something like this: If the only tool you have is a hammer, it is tempting to treat everything like a nail. In other words, there’s a right (and wrong) tool for the job and it behooves the operator of the tool to know the difference.
On further appeal, the Appeals Court reversed the judgment and directed that the cease-and-desist order be rescinded – lambasting the town for its “caprice” and accusing it of reducing the permit to a “hollow parchment promise.” The Court’s reasoning was that the approved architectural plans had conceptually depicted two beds in each bedroom – impliedly contemplating that a three-bedroom apartment might contain up to six residents. (The Court does not appear to have considered whether the presumptive occupants of these hypothetical beds were related to each other.) In other words, by approving these plans, the board also approved occupancy. Thus, although the developer did not request a waiver of the lodging house bylaw, the Court found that the board had impliedly approved one.
As an aside, the outcome directed by the Court effectively entails that the occupancy of apartments by four or more unrelated persons did, in fact, constitute a lodging house use, albeit one that would be allowed through the waiver of the bylaw forbidding this use. The Court did not delve into the thorny moral and legal question of whether a municipality should be allowed to favor one class of persons over another based on familial status, nor whether it is appropriate in the midst of a housing affordability crisis for that municipality to affix the decidedly pejorative epithet “lodging house” to someone’s home simply because the people who call it home happen to be unrelated.
While the Court’s decision, broadly speaking, yielded the correct result, a lesson to be learned from this case can be found in the adage cited above: it is important to use the right tool for the job. Chapter 40B development is highly complicated, requiring parties to navigate numerous pitfalls across an extended period of time. As this case illustrates, those pitfalls do not necessarily end when a project is occupied. A review of the underlying record suggests several suspects for how things went sideways.
First, although the developer was represented by counsel with experience in Chapter 40B at some point during the entitlements process, the developer’s principals appear to have largely led the proverbial charge. This inclination towards self-help is contrary to the wisdom of Professor Bobrowski, who in his Handbook of Massachusetts Land Use and Planning Law, teaches us that permitting counsel should be the “maestro” of the permitting team in order to ensure completeness and procedural correctness – a task that “is usually enough to inject the attorney into the center of the storm.” Whether motivated by budgetary considerations or a developer’s self-assuredness, development under Chapter 40B is not the time for DIY.
Next, when the dispute at issue in this case arose, the developer opted to retain a local lawyer to respond to the cease-and-desist notice and handle the resulting litigation. (That litigation, for those keeping score in the grandstands, took more than five years, and counting, to resolve.) To be clear, local lawyers are a vital part of the legal ecosystem for countless reasons. In the context of Chapter 40B development, a local permitting counsel can be helpful due to their on-the-ground knowledge of the permitting environment and familiarity with the players on the field. But the violinist doesn’t lead the orchestra. The maestro does.
A 40B specialist would have known that there was a simpler, quicker, and more cost-effective option available: rather than (or in addition to) appealing the cease-and-desist order, counsel could have sent a letter to the zoning board alerting them that the project was being modified to include a request for a waiver of the local lodging house bylaw. (In its appeal of the cease-and-desist order, the developer apparently refused to this, arguing instead that a waiver was neither requested nor necessary because the bylaw didn’t apply; perhaps – but would you rather be right, or would you rather win?)
Had the developer taken the other path, the zoning board would have had twenty days to act on the notice of project change. Per applicable regulatory criteria, this change was undoubtedly insubstantial and thus did not even require the board’s approval. Had the board deemed the change substantial or denied it outright, the developer would have a right to take an expedited appeal to the Housing Appeals Committee, where the outcome almost certainly would have been a finding of insubstantial change. And, had the municipality opted to continue this fight, the HAC’s decision would have been subject to expedited administrative record review, rather than de novo review under Chapter 40A, Section 17. In sum, this would have been a faster, less costly way to accomplish the same outcome – and one with fewer opportunities for appellate authorities to get things wrong.
The lesson learned here is not exclusive to Chapter 40B, Massachusetts land use law, or even “dirt law” generally. Specialization exists in all fields for a reason: the right or wrong tool can make all the difference. As our clients’ trusted counsel, we must be unafraid to render this advice (and to learn this lesson even if it applies to ourselves).
A Co-chair of REBA’s Affordable Housing
Section, Jesse Schomer is a director and shareholder in the Boston law firm of Dain,
Torpy, Le Ray, Wiest & Garner, P.C.
His practice focuses on Massachusetts real estate development, land use,
and zoning/permitting, with primary specialization is the permitting and
development of affordable housing under M.G.L. Chapter 40B.
Jesse can be contacted by email at jschomer@daintorpy.com.
