In another setback to opponents of Chapter 40B affordable housing projects, the Massachusetts Appeals Court upheld the Housing Appeals Committee’s (HAC) creation of a seemingly more rigorous four-part test that appears to place a tougher burden on municipalities seeking to deny 40B projects on the ground that their master plan is a local concern that trumps the need for affordable housing.

In Eisai, Inc. v. Housing Appeals Committee, Supreme Judicial Court No. 15-P-680 (June 20, 2016), the developer filed a Comprehensive Permit application to build a 248-rental-unit project within an existing office and industrial park. The local zoning board of appeals denied the developer's application on the ground that the "proposed project is inconsistent with decades of municipal planning, economic development strategies, and planning with owners and tenants of the abutting industrial properties[,] . . . most notably, the rezoning of the locus and abutting properties to accommodate and develop a modern, competitive, and viable industrial park and industrial center." On appeal by the developer, the HAC reversed and ordered the local board to issue the Comprehensive Permit. The Superior Court affirmed.

On appeal, the Appeals Court first confirmed that the developer met its initial burden of proving that its proposal "complies with federal or state statutes or regulations, or with generally recognized standards as to matters of health, safety, the environment, design, open space, or other matters of Local Concern." The burden then shifted to the project opponents to prove "first, that there is a valid health, safety, environmental, design, open space, or other Local Concern which supports such denial, and then, that such Local Concern outweighs the Housing Need." Here, the local concern was the project’s alleged “grave incompatibility” with the municipal master plan.

In weighing master plan considerations against housing needs, the HAC has employed a two-part analysis, first determining “whether the master plan was a legitimate local concern.” The Appeals Court explained that the HAC had found that the master plan board had “passed…[this first] threshold test” since the town had "a solid history of planning... resulting in not only a bona fide master plan, but also in a community development plan and a housing plan, both addressing affordable housing.” The HAC also found that “the master plan… had been implemented throughout… [the town], including in the area of the project site. “

Turning to the second part of the analysis, the Court explained that the HAC, in resolving the question of whether a municipality’s recognized planning interests outweigh its affordable housing needs, previously focused on two questions: "first, whether the affordable housing plan aspect of the master plan 'has actually shown results' in terms of the construction of affordable housing, and second, whether the proposed project is inconsistent with and would undermine the plan to a significant degree."

Rather than employ this test, the HAC sought “to clarify the standard we apply," by enunciating a flexible four-factor test under which the board must introduce enough evidence to cumulatively establish a local concern of sufficient weight to outweigh the regional need for affordable housing. Project opponents must now demonstrate the following:

  1. The extent to which the proposed housing is in conflict with or undermines the specific planning interest.
  2. The importance of the specific planning interest, under the facts presented, measured, to the extent possible, in quantitative terms . . . .
  3. The quality . . . of the overall master plan (or other planning documents or efforts) and the extent to which it has been implemented. A very significant component of the master plan is the housing element of that plan (or any separate affordable housing plan). The housing element must not only promote affordable housing, but to be given significant weight, the Board must also show to what extent it is an effective planning tool. . . .
  4. The amount [and type] of affordable housing that has resulted from affordable housing planning.

On its face, the reformulated test requires boards to provide a greater amount of more specific, higher quality information in order to tip the scale in favor of upholding the master plan and denying the 40B project. Faced with the new, reformulated test, not even a bona fide master plan with an affordable housing element that had been implemented both town-wide and at the project site was sufficient to stop the 40B project.

The Appeals Court squarely rejected, however, the contention that the HAC "moved the goalposts . . . inventing a new scheme . . . in a transparently outcome-driven four-part analysis." It opined that, “All four factors address the ultimate issue whether local concerns relating to municipal planning outweigh the local need for affordable housing.” Besides, even if the HAC had raised the bar, the Court appeared unconcerned. It recited the “recognized principle of administrative law” that it is permissible for agencies to “adopt policies through adjudication as well as through rule-making."