The Massachusetts Housing Appeals Committee recently issued an important ruling reversing a claim of a “safe harbor” under M.G.L. c. 40B, ss. 20-23 (“Chapter 40B”) by the Town of Oak Bluffs Zoning
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Board of Appeals (“ZBA”). The project, known as Green Villa, proposes to build 100 home ownership units on a 7+ acre site opposite Martha’s Vineyard Regional High School in Oak Bluffs. The project also has a small commercial component. On May 20, 2024, the developer filed an application under Chapter 40B for the project. The safe harbor claim would have allowed the Board to deny or defer action on the project for 2 years.
On June 13, 2024, the ZBA made its written assertion that the Board’s approval of the of the Southern Tier Comprehensive Permit, including sixty (60) units counting toward the Town’s Subsidized Housing Inventory (SHI), had created enough affordable housing units under the Town’s Housing Production Plan (“HPP”) to justify a certification from the Massachusetts Executive Office of Housing and Livable Communities (“EOHLC”) that Oak Bluffs had complied with the HPP annual goal and could thus claim a 2-year safe harbor.
Green Villa appealed the safe harbor claim to EOHLC. On July 24, 2024, EOHLC denied the Town’s safe harbor claim. The ZBA appealed the EOHLC ruling to the Massachusetts Housing Appeals Committee (“HAC”). The Martha’s Vineyard Commission (“MVC”) moved to intervene, as the basis of the ZBA’s safe harbor claim was that the time deadlines under the Chapter 40B Regulations for claiming a safe harbor were stayed until the MVC completes its review of the project as a Development of Regional Impact and makes a decision. Green Villa challenged this assertion and is also challenging the jurisdiction of the MVC to review a Chapter 40B project. MVC was granted participation as an Interested Person limited to responding to arguments concerning the MVC.
On April 24, 2025, HAC issued a Summary Decision on Interlocutory Appeal, which upheld the EOHLC denial of the ZBA safe harbor claim. HAC ruled that there could not be two separate time frames for a Chapter 40B project:
“For purposes of determining safe harbor eligibility, there can only be one operative date, uniformly applied to all 351 cities and towns of the Commonwealth, the determination of which is not dependent upon the MVC’s review of the project. Therefore, the operative date for determining whether a municipality subject to the MVC Act has achieved a statutory or regulatory safe harbor is the date of the comprehensive permit application. Accordingly, the date for determining the Town’s safe harbor status is the date on which the developer’s comprehensive permit application was filed with the Board, May 20, 2024.”
MBM Principal, Peter L. Freeman, who handled the case before HAC with co-counsel Jesse D. Schomer of Dain Torpy, noted that this ruling on timing was critical because as of May 20, 2024, based on the Chapter 40B Regulations, the 60 Southern Tier units that had been added to the Town’s SHI were no longer eligible to count as SHI units (because no building permit was issued within one year of the approval of the project), thus extinguishing the EOHLC certification of safe harbor.
Claims of safe harbor by municipal zoning boards are becoming more frequent, and this case is important for affordable housing developers because it affirms the integrity of the Chapter 40B safe harbor regulations and keeps the applicable time frames specific and concrete, as opposed to being a moving target if the ZBA position had prevailed.
Green Villa is now before the ZBA
for substantive hearings on the merits of the project.
