ZONING BOARD OF APPEALS OF BRAINTREE v. 383 WASHINGTON STREET, LLC, & Others (And a Consolidated Case)

APPEALS COURT

ZONING BOARD OF APPEALS OF BRAINTREE vs. 383 WASHINGTON STREET, LLC, & others[1] (and a consolidated case[2])

Docket:

23-P-1213

Dates:

February 13, 2025 – June 18, 2025

Present:

Englander, Hodgens, & Smyth, JJ.

County:

Norfolk

Keywords:

Zoning, Comprehensive permit, By-law, Housing appeals committee, Low and moderate income housing, Board of appeals: decision. Permit. Housing. Practice, Civil, Zoning appeal. Statute, Construction. Administrative Law, Agency's interpretation of regulation.

Civil actions commenced in the Superior

Court Department on April 14, 2022.

The cases were heard by Joseph F.

Leighton, Jr., J., on motions for judgment on the pleadings.

Roger L. Smerage (Carolyn M. Murray also

present) for the plaintiff.

Peter L. Freeman for 383 Washington

Street, LLC.

John R. Hitt, Assistant Attorney General,

for Department of Housing and Community Development & another.

ENGLANDER, J. This case involves applications for

comprehensive permits under G. L. c. 40B. The applicant, 383 Washington Street, LLC

(developer), seeks to develop two adjacent properties in Braintree -- proposing

on one property an eight-unit townhouse, and on the other, a seventy-unit

apartment building. Certain of the units

in each development will be dedicated for low or moderate income housing. The developer invoked chapter 40B in an

attempt to streamline the local permitting process. See the Comprehensive Permit Act, G. L.

c. 40B, §§ 20-23. That effort initially failed, as the zoning board

of appeals of Braintree (board) denied the comprehensive permits. The denials were thereafter reversed on

appeal by the housing appeals committee (HAC), so as the case reaches this

court, the board has been ordered to issue the comprehensive permits.

The case presents issues, in particular,

regarding how to calculate the so-called "safe harbor" under

G. L. c. 40B, § 20, that is afforded to cities and towns that

achieve a 1.5 percent threshold for land area dedicated to low or moderate

income housing (sometimes called the "general land area minimum" or

"GLAM" provision). See

G. L. c. 40B, § 20; 760 Code Mass. Regs. § 56.03(3)(b)

(2012). In the proceedings below the

board took the position that the town of Braintree (town or Braintree) had

satisfied the statutory "safe harbor," and that accordingly any denial

of the comprehensive permits by the board must be upheld as a matter of

law. On appeal, the HAC denied the

board's claim to the safe harbor, and thereafter ruled that the permits must

issue. A Superior Court judge upheld the

HAC decisions.

On appeal to this court the board

continues to press that it had achieved the 1.5 percent threshold, thereby

validating the denial of the comprehensive permits as a matter of law. The board also argues, in the alternative,

that the permits were properly denied based upon Braintree land use regulations

that were "consistent with local needs" -- in particular, that the

proposed projects failed to comply with open space, or "open recreational

space," requirements, and that one project failed to make adequate provision

for fire safety.

As discussed below, we affirm the rulings

of the HAC (and the Superior Court judge).

Braintree did not establish that it qualified for the 1.5 percent safe

harbor, nor do we perceive error in the HAC's rejection of the board's denials

based upon open space and fire safety concerns.

Background. In February of 2017, the developer applied to

the board for two comprehensive permits, proposing two developments on adjacent

parcels of land in Braintree. The first

development would constitute eight townhouse-style units in two buildings, of

which two units would be designated as low or moderate income housing

(townhouse project). The second

development would constitute an apartment building with seventy units, of which

eighteen would be low or moderate income (apartment project).

In March of 2017, the board asserted that

denying the comprehensive permits would be "consistent with local needs as

a matter of law," because Braintree met the 1.5 percent safe harbor. The developer successfully challenged this

assertion before the Department of Housing and Community Development

(department),[3] and the board took an interlocutory appeal to the HAC. Before the HAC, the board claimed that low or

moderate income housing existed on sites comprising 1.65 percent of the total

applicable land area in Braintree.

However, the parties disputed the board's GLAM calculation -- both the

numerator (the land area containing low or moderate income housing) and the

denominator (the total applicable land area). The HAC ultimately found that low or moderate

income housing existed on just 1.396 percent of the total applicable land area

and denied the board's claim.

The board then resumed consideration of

the permits. In February of 2020, the

board denied the comprehensive permits as inconsistent with local

standards. The board gave several

justifications, including that (1) both developments did not offer

adequate "outdoor recreational areas" for residents, and (2) the

apartment project would not provide adequate access for firefighters.[4]

On appeal, the HAC again reversed the

board. While the HAC found that both

projects did not comply with the town's open space bylaw, it also found that

the bylaw had not been applied equally to subsidized and unsubsidized housing,

and thus that the board could not rely on it.

The HAC also rejected the board's conclusion that the apartment project

failed to meet local fire safety requirements.

The board sought judicial review of the HAC's decisions in the Superior

Court, which affirmed all decisions.

Discussion. 1. The

1.5 percent "safe harbor" issue.

On appeal the board reiterates its position that Braintree satisfied the

1.5 percent GLAM "safe harbor" provision of chapter 40B. See G. L. c. 40B, § 20. The relevance of the GLAM provision is that,

if satisfied, a local zoning board's denial of a comprehensive permit is deemed

to be "consistent with local needs," as a matter of law, for chapter

40B purposes. Id. And under chapter 40B, a zoning board denial

that is "consistent with local needs" is conclusive with respect to

any review by the HAC, and may not be overturned by that body. G. L. c. 40B, § 23. See Zoning Bd. of Appeals of Sunderland v.

Sugarbush Meadow, LLC, 464 Mass. 166 , 169 & n.3 (2013) (Sugarbush) (HAC hearing

limited to whether appeal board decision denying permit was consistent with

local needs). As discussed below,

however, we agree with the HAC that Braintree did not meet the GLAM

requirements.

The basic structure of chapter 40B has

been described in previous cases, and we reiterate it only briefly here. An applicant under chapter 40B must show that

its proposed project is eligible to be subsidized under a government low or

moderate income housing program.

G. L. c. 40B, §§ 20, 21; 760 Code Mass. Regs.

§ 56.04(1) (2012). Assuming that

the project qualifies, the developer may utilize the vehicle of chapter 40B,

which among other things (1) vests in the town's zoning board of appeals

the ability to grant a "comprehensive permit" for the development, without

the developer having to separately obtain approval from other town boards --

e.g., the planning board or the conservation commission, and (2) imposes

limits on the board's ability to deny the comprehensive permit -- that is, the

denial must be "reasonable and consistent with local needs." See G. L. c. 40B, §§ 21, 23;

Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 364 (1973)

(board of appeals to apply same "consistent with local needs"

standard as HAC).

As noted, here the board contends that it

has conclusively met the "consistent with local needs" requirement,

because the town qualifies for a "safe harbor" based upon the amount

of land area in the town that is already dedicated to low or moderate income housing. The HAC, however, found to the contrary. As always, we begin with the statutory

language:

"Requirements

or regulations shall be consistent with local needs when imposed by a board of

zoning appeals . . . in a city or town where (1) low or moderate

income housing exists . . . on sites comprising one and one half per

cent or more of the total land area zoned for residential, commercial or

industrial use . . ." (emphasis added).

G. L.

c. 40B, § 20.

The above language sets forth what appears

to be, at least at first blush, a simple mathematical ratio. The numerator is the "total land

area" in a town that consists of "sites" where "low or

moderate income housing exists."

G. L. c. 40B, § 20.

The denominator is the "total land area" in a town that is

"zoned for residential, commercial or industrial use." Id. If

the ratio is equal to or greater than 1.5 percent, then the town achieved its

GLAM safe harbor.

As is sometimes the case, the difficulty

with applying the statute is in the details.

By way of example, in calculating the "total land area" in a

town that is zoned for residential, commercial, or industrial use, does one

include water bodies (viz., lakes, ponds, rivers), that are included in a zone

on a town zoning map but where no building could occur? If those areas are included in the

denominator, then it will be more difficult (potentially, considerably more

difficult) for the town to meet the GLAM safe harbor. It turns out, however, that water bodies are

excluded from the denominator by regulation.

See 760 Code Mass. Regs. § 56.03(3)(b)(5).

Similar interpretive issues arise for the

numerator. Suppose, for example, that

only ten percent of the units in a particular development in the town have been

set aside for low or moderate income housing.

Does one count the "total area" of the "site" where

the housing "exists" (that is, the entire area of the development) or

only ten percent of that area (or some other percentage)? Once again, the regulations address this

question (the answer is ten percent), see 760 Code Mass. Regs.

§ 56.03(3)(b), but the examples demonstrate the need for further

elucidation of the statutory language.

Indeed, there are a host of variants and issues that can arise in

applying the statutory language, several of which have been raised during this

litigation, including in this appeal.[5]

The regulations address many of these variants and answer a great number

of questions. Moreover, the department

has also issued "guidelines" that provide further detail in applying

the GLAM ratio, although the board contends the guidelines are invalid and may

not be considered as law.[6] As

discussed below, we can resolve the dispute before us by reference to the

statutory language and the regulations only, without having to resolve the

viability of the department guidelines.

Cf. Attorney Gen. v. Milton, 495 Mass. 183 , 193-196 (2025).

Turning to the facts of this case, before

the HAC the parties raised several disagreements that bore on the GLAM

calculation, including disagreements regarding both the numerator and the

denominator.[7] On appeal to this court

those disagreements have been narrowed; indeed, it turns out that we can

resolve the GLAM question by resolving a single disagreement, which is whether

a certain 244-acre area that was part of the so-called "Devon Woods"

development should, or should not, be included in the denominator of the GLAM

calculation.

The Devon Woods development is a so-called

"cluster" development that Braintree approved in the 1980s. Pursuant to the Braintree zoning bylaws

applicable to such developments, the developer was required to set aside

certain land area and dedicate it, permanently, to conservation uses. The 244 acres at issue are the result of this

process. The land is located within an

area zoned for residential use. However,

the land is permanently dedicated to use for conservation purposes. It may not be built on. The board argues, accordingly, that the land

logically should be excluded from the denominator of the GLAM calculation, just

as water bodies are excluded, because the land is not available for

development. Importantly, the board

concedes that if these 244 acres are included in the denominator, Braintree

cannot reach the 1.5 percent GLAM threshold even if it succeeds on every

argument that it raised for increasing the calculated numerator -- that is,

Braintree cannot succeed even if the numerator reached the figure of 81.859

acres of "sites" where "low or moderate income housing

exists," as the board claimed before the Superior Court.[8]

The board's Devon Woods argument founders

on the plain language of the statute, as well as the language and structure of

the applicable regulation, 760 Code Mass. Regs. § 56.03(3)(b). Starting with the statute, the land at issue

is "zoned" "residential."

It accordingly falls squarely within the definition of the denominator

-- land area "zoned for residential, commercial or industrial

use." G. L. c. 40B,

§ 20. If the statute were the last

word on the issue, then the answer would be clear as day; the regulation, however,

puts a gloss on the statutory language.

The regulation at issue establishes that some land area that is zoned

residential, commercial or industrial (for example, water bodies) may

nevertheless be excluded from the denominator.

See 760 Code Mass. Regs. § 56.03(3)(b)(5).

The relevant regulation, 760 Code Mass.

Regs. § 56.03(3)(b), is entitled "General Land Area Minimum,"

and begins: "For the purposes of

calculating whether [low and moderate income housing] exists in the city or

town on sites comprising more than 1 1/2% of the total land area zoned for

residential, commercial, or industrial use . . . ." Then follow several numbered paragraphs as to

categories that should be "included," or "excluded," from

the "total land area" calculation:

"1. Total land area shall include all districts

in which any residential, commercial, or industrial use is permitted,

regardless of how such district is designated by name in the city or town's

zoning bylaw;

"2. Total land area shall include all unzoned land

in which any residential, commercial, or industrial use is permitted;

"3. Total land area shall exclude land owned by

the United States, the Commonwealth or any political subdivision thereof, the

Department of Conservation and Recreation or any state public authority, but it

shall include any land owned by a housing authority and containing [low or

moderate income housing];

"4. Total land area shall exclude any land area

where all residential, commercial, and industrial development has been prohibited

by restrictive order of the Department of Environmental Protection pursuant to

[G. L.] c. 131, § 40A. No

other swamps, marshes, or other wetlands shall be excluded;

"5. Total land area shall exclude any water

bodies;

"6. Total land area shall exclude any flood

plain, conservation or open space zone if said zone completely prohibits

residential, commercial and industrial use, or any similar zone where

residential, commercial or industrial use are completely prohibited.

"7. No excluded land area shall be counted more

than once under the above criteria."

(Emphases added.)

760 Code Mass.

Regs. § 56.03(3)(b)(1)-(7).

The board argues that the Devon Woods land

area should be excluded under subsection 4 and subsection 6 of the above

provision, but we do not agree. As to

subsection 4, it plainly does not apply.

That subsection excludes only land area subject to a "restrictive

order of the Department of Environmental Protection [(DEP)] pursuant to

[G. L.] c. 131, § 40A," which is a particular kind of DEP

order protecting "inland wetlands."

See G. L. c. 131, § 40A.

The 244 acres are not subject to a § 40A order; rather, they are

subject to a conservation restriction, a concept that is defined and discussed

in a different section of the Massachusetts statutes, G. L. c. 184,

§§ 31-33.[9] See Zoning Bd. of

Appeals of Greenfield v. Housing Appeals Comm., 15 Mass. App. Ct. 553, 559

(1983) (in construing regulations with regard to G. L. c. 40B, "[a]

reasonable regulation of an administrative agency which is clear and

unambiguous on its face must, like a comparable statute, be applied according

to its terms").

Nor does subsection 6 apply. By its terms, that subsection excludes

conservation "zone[s]." 760

Code Mass. Regs. § 56.03(3)(b)(6).

The 244 acres do not fall in a conservation "zone" on the town

zoning map; the land at issue is zoned residential. The town argues, however, that the subsection

6 exclusion should not be limited to land that is zoned for conservation on a

zoning map, but instead that we should give the word "zone" a broader

construction, and that the 244 acres would fit, for example, the dictionary

definition of "zone" as "a region or area set off as distinct

from surrounding or adjoining parts."

See Merriam-Webster's Collegiate Dictionary 1458 (11th ed. 2005). The town also argues that a broader

construction is appropriate because subsection 6 uses only the word

"zone," not "zoning district." And finally, the town points to the language,

"or any similar zone where residential, commercial or industrial use are

completely prohibited," and contends that the 244 acres constitute a

"similar zone" that meets this arguably more general language. 760 Code Mass. Regs. § 56.03(3)(b)(6).

We are not persuaded. In the context of the regulation, we conclude

that the proper construction of "zone" is in reference to the

applicable government zoning map. That

is the context in which the word is used in subsection 2 of § 56.03(3)(b);

similarly, subsection 1 is clearly directed at determining what land should be

included or excluded based upon the zoning map.

760 Code Mass. Regs. § 56.03(3)(b)(1). We note as well that each of subsections 1

through 5 involve land areas that appear to be determinable from information

ordinarily available to the town -- for example, what land is owned by

particular government entities or covered by a water body. In contrast, if subsection 6 were read

broadly, as the board urges, then determining what land area should be excluded

as falling within a "conservation or open space zone" would be more

difficult -- arguably requiring, for example, a consultation or compilation of

private deed restrictions (and perhaps even legal opinions) to determine

whether land had been set aside for "conservation" or "open

space." Put differently, if

"zone" in subsection 6 is not referring to the town's zoning map,

then one might argue that every land area in town dedicated to some form of

"open space" is arguably excludable, no matter how it was designated

on the zoning map.[10] In short, the

board's construction is very broad, and its limits are not easily discerned.

As discussed above, the regulatory

exclusions of § 56.03(3)(b) are already in tension with the plain language

of the statute, G. L. c. 40B, § 20. In addition, the exclusions make it easier

for towns to meet the GLAM safe harbor, and thereby to avoid the application of

the strict requirements of chapter 40B.

We are not inclined to read the exclusion in subsection 6 broadly, thereby

increasing the tension with the statute in a manner that could be, in addition,

difficult to apply and to administer.[11]

Rather, we read the word "zone" in subsection 6 to refer to

zones on a government zoning map. 760

Code Mass. Regs. § 56.03(3)(b)(6).

As a result, the 244 Devon Woods acres should not be excluded from the

denominator of the GLAM calculation, and Braintree did not qualify for the GLAM

safe harbor.

2.

Braintree's proffered "valid local concerns." That Braintree did not meet the 1.5 percent

GLAM threshold is not the end of this matter, because the board also denied the

comprehensive permit based on supposed "valid [l]ocal [c]oncern[s]"

-- (1) as to both the townhouse and apartment projects, that they failed

to provide sufficient "outdoor recreational areas," and (2) as

to the apartment project, that it failed to provide adequate access for

firefighting. See 760 Code Mass. Regs.

§ 56.02 (2020) (defining "Consistent with Local Needs," in part,

as when "Local Requirements and Regulations imposed on a Project are

reasonable . . . considered with . . . Local Concerns . .

."). After an evidentiary hearing,

the HAC rejected both of these bases for denying the comprehensive permits,

ruling that the board had failed to meet the statutory standards for

denial. On appeal, the board challenges

the HAC's rulings.

a.

The "outdoor recreational areas" issue. As to the board's denial based upon

insufficient "outdoor recreational areas," the HAC's principal basis

for rejecting that concern was that outdoor recreational space is not a requirement

of the town zoning bylaws. The HAC is

correct in this regard. The bylaws

governing multifamily dwellings contain an express "open space"

requirement -- it is 2,000 square feet of open space per unit. See Braintree Zoning Ordinances, art. VII, § 135-705

(2003). The bylaws do not refer,

anywhere, to "outdoor recreational space." The HAC accordingly rejected the board's

position, essentially as a matter of law, ruling that the board had failed to

establish a valid local concern. The HAC

went on to note, in addition, that even if there were an articulated local

concern for outdoor recreational space, such a concern would be "minimal

with respect to the project site," because the proposed projects are

"within walking distance to several public outdoor recreational

facilities."

We review the HAC's determination for

whether it was supported by substantial evidence, and not arbitrary or

capricious. See G. L. c. 30A,

§ 14 (7); G. L. c. 40B, § 22; Zoning Bd. of Appeals of

Milton v. HD/MW Randolph Ave., LLC, 490 Mass. 257 , 262 (2022). The HAC's decision here was well

supported. Under the statute, Braintree

can deny a comprehensive permit only if the denial is "reasonable and

consistent with local needs."

G. L. c. 40B, § 23.

Where, as here, a city or town does not qualify for a safe harbor, a

board requirement or regulation is "consistent with local needs" if

it is:

"reasonable

in view of the regional need for low and moderate income housing considered

with the number of low income persons in the city or town affected and the need

to protect the health or safety of the occupants of the proposed housing or of

the residents of the city or town, to promote better site and building design

in relation to the surroundings, or to preserve open spaces, and if such

requirements and regulations are applied as equally as possible to both

subsidized and unsubsidized housing" (emphases added).

G. L.

c. 40B, § 20.

Here, where the HAC determined that the

town bylaws do not even address "outdoor recreational areas," it is

readily evident that the HAC's rejection of the board's requirement was not

arbitrary or capricious. See Zoning Bd.

of Appeals of Holliston v. Housing Appeals Comm., 80 Mass. App. Ct. 406,

417-418 (2011) ("The board's power to disapprove a comprehensive permit

. . . is limited to the scope of concern of the various local boards

in whose stead the local zoning board acts"). Indeed, the board makes no argument that this

outdoor recreational space requirement is applied equally to subsidized and unsubsidized

housing, as there is no showing that the requirement has been applied generally

to projects in the town.[12]

On appeal, the board contends that its

outdoor recreational space requirement is merely an implicit subset of the

"open space" requirement that is found in the town bylaws. Braintree emphasizes that neither project

meets the open space requirement of 2,000 square feet per unit, and, in fact,

that both projects fall considerably short of that mark. This argument fails for a different reason,

however, which is that the HAC expressly found that the board does not apply

the bylaws' open space requirement equally to subsidized and unsubsidized

housing. This HAC finding was supported

by an analysis of four other unsubsidized housing projects in Braintree (in the

case of the townhouse project) and six other unsubsidized projects (in the case

of the apartment project) that had been approved even though they did not meet

the bylaws' 2,000 square feet requirement.

Notably, several of these previously approved, unsubsidized projects had

open space area comparable to the projects at issue.

In short, the HAC's conclusion as to the

bylaws' "open space" requirement was supported by substantial

evidence and not arbitrary or capricious.

The HAC's conclusion as to the outdoor recreational space variant on

"open space" was equally well supported in the record and is

accordingly affirmed.

b.

The fire safety issue for the apartment project. As to fire safety, before the HAC the board

argued that the apartment project was out of compliance with the National Fire

Protection Association (NFPA) 1 Code, relying on the testimony of the Braintree

deputy fire chief that fire access to the apartment project would be

insufficient, and that there would be operational concerns in the event of an

emergency.[13],[14] After an evidentiary

hearing at which the deputy fire chief testified, however, the HAC found that

none of the board's fire safety concerns constituted a valid local concern

sufficient to deny the comprehensive permit.

The HAC's decision as to fire safety was

supported by substantial evidence and was not arbitrary or capricious. The board argues that the developer did not

establish a prima facie case of compliance with State regulations, alleging

that one of the two fire access roads, the "Parking Way," would not

be "unobstructed" as required by the applicable NFPA 1 Code, because

vehicles could park there.[15] See 527

Code Mass. Regs.

§§ 1.04, 1.05

(2022); NFPA 1 Fire Code § 18.2.3.5.1.1 (2021); 760 Code Mass. Regs.

§ 56.07(2)(a)(2) (2012). However,

there was evidence in the record, which the HAC relied upon and credited, that

the likelihood that cars would obstruct access on the "Parking Way"

was not abnormally high. Furthermore,

there was evidence that the fire department could require the installation of

signs on the "Parking Way" indicating that parking was prohibited.

The board argues that the developer could

not be in compliance with the fire code where the deputy fire chief determined

that another access road would be needed, in addition to the two fire access

roads already available. The board bases

this challenge on an NFPA 1 Code provision in effect at the time, which

provided that "[m]ore than one fire apparatus access road shall be provided

when it is determined by the [fire chief] that access by a single road could be

impaired by vehicle congestion . . . or other factors that could

limit access." NFPA 1 Fire Code

§ 18.2.3.3 (2021). See 527 Code

Mass. Regs. §§ 1.04, 1.05. Although

the development already had two fire access roads, the board argues that where

the deputy fire chief has determined that another fire access road would be

required, the HAC must defer to that determination essentially as a matter of

law. However, the deputy fire chief's

recommendation is not binding on the HAC in the chapter 40B context, where the

deputy fire chief is treated as a "local . . . official"

whose approval is not required to obtain a comprehensive permit. See Sugarbush, 464 Mass. at 182-183 , quoting

G. L. c. 40B, § 21.

Accordingly, the HAC had "the authority to evaluate the fire

chief's recommendation in the context of the comprehensive permit," and

could permissibly determine that the project was in compliance with the State

fire code based on the evidence in the record.

See Sugarbush, supra at 183 .

Here, the HAC did so; it pointed out that the apartment project already

had two access roads available, and that access met the specific requirements

of the State fire code.

The board's other supposed "local

concern" related to fire safety is founded solely in the opinion of the

deputy fire chief, who testified that "[i]t is the position of the

Braintree Fire Department that the proposed design and size of the building in

relation to the size of the lot and the location of the site provide inadequate

fire access creating a serious public safety concern," and identified

several access concerns. However, the

developer's expert, a fire protection engineer, provided testimony that the

project was compliant with the fire code, and that the project did not present

an unusual fire hazard such that further protections would be necessary.[16] The HAC expressly found the developer's

expert's testimony more credible than that of the deputy fire chief. Such credibility determinations are the

province of the HAC. See Sugarbush, 464

Mass. at 184 .

The judgments entered on docket numbers

2282CV00344 and 2282CV00345 are affirmed.

So ordered.

footnotes

[1] Department of

Housing and Community Development and the Housing Appeals Committee.

[2] The

consolidated case involves the same parties.

[3] The

department is now named the Executive Office of Housing and Livable

Communities. See Attorney Gen. v.

Milton, 495 Mass. 183 , 187 n.7 (2025).

[4] The board

also reasserted that 1.5 percent of Braintree's general land area was dedicated

to low or moderate income housing. The

board found additional concerns with the project, which are not at issue in

this appeal.

[5] For example,

the board argues that certain land areas associated with low and moderate

income housing units should be included as part of the numerator, including

stormwater infrastructure, landscaped areas, and zoning setbacks. As we note below, we do not reach these

issues.

[6] The

guidelines at issue in this case were issued in January of 2018, during the

pendency of the interlocutory appeal to the HAC, and were revised in late

January 2020, shortly before the board denied the comprehensive permits as

inconsistent with local standards.

[7] Before the

HAC, the board took the position that the denominator should be calculated as

5,120.97 acres of land area zoned residential, commercial or industrial, with a

numerator of 84.517 acres of low or moderate income housing "sites,"

for a ratio of 1.65 percent. The

developer disagreed, and the HAC ultimately settled on a denominator of

5,498.27 acres, a numerator of 76.768 acres, and a ratio of 1.396 percent,

below the statutory threshold.

[8] We reject the

board's argument that a GLAM ratio that is over 1.45 percent may be

"rounded up," to reach the GLAM threshold. Such an argument is inconsistent with the

plain language of the statute, which sets the minimum at "one and one half

per cent or more." G. L.

c. 40B, § 20.

[9] General Laws

c. 184, §§ 31-33, "created a framework to protect conservation

lands . . . through the use of what are essentially negative

easements." Wildlands Trust of

Southeastern Mass., Inc. v. Cedar Hill Retreat Ctr., Inc., 98 Mass. App. Ct.

775 , 776 (2020). "The grantor

maintains possession but grants a nonpossessory interest in the property to a

holder -- generally a government entity or charitable organization -- which

agrees to protect the natural aspects of the property." Id.

[10] We note that

cities or towns may file with the appropriate register of deeds a map, known as

the public restriction tract index, including, among other restrictions,

conservation restrictions. G. L.

c. 184, § 33. The preparation

and filing of such a map is permissive, however, not mandatory, as is the

reporting of any such restriction. See

id.

[11] We do not

call into question the validity of the GLAM regulations; we merely decline to read

subsection 6 broadly, as the town urges.

[12] The board

argues that a valid local concern regarding open recreational space can be

found within the town's open space and recreation plan, contained within its

master plan, which includes the objective to "[p]rovide for increased

opportunities for active recreation."

The HAC found, however, that "[t]he Master Plan does not contain

any recommendations that the Town impose outdoor recreational facilities on

private developments."

[13] Braintree

does not have any local fire safety regulations, beyond the State fire code.

[14] The

provisions of the NFPA 1 Code have been adopted, incorporated, and modified by

regulation in Massachusetts. See 527

Code Mass. Regs. §§ 1.04, 1.05 (2022).

At the time of the March 2022 HAC decision, the 2021 edition of the NFPA

1 Code was in effect.

[15] Before the

HAC, the board also argued other fire access concerns; these concerns were

rejected by the HAC, and the board does not press these arguments on appeal.

[16] The board

argues that as to one operational concern, the use of a "grass-crete"

pad as a staging ground for an aerial ladder truck, both parties agreed that

the pad was not an ideal location for such a use. But the HAC found that there were other areas

around the building where such a truck could be deployed, and any risk posed by

an inability to park the town's aerial ladder truck on the grass-crete pad was

minimal in light of other planned safety features for the project.