CLARK L. ZIEGLER
‘Underlying principles’
A 13-member committee has started working on reforms of the appeals process through which affordable housing developers and communities must go during disputes over Chapter 40B housing proposals.
The committee, which was established by the state last month, is searching for ways to ease the growing number of cases before the Housing Appeals Committee, an autonomous and independent entity within the state Department of Housing and Community Development.
Some developers and attorneys argue that the HAC needs more staffing to handle a backlog of cases. There are currently 59 open appeals before the HAC, holding up the construction of more than 6,000 housing units.
“At a time when the state is desperately in need of new housing production, we really need to do everything possible to encourage good, prompt decisions on housing,” said Clark L. Ziegler, executive director of the Massachusetts Housing Partnership Fund and chairman of the new committee. “We’re looking at ways to streamline the process without sacrificing the quality of the decisions [made by the HAC].”
Slow Process
The HAC hears appeals from developers of housing proposed under Chapter 40B, the state’s so-called anti-snob zoning law. Under the law, developers can apply for a comprehensive permit and go through a faster permitting process via the local zoning board in communities where less than 10 percent of the housing is certified as affordable by the state. However, to get a comprehensive permit, at least 25 percent of the units that a developer is proposing must be affordable.
Developers can file an appeal with the HAC if a local zoning board denies their application for a comprehensive permit or if the board adds conditions to the permit approval that make the housing development economically unfeasible. “No HAC decision has ever been overturned by the courts, but cases often take years to get resolved,” according to a press release issued by the DHCD.
Ziegler noted that the U.S. Supreme Court and the state’s Supreme Judicial Court have reviewed HAC decisions in the past and upheld them. “This is a body that during 34 years has never been overturned, which is a remarkable record given the complexity of the cases [it handles],” he said.
But that record has come with a price – a slow, methodical process that delays housing projects for months and sometimes years.
Jeff Rhuda, a developer with Symes Assoc., a real estate development and property management firm in Beverly, said the HAC is too understaffed to deal with the large volume of incoming appeals and needs more personnel.
Rhuda filed an appeal at the HAC for a 36-unit development in Waltham that has been before the committee for 10 months, and doesn’t anticipate a decision for another six months.
“It’s an 18-month process … and that was after being at the [Waltham Zoning Board of Appeals] for a year and a half,” said Rhuda.
Rhuda also believes that the process could be speeded up if the HAC only dealt with the issues on which the appeal is based, instead of reviewing the entire permitting process.
“There’s a redundancy of review,” he said.
The formation of the new committee comes after a task force established to reform Chapter 40B earlier this year recommended that the DHCD director appoint an ad hoc committee to evaluate current HAC hearing procedures and make changes to improve and expedite them.
In a letter sent to the Chapter 40B task force in May, Wakefield attorneys Theodore C. Regnante and Paul J. Haverty suggested that the HAC be eliminated in its current form and replaced with three administrative law judges who are supported by clerks. One of the law judges would serve as “conference judge,” who would be responsible with narrowing the issues for the hearing and facilitating mediation. The other judges would concentrate on conducting hearings.
The attorneys also recommended that all appeals – including appeals by abutters, not just developers – be heard by this housing appeals division in order to streamline the process. Currently, abutters who are not satisfied with a ZBA decision usually appeal to Superior Court or Land Court, sometimes at the same time that a developer is appealing to the HAC.
“There is no guidance in either the statutes or the regulations on whether the court must stay its proceedings until the appeal to the HAC is complete. However, if the court does not stay its appeal, and rules on the abutter appeal, it risks having the basis of its ruling altered by the HAC, which may invalidate the conditions of the board upon which the court relied in making its ruling,” Regnante and Haverty wrote in the letter.
Regnante is a member of the committee seeking to reform the appeal process. The committee consists of other real estate attorneys and developers as well as municipal officials.
Ziegler said the committee will address staffing and the issues raised by Regnante and Haverty. The committee is expected to make recommendations for regulatory and administrative changes to the DHCD by Nov. 1.
“We’re trying to find ways to make things work more efficiently, while still respecting the underlying principles of 40B,” said Ziegler.
