The state’s highest court has ruled that a housing board overstepped its authority in a case involving a Groton condominium project.
In a decision issued last week, the Supreme Judicial Court said the Department of Housing and Community Development’s Housing Appeals Committee shouldn’t have forced the town to grant an easement to enable the mixed-income condo development to be built.
Washington Green Development sought a comprehensive permit under the state’s Chapter 40B law to build 44 condos off Route 40 next to a Groton Electric Light Department power transfer substation. The project would have included 11 affordable units. The Groton Zoning Board of Appeals denied the permit in 2004 because of traffic safety issues.
The developer appealed to the Housing Appeals Committee, which overturned the board’s decision. To address the traffic safety issues, the HAC said the developer could clear vegetation on land owned by the utility.
The town appealed to the Superior Court, arguing the committee didn’t have the authority to take the property or grant an easement. The Superior Court sided with the HAC and developer. But the Supreme Judicial Court found that Chapter 40B “does not authorize the committee, directly or indirectly, to order the conveyance of an easement over land abutting the project site of a proposed affordable housing development.”
“I think that the decision is an important one because I think many 40B projects require access to public areas by easement,” said Mark Bobrowksi, the attorney who represented the town. “For example, if a developer wants to access the [local] sewer treatment facility with a private pipe, it’s going to take an easement.”
In many cases, developers seek permission to install sewer pipes, or do other work, in public areas, and towns can accept it by providing easements. “There’s nothing that compels the municipality do that,” said Bobrowski, a principal at Blatman, Bobrowski & Mead in Concord.
In the Groton case, the town argued that the developer needed approval by residents at Town Meeting to re-grade and clear the utility land.
The developer’s attorney did not return a phone message from Banker & Tradesman by press deadline.
“I do believe this case will be read narrowly for the proposition that mandating the conveyance of a real property interest really goes too far,” said John Smolak, a North Andover-based attorney who represents developers. “However, I do not expect the Groton case to stand for the limitation on the exercise of similar HAC powers to mandate certain actions by a local board and/or a local official.”
