Price.

Robert M. Ruzzo

Despite the relative dearth of political headlines at the time of this writing (mid-spring), Massachusetts

is actually in the throes of a Governor’s race this year. The Housing Watch does not wish to back a particular candidate in this fight, but will always grab the opportunity to put housing in any headline. Given the fact that pandemic shortages and supply chain price pressures are now being coupled with interest rate increases aimed at curbing inflation, there are storm signals all along the housing horizon. Compelled by this confluence of events, your humble correspondent dares to share some thoughts about housing as a campaign issue and, more importantly, housing as a priority for any incoming administration, regardless of its political stripe.

We’re Number One?

Occasionally, it’s helpful to at least consider the experiences of those who have gone before you. And in all candor, this column does not recall the outgoing governor focusing much on housing during the halcyon days of the 2014 election cycle. Governor Baker campaigned as an experienced manager with financial and health care management credentials. To be candid, he came into office bringing with him the sympathies of a Swampscott selectman when it came to the demands being placed on the municipal level of government by the state. Not exactly the profile of your typical housing stalwart. All of this was swiftly overshadowed by the great "Snowmaggedon” and its aftermath, particularly its impact on the MBTA. While transit service is irrevocably intertwined with housing (hope you’ve been paying attention), the priority was, to borrow a health care term, simply to get the patient (the MBTA) ambulatory first. Then, during the second term, there was this little matter known as Covid 19. 

That's why it was particularly revealing to hear the governor, in his final speech before the Greater Boston Chamber of Commerce (somewhat akin to a commencement address) identify housing as the "principal headwind" facing the Commonwealth in the future. It's not quite the same as an outgoing President Eisenhower warning about the military-industrial complex, but it should make everyone think. Housing needs to be the priority for any incoming administration. That's not The Housing Watch talking, that’s the voice of hard-earned experience.

Build, Baby, Build!

No, The Housing Watch hasn’t “gone rogue,” but the harsh truth is current housing production levels are half of the already inadequate levels from thirty years ago. Rising construction costs and interest rates aren’t going to make things any easier. We need to focus both on the construction process itself, including exploring prudent means of greater reliance on modular construction in a way that does not irrevocably alienate union sensibilities and we need to focus intensively on the permitting/preconstruction side of the equation, seeking out what will really motivate municipalities to welcome more housing and what land use regulation techniques will deliver that production efficiently. Implementation is the most difficult stage of any policy, so that means, in particular, focusing on implementation of the new Section 3A of Chapter 40A, and its authorization of “as of right” MBTA multi-family zoning districts. Tweaking broader issues related to that goal, such as the consequences for failing to comply with new Section 3A, should be prioritized, notwithstanding The Housing Watch’s sympathy with the notion of adopting the “as of right” multi-family zoning concept state-wide.

It's About the Infrastructure, Stupid!

Speaking of zoning, there's more than one kind of infrastructure. Hard infrastructure, such as utilities (particularly water and sewer) are obviously vital to greater production and density. And that’s a great rationale for fostering ever more multi-family housing in the Commonwealth’s Gateway Cities where the infrastructure likely needs a solid upgrade rather than full scale installation.  

But there's a second kind of infrastructure and that's land use regulatory infrastructure. Here’s where Massachusetts falls down miserably, due largely to our notoriously outdated zoning enabling act, compounded by our snowflakish desire to proliferate local environmental regulations. If we are going to continue to go beyond state-wide environmental standards, better training at the local level is simply a must.  

The Housing Watch supports a dual track approach. And yes, that means tackling full scale zoning reform. But it also means first improving the carrot and stick tools we have such as Chapter 40R and Chapter 40B (more about that next time) and implementing the new Section 3A. If these tools can be tweaked enough to make continued opposition to housing production at the local level sufficiently burdensome, the eternal optimist can see an opening for the large-scale zoning reform that the Commonwealth really needs. 

Affordable Housing Doesn’t Need to Be this Complicated.

Every Affordable Houser has a horror story (or ten) about mixing multiple sources of subsidy from different entities in order to make an affordable development work. Long ago, Massachusetts’ subsidizing agencies wisely banded together to produce a “uniform” set of documents (known as “MassDocs”) to make legally tracking the requirements imposed by these various sources comprehensible. That’s been very helpful, as far as it goes, but since we have an Affordable Housing Trust in this state, one that can accept “donations” by the way, wouldn’t it be easier to “launder” (excuse me, “funnel”) the various sources through the Affordable Housing Trust and then have the subsidizing agencies provide simplified form and content for the restrictions? 

Ownership Equals Opportunity. 

Our time grows short. But this may be the most important point of all. More simply has to be done on the homeownership front in affordable housing (beyond the federal proposal for a homeownership tax credit). This may mean experimentation with the once heretical notion of “burning off” affordability restrictions on resale over time, even if that means fewer affordable units in theory. The Housing Watch is fascinated by the proposal made by the My City at Peace-HYM Investments team with respect to the P-3 parcel in Roxbury. It raises the possibility of affordable homeownership units with restrictions that fall away after fifteen years. The Housing Watch will keep a lookout for similar experiments. If we can change the municipal mindset on housing production, we can generate both new restricted units and a new generation of middle class, particularly among traditionally underrepresented communities. 

We also need to encourage new thinking about incentivizing the private sector to integrate housing assistance into the employee compensation equation.

One Last Thing. 

Can our new governor please get behind the notion of expediting (not eliminating, but really expediting) abutter (not municipal) appeals involving affordable housing developments? 

Please? 

Until next time.

Co-chair of the REBA affordable housing section, Bob Ruzzo is a former Massachusetts Deputy Secretary of Transportation. He also served as the Deputy Director/Chief Operating Officer at both MassHousing and MassDevelopment.  His column, “The Housing Watch…” will be a regular feature in REBA News and on the REBA Blog He can be reached at bob@bobruzzo.com.