Bridgewater officials ordered a developer to stop its leasing practices after discovering apparent violations of a town regulation banning roominghouses. iStock photo
A recent lawsuit involving a multifamily housing project in Bridgewater shows how a real estate developer can unexpectedly fall into a regulatory rabbit hole with a local building inspector and a board of appeals.
In 2018, a developer secured from the Bridgewater Zoning Board of Appeals, by unanimous vote, a comprehensive permit under Massachusetts General Laws chapter 40B for a 58-unit apartment building near downtown Bridgewater and Bridgewater State University. The project would redevelop a commercial property and parking lot.
The developer agreed to reserve 25 percent of the apartments as affordable units with below-market rent. The project would offer apartments with one, two and three bedrooms. The comprehensive permit imposed over 100 conditions, such as limiting the project to 112 total bedrooms and requiring conformity to approved plans. It also required general compliance with local bylaws, but explicitly waived a zoning prohibition on multifamily dwellings.
The permit did not specifically waive a zoning bylaw prohibiting lodging houses in Bridgewater. Nor did it specifically require compliance with it.
That bylaw defined “lodging houses” as houses or dwelling units accommodating “four or more persons not within the second degree of kindred to the legal owner of the premises.” However, when applying for the permit, the developer filed a sample lease agreement with language stating the developer’s intent that not more than two unrelated individuals would occupy a single bedroom. That language implied that up to four unrelated individuals could reside in a two-bedroom apartment, and up to six in a three-bedroom apartment.
The original developer transferred its comprehensive permit to SLV Bridgewater PO LLC in 2019. SLV notified the board of this transfer and submitted a new set of architectural plans for approval. The new plans showed two separate beds in each bedroom, for a total of 222 beds in the project. The board unanimously approved the new plans without additional conditions, and SLV built the apartments.
Inspector Cites Property for Violation
Two years later, the building inspector, aware that some of SLV’s apartments housed four or more unrelated residents, sent SLV a cease-and-desist order for violating the prohibition on lodging houses.
SLV appealed the building inspector’s order to the Bridgewater Zoning Board of Appeals. The board unanimously upheld the order.
SLV then appealed the board’s decision to the Superior Court, but lost there as well. The court declared that SLV violated the lodging house bylaw and enjoined SLV from leasing units to four or more unrelated individuals. SLV took its case to the Appeals Court, which rendered its decision last summer in SLV Bridgewater PO, LLC v. Town of Bridgewater.
The Appeals Court noted in its decision that a comprehensive permit under Chapter 40B can override local zoning requirements. While recognizing that a comprehensive permit does not prevent municipalities from exercising legitimate police power, the court stated that municipal officials cannot approve an occupancy limit under a comprehensive permit, but then unilaterally change their minds about the very same occupancy limit under its police power.
In this case, the Board of Appeals approved plans and issued a comprehensive permit allowing up to two residents per bedroom – up to six occupants in a three-bedroom apartment – without specific limitations on residents’ familial relationships. SLV faithfully built its multifamily project with affordable apartments in accordance with the approved plans and the permit.
According to the court, the building inspector had no legitimate reason to send SLV the cease-and-desist order.
Christopher R. Vaccaro
Appeals Court Not Convinced
The court was not convinced by the town’s argument that the comprehensive permit reserved the town’s right to enforce its bylaws to prevent unrelated individuals from sharing apartments.
The court observed that this general language offered no indication that the town would later invoke the lodging house prohibition to issue the cease-and-desist order. The court also rejected the town’s argument that the original developer or SLV should have requested a specific waiver of the lodging house prohibition during the permitting process for the multifamily project.
The court found that it was clear all along that SLV’s project was designed to provide apartments to house unrelated residents. The court reversed the Superior Court’s ruling that SLV violated the lodging house prohibition, and sent the case back to the Superior Court with instructions to vacate the cease-and-desist order.
In ruling against the town, the court suggested that the town’s enforcement action against SLV was “unreasonable, whimsical, capricious, and arbitrary.” These are highly unflattering adjectives for a court to use when describing a municipality’s discretionary use of its police powers.
Christopher R. Vaccaro, Esq. is a partner at Dalton & Finegold, LLP in Andover. His email address is cvaccaro@dfllp.com.
