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, 89 Mass.App.Ct. 604 (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...
