The opinion
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15-P-680 Appeals Court
EISAI, INC., & others1 vs. HOUSING APPEALS COMMITTEE
& another.2
No. 15-P-680.
Suffolk. March 8, 2016. - June 20, 2016.
Present: Hanlon, Sullivan, & Massing, JJ.
Housing. Zoning, Housing appeals committee, Comprehensive
permit, Person aggrieved. Practice, Civil, Zoning appeal,
Standing.
Civil action commenced in the Superior Court Department on
March 11, 2014.
The case was heard by Edward P. Leibensperger, J., on
motions for judgment on the pleadings.
Christopher Robertson (Jonathan D. Witten with him) for the
plaintiffs.
Suleyken D. Walker for Housing Appeals Committee.
Kevin P. O'Flaherty for Hanover R.S. Limited Partnership.
1
Andover Five, LLC; MKS Instruments, Inc.; Philips
Electronics North America, Inc.; and RREEF America REIT III
Corp. Z1.
2
Hanover R.S. Limited Partnership.
2
MASSING, J. This appeal concerns the standards that
defendant housing appeals committee (HAC) applies when it
reviews the decision of a local zoning board of appeals to deny
an application under the Comprehensive Permit Act, G. L. c. 40B,
§§ 20-23 (act), based on municipal planning concerns.
The plaintiffs, owners and lessors of commercial and
industrial properties neighboring the proposed housing
development (hereinafter, abutters or, in context, interveners),
appeal from a judgment of the Superior Court affirming the HAC's
decision directing the zoning board of appeals for the town of
Andover (board) to issue a comprehensive permit to defendant
Hanover R.S. Limited Partnership (developer). The abutters
claim that the HAC impermissibly applied a new standard, not
contained in any statute, regulation, or previous HAC decision,
in evaluating Andover's municipal planning efforts. In the
alternative, they claim that the HAC erroneously applied the
applicable standard. The defendants, for their part, contend
that the abutters lack standing to bring this appeal.
Concluding that the abutters have standing, we reach the merits
and affirm the judgment of the Superior Court affirming the
HAC's decision.
Background. On August 19, 2011, the developer filed an
application for a comprehensive permit to build a mixed income
rental housing development to be known as the "Lodge at Andover"
3
within an existing office and industrial park. The proposed
location for the residential development, 30 Shattuck Road, is
mostly within Andover's River Road industrial D district, a
commercial and industrial area in the northernmost part of
Andover, near the River Road exit of Interstate Route 93.3
Shattuck Road, a dead end, and Tech Drive, a small looping road
off of Shattuck Road, make up the office and industrial park
consisting of ten large businesses and one vacant lot: the
proposed site. The office and industrial park houses offices,
research and development facilities, and some light industrial
operations.4 After unsuccessfully marketing the vacant lot for
commercial development, the previous owner entered into a
purchase and sale agreement with the developer, which intended
to build the housing complex. The development, as currently
planned, is to consist of 248 rental units in four buildings, a
playground, a swimming pool, and a 5,000-square-foot clubhouse;
twenty-five percent of the units will be reserved for affordable
housing.
3
A very small "dog-leg" portion of the parcel is zoned
single-family residential C, and some single-family homes in
this zoning district abut the rear of the parcel. All of the
proposed construction will be located within the River Road
industrial D district.
4
A ninety-six-unit affordable housing development called
"Casco Crossing," approved by the board in 2003, is located
within the River Road industrial D district, but outside the
office and industrial park. It also abuts the back of the
project site.
4
At the time of the developer's application for a
comprehensive permit, the percentage of affordable housing in
Andover was 9.3 percent, creating a rebuttable presumption that
the local need for affordable housing outweighed other local
concerns.5 Nonetheless, after numerous public hearings, the
board denied the developer's application in a decision dated
September 7, 2012, 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." The board noted that industrial and
commercial uses generate noise, dust, vibration, and truck
traffic during their extended hours of activities, which "will
pose a threat to the public health and safety of the occupants
of the development." Thus, the board concluded that "[t]he
stated purpose of the Industrial 'D' zoning district is
inexorably inconsistent with residential uses."
The developer appealed to the HAC under G. L. c. 40B, § 22.
The HAC granted the abutters permission to participate in the
5
See Zoning Bd. of Appeals of Holliston v. Housing Appeals
Comm., 80 Mass. App. Ct. 406, 414 (2011), and discussion infra.
5
proceedings as interveners.6 In a thoughtful and thorough
decision dated February 10, 2014, the HAC directed the board to
issue a comprehensive permit. The board did not appeal from the
final decision of the HAC; however, the interveners sought
judicial review in the Superior Court under G. L. c. 30A, § 14.
In a decision dated January 2, 2015, acting on cross motions for
judgment on the pleadings, a Superior Court judge ordered the
entry of judgment for the defendants (the developer and the
HAC), affirming the HAC's decision.
Discussion. 1. Standing. The defendants assert, as they
did in Superior Court, that the interveners are not entitled to
appeal as persons aggrieved by the HAC's decision because they
have not demonstrated a substantial injury to a direct and
certain violation of a private right.
Initially, the only parties in the HAC proceedings were the
developer, which had the right to appeal from the denial of its
application, see G. L. c. 40B, § 22, and the board. "An
abutter, or other aggrieved third party, has no right to appeal
to the HAC, and may participate in the applicant's appeal only
with the permission of the presiding officer in the HAC
proceeding." Taylor v. Board of Appeals of Lexington, 451 Mass.
270, 275 (2008). The abutters sought to intervene under 760
6
A sixth intervener participated in the HAC proceedings.
Only five have joined in this appeal.
6
Code Mass. Regs. § 56.06(2)(b) (2008), which allows for
intervention by "any person showing that he or she may be
substantially and specifically affected by the proceedings."
The presiding officer determined that "the interests of all six
businesses are distinct from the interests of the Board" and
were sufficient to grant intervention.7
"Mere participation in the administrative process does not
confer standing to raise a claim in the Superior Court."
Ginther v. Commissioner of Ins., 427 Mass. 319, 324 (1998). See
Mostyn v. Department of Envtl. Protection, 83 Mass. App. Ct.
788, 792 (2013). Rather, the interveners must demonstrate that
they are persons aggrieved by the HAC decision. General Laws
c. 40B, § 21, inserted by St. 1969, c. 774, § 1, provides that
"[a]ny person aggrieved by the issuance of a comprehensive
permit or approval may appeal to the court as provided in [G. L.
c. 40A, § 17]." "While the words 'person aggrieved' are not to
be narrowly construed, the Legislature has 'intentionally
limited the class of parties with standing to challenge a
comprehensive permit.'" Standerwick v. Zoning Bd. of Appeals of
Andover, 447 Mass. 20, 26 (2006) (citations omitted)
(Standerwick). "Specifically, a 'person aggrieved' . . . must
assert 'a plausible claim of a definite violation of a private
7
We pass over the question whether the HAC, having
permitted the abutters to intervene on this ground, may properly
be heard on appeal to argue against its own prior determination.
7
right, a private property interest, or a private legal
interest." Id. at 27, quoting from Harvard Square Defense Fund,
Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493
(1989).
A mere economic interest "is clearly not a concern that the
G. L. c. 40B regulatory scheme is intended to protect." Id. at
30. However, the record plainly establishes that at least one
of the interveners is an abutter to the project site.8 "As
abutters, the plaintiffs are entitled to a rebuttable
presumption that they are 'persons aggrieved' under the act."9
Id. at 33. To rebut the abutting interveners' presumption of
8
Intervener Andover Five, LLC, owns 20 Shattuck Road, the
parcel bordering 30 Shattuck Road to the south. The properties
of three other interveners appear to be across the street from
or within 300 feet of the site, "which in either event would
give them a presumption of standing to challenge the issuance of
a comprehensive permit." Standerwick, supra at 22 n.4. The
fifth intervener, Philips Electronics North America, Inc., is
located within the River Road industrial D district but is not
an abutter. Because we find that at least one intervener is an
abutter with standing, we may reach the merits without further
considering the standing of the others. See Martin v.
Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints, 434 Mass. 141, 145 (2001).
9
"This presumption originates in our jurisprudence
concerning G. L. c. 40A, . . . but its reasoning -- that those
entitled to notice of the proceedings are presumed to have the
requisite interest -- applies with equal force in the context of
challenges to comprehensive permits pursuant to G. L. c. 40B."
Standerwick, supra. See 760 Code Mass. Regs. § 56.06(2)(b)
(2008) ("any person shall be allowed to intervene to the extent
that he or she would have standing as a person aggrieved to
appeal the grant of a special permit in accordance with M.G.L.
c. 40A, § 17").
8
standing, the defendants must support their challenge with
evidence to the contrary. See id. at 34-35 ("an abutter is
presumed to have standing until the defendant comes forward with
evidence to contradict that presumption"); Barvenik v. Aldermen
of Newton, 33 Mass. App. Ct. 129, 131-132 (1992) (defendant must
offer evidence to rebut abutters' presumption of aggrieved
person status). See also 81 Spooner Rd., LLC v. Zoning Bd. of
Appeals of Brookline, 461 Mass. 692, 700 (2012) (in zoning
context, presumption of standing can be rebutted by offering
evidence "warranting a finding contrary to the presumed fact").
The defendants have offered no evidence to rebut the
presumption. In Superior Court, the defendants challenged the
interveners' standing based only on the mistaken assertion that
they were not abutters. Because "no evidence was presented
. . . that controverted the plaintiffs' presumption of
standing," the interveners, as abutters, "were entitled to rely
entirely on their presumed status of being aggrieved parties."
Watros v. Greater Lynn Mental Health & Retardation Assn., 421
Mass. 106, 111 (1995). Accordingly, we proceed to the merits of
the appeal.
2. HAC decision directing issuance of comprehensive
permit. a. Overview. The act "is designed to facilitate the
development of low and moderate income housing in communities
throughout the Commonwealth." Zoning Bd. of Appeals of
9
Holliston v. Housing Appeals Comm., 80 Mass. App. Ct. 406, 413
(2011) (Holliston). To carry out the legislative purpose, "the
act establishes a streamlined comprehensive permitting
procedure, . . . permitting a developer to file a single
application to the local zoning board of appeals for
construction of low or moderate income housing." Standerwick,
447 Mass. at 29, citing G. L. c. 40B, § 21. See Dennis Hous.
Corp. v. Zoning Bd. of Appeals of Dennis, 439 Mass. 71, 76
(2003) ("act was intended to remove various obstacles to the
development of affordable housing, including regulatory
requirements that had been utilized by local opponents as a
means of thwarting such development in their towns").
A developer may appeal a board's denial of an application
for a comprehensive permit to the HAC.10 See G. L. c. 40B, § 22.
"The HAC's review is limited to the issue whether 'the decision
of the board of appeals was reasonable and consistent with local
needs.'"11 Holliston, supra at 414, quoting from G. L. c. 40B,
10
The HAC is a five-member body within the Department of
Housing and Community Development. See G. L. c. 23B, § 5A.
11
Under G. L. c. 40B, § 20, inserted by St. 1969, c. 774,
§ 1, "requirements and regulations shall be considered
consistent with local needs if they are 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
10
§ 23, as amended by St. 1998, c. 161, § 261. See 760 Code Mass.
Regs. § 56.07(1)(b) (2008) ("In the case of the denial of a
Comprehensive Permit, the issue shall be whether the decision of
the Board was Consistent with Local Needs"). The local needs in
question concern the availability of affordable housing.
Whether a board's decision is consistent with local needs refers
to whether a town's "valid planning objections to the proposal,
such as health, site design, and space," Zoning Bd. of Appeals
of Wellesley v. Ardemore Apartments Ltd. Partnership, 436 Mass.
811, 815 (2002) (Wellesley), reasonably accommodate affordable
housing.
Where, as here, a town's stock of affordable housing is
below ten percent at the time of the application, and the town
has not otherwise fulfilled its minimum housing obligation, see
Wellesley, supra at 815 n.10; G. L. c. 40B, § 20; 760 Code Mass.
Regs. § 56.03(1) (2008), "the regulations and our cases provide
that there is 'a rebuttable presumption that there is a
substantial Housing Need which outweighs Local Concerns,'"12
such requirements and regulations are applied as equally as
possible to both subsidized and unsubsidized housing."
12
Like the phrase "local needs," the phrase "local
concerns" is also a term of art, defined as "the need to protect
the health or safety of the occupants of a proposed Project or
of the residents of the municipality, to protect the natural
environment, to promote better site and building design in
relation to the surroundings and municipal and regional
11
Zoning Bd. of Appeals of Sunderland v. Sugarbush Meadow, LLC,
464 Mass. 166, 171 (2013) (Sunderland), quoting from 760 Code
Mass. Regs. § 56.07(3)(a) (2012).
Finally, under G. L. c. 40B, § 22, the HAC's decision may
be reviewed by a judge of the Superior Court in accordance with
G. L. c. 30A. The reviewing judge considers whether the HAC's
decision was arbitrary, capricious, lacking substantial
evidence, or otherwise contrary to the law, and whether the
substantial rights of any party have been prejudiced. See
Sunderland, supra at 172, citing G. L. c. 30A, § 14(7). The
substantial evidence standard is particularly appropriate "'in
light of the heavy burden borne by a local board that denies a
comprehensive permit application' to prove 'a specific health or
safety concern of sufficient gravity to outweigh the regional
housing need.'" Holliston, 80 Mass. App. Ct. at 414-415
(citation omitted).
b. Developer's burden on appeal to HAC. As an initial
matter, the abutters contend that the HAC should not even have
reached the ultimate question whether Andover's municipal
planning needs outweighed local needs for affordable housing
because the developer's application, on its face, was not worthy
of consideration. "Before the HAC, a developer whose
planning, or to preserve Open Spaces." 760 Code Mass. Regs.
§ 56.02 (2008).
12
comprehensive permit has been denied may establish a prima facie
case by 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.'" Id. at
415, quoting from 760 Code Mass. Regs. § 56.07(2)(a)(2) (2008).
"The regulatory scheme governing applications for comprehensive
permits . . . requires only preliminary plans" showing that the
proposal conforms to generally recognized standards. Ibid.,
citing 760 Code Mass. Regs. § 56.05(2) (2008).
In contending that the evidence proffered by the developer
was insufficient to establish a prima facie case, the abutters
take issue with the testimony of the developer's expert witness
based on his unfamiliarity with Andover's planning history.
Furthermore, they argue that other evidence before the HAC
contradicted much of the testimony of the developer's witnesses.
In determining that the developer met its burden of establishing
a prima facie case, the HAC credited the "extensive testimony"
of the developer's expert, whom it characterized as "an
experienced municipal planner," together with the testimony of
the manager of the proposed project, "an experienced real estate
development specialist."
"[W]here, as here, the HAC heard competing experts, '[i]t
is for the agency, not the reviewing court, to weigh credibility
13
of witnesses.'" Sunderland, 464 Mass. at 184, quoting from
MacLean v. Board of Registration in Nursing, 458 Mass. 1028,
1030 (2011). "[W]e must indulge all rational presumptions in
favor of the validity of the HAC's determinations, including its
choice between two fairly conflicting views, giving due weight
to its experience, technical competence, and specialized
knowledge." Holliston, supra. We discern no error in the HAC's
conclusion that the developer established a prima facie case.
c. HAC's evaluation of municipal planning concerns. Once
the developer established its prima facie case, the burden
shifted to the board 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." 760 Code Mass. Regs.
§ 56.07(2)(b)(2) (2008). See Holliston, supra. The abutters
assert that the proposed project's grave incompatibility with
Andover's municipal master plan is a compelling local concern
that outweighs regional housing needs. See Zoning Bd. of
Appeals of Lunenburg v. Housing Appeals Comm., 464 Mass. 38, 48-
49 (2013) (Lunenburg) ("The HAC recognized that a town's long-
term comprehensive planning efforts, 'when expressed in a bona
fide, effective master plan or comprehensive plan,' may be so
substantial a local concern as to outweigh the regional need for
affordable housing").
14
In weighing a town's adherence to its master plan against
its housing needs, the HAC has developed a two-part analysis:
"First, it determine[s] whether the master plan was a
legitimate local concern by asking three questions, all of
which [have] to be answered in the affirmative for the
master plan to be weighed as a local concern: '(1) Is the
plan bona fide? (Was it legitimately adopted, and, more
importantly, does it continue to function as a viable
planning tool in the town?); (2) Does the plan promote
affordable housing? and (3) Has the plan been implemented
in the area of the site?' After finding that the town's
master plan met this test, the HAC turn[s] to the second
part of the analysis: the weight to be given to the master
plan as a local concern."
Id. at 49.
The HAC determined that Andover's master planning passed
the three-question threshold test. The HAC found that Andover
had "a solid history of planning," having engaged in master
planning since 1956, 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 further found
that the master plan and ancillary plans had been implemented
throughout Andover, including in the area of the project site.
Accordingly, the HAC turned to the second, and dispositive,
part of the analysis -- whether Andover's recognized planning
interests outweigh its affordable housing needs. The statute
that defines the HAC's oversight role does not provide detailed
guidance in the application of this test. It prescribes only
the ultimate issue: "The hearing by the [HAC] shall be limited
15
to the issue of whether, in the case of the denial of an
application, the decision of the board of appeals was reasonable
and consistent with local needs." G. L. c. 40B, § 23, as
amended by St. 1998, c. 161, § 261. The HAC's regulations,
specifically 760 Code Mass. Regs. § 56.07(3)(b)-(h) (2008),
provide additional guidance in weighing evidence of local
concerns such as health, safety, and the environment, see
§ 56.07(3)(d); open space, see § 56.07(3)(f); and municipal and
regional planning, see § 56.07(3)(g).
In previous decisions, the HAC had focused on two questions
in determining how much weight to give a town's master plan:
"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." Lunenburg, supra. Here, noting that the
tension between affordable housing and broad municipal planning
efforts is a recurring issue, and that the regulations "ha[d]
recently been strengthened to explicitly include housing
planning,"13 the HAC endeavored "to clarify the standard we
apply," by enunciating a flexible four-factor test:
13
In this regard, the HAC quoted from 760 Code Mass. Regs.
§ 56.07(3)(g) (2008), which requires the HAC to receive evidence
and consider "1. a municipality's master plan, comprehensive
plan, housing plan, Housing Production Plan, or community
16
"Consistent with our precedents and regulations, the
analysis of these complex, interrelated interests can be
broken into several factors. The Board need not introduce
evidence with regard to each of these, but it must
introduce enough evidence to cumulatively establish a local
concern of sufficient weight to outweigh the regional need
for affordable housing. The Board may establish the weight
of its local planning concern by demonstrating 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."
The abutters assert that the HAC did not merely clarify the
test it had been applying for decades but, rather, "moved the
goalposts, . . . inventing a new scheme . . . in a transparently
outcome-driven 'four-part analysis.'" We disagree. The four
so-called "new" factors delineated by the HAC are simply a more
detailed explication of the two factors previously described in
development plan; 2. the applicable regional policy plan; and
3. the results of the municipality's efforts to implement such
plans."
17
the Lunenburg decision.14 The first two factors in the restated
test assist the HAC in identifying specific municipal planning
interests and determining the extent to which the proposed plan
interferes with those interests. The third and fourth factors
attempt to quantify the extent to which municipal planning has
actually shown results in terms of promoting affordable housing.
All four factors address the ultimate issue whether local
concerns relating to municipal planning outweigh the local need
for affordable housing.
"It is a recognized principle of administrative law that an
agency may adopt policies through adjudication as well as
through rule-making." Arthurs v. Board of Registration in Med.,
383 Mass. 299, 312-313 (1981). Even so, the test the HAC
enunciated here was entirely consistent with its prior policies
and was well within its statutory and regulatory authority.
14
Indeed, the four-factor test is not appreciably different
from the test HAC applied in Stuborn Ltd. Partnership vs.
Barnstable Bd. of Appeals, Housing Appeals Committee, No. 98-01,
slip op. at 3 (Sept. 18, 2002), which the abutters cite as "the
HAC's own established and reported standard regarding municipal
planning." The decision states that if a town's comprehensive
plan satisfies the three-question threshold test, the HAC must
then determine "the amount of weight [to] give to the plan," the
question whether "the proposed housing actually [would]
undermine the plan to a significant degree," and "whether the
housing element of the comprehensive plan has actually shown
results." Id. at 3 & n.5. "That is, we consider the totality
of the town's planning interests, and determine whether those
interests are sufficient to outweigh the regional need for
affordable housing." Id. at 3.
18
One cautionary observation is in order. In Board of
Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 367
(1973), the decision that established the constitutional
validity of the act, the court stated that a municipality's
failure to meet its minimum housing obligations "will provide
compelling evidence that the regional need for housing does in
fact outweigh the objections to the proposal." In the
conclusory paragraph of its analysis, the HAC here, seizing on
the Supreme Judicial Court's use of the word "compelling,"
commented that "the relatively low goal of 10% is a minimum, and
that well more than 10% of most communities' housing stock would
need to be low or moderate income in order to satisfy the
growing need for affordable housing." To the extent this
statement can be read as raising the ten-percent threshold, such
an action would exceed the HAC's statutory and regulatory
authority. When a town that has fulfilled its minimum housing
requirement denies a comprehensive permit, the HAC is compelled
to affirm the decision. See G. L. c. 40B, §§ 20, 23.
While the HAC's phrasing was perhaps inapt, we read this
remark as a rhetorical flourish, not as an expression of a new
standard. It is uncontested that Andover was below the ten-
percent threshold when the developer applied for the
comprehensive permit. Under well-established law, this fact
created a rebuttable presumption that the need for affordable
19
housing outweighed local concerns. As discussed in the next
section, in determining whether Andover had rebutted that
presumption, the HAC properly balanced Andover's municipal
planning efforts against the local need for affordable housing.
d. Review of HAC's decision. Turning to the HAC's
resolution of the ultimate issue, "the agency's decision must be
upheld if supported by 'such evidence as a reasonable mind might
accept as adequate to support a conclusion,' and we must indulge
all rational presumptions in favor of the validity of the
agency's determinations." Middleborough v. Housing Appeals
Comm., 449 Mass. 514, 528 (2007) (citation omitted).
The HAC considered each of the specific planning interests
raised by the board in denying the developer's application:
that housing in the River Road industrial D district would
conflict with longstanding efforts to preserve the area for
commercial and industrial uses, that the proposed residential
use would conflict with the surrounding commercial and
industrial uses, and that the use of the site for housing rather
than commerce would have a negative impact on municipal tax
revenues.
The HAC acknowledged that the construction of housing at
the site was contrary to Andover's interest of developing all
the lots in the office and industrial park for commercial use.
In this regard, it considered the board's "strongest argument"
20
to be that, based on unrebutted testimony, a business on the
site could generate from 400 to 800 jobs. However, the HAC
found that "it is by no means apparent that a business employing
those workers would not simply locate in another part of
Andover." Indeed, the fact that this hoped-for employer had not
materialized on the site was the very reason the previous owner
sold it to the developer. Moreover, the HAC noted that the area
was already well established as a business zone, and that
because the proposed housing development would be built on the
last vacant lot, the board "cannot point to possible foregone
employment associated with future businesses that might be
reluctant to locate in a subdivision whose future is uncertain."
Accordingly, the HAC concluded, "On the evidence presented to
us, we find that the importance of the interest in job creation
in this situation is relatively low."
With respect to the claimed "important interest in
preventing conflicts that may arise after construction between
the users of adjacent residential and commercial industrial
sites," the HAC found the evidence vague and speculative. None
of the abutters' witnesses on this issue was able to provide
specific evidence of incompatibility. The evidence showed that
"all of the ten existing business sites contain offices," and
"while many of them also contain research and development
activities or manufacturing, their operations are not of the
21
sort that would generally be perceived as offensive." One
witness described "noise disturbance and heavy truck traffic,"
but another found no "noise vibrations, fumes, odors, truck
traffic or the like." Although the HAC acknowledged that minor
conflicts could occur, such as "children occasionally riding
bicycles on private property," it concluded that the interest
"in preventing conflicts between residential and office and
industrial uses at this location is of negligible importance."
Finally, when reviewing the concern regarding municipal tax
revenue, the evidence showed that the potential property tax on
a new industrial or commercial facility, from $600,000 to $1
million annually, would be largely offset by tax benefits that
Andover offers to business property owners. The total annual
property tax revenue from all ten existing businesses was only
$1.5 million. The HAC found the evidence to be "ambiguous, and
without further elaboration it is insufficient to show that
foregone [sic] tax revenues are of great importance."
Turning to the quality of the master plan and the results
achieved in terms of affordable housing, the HAC identified as a
"major shortcoming" the fact that "multifamily housing is not
permitted as of right anywhere in the town." While the master
plan does give "careful thought" to affordable housing and
provides "effective planning tools," the HAC found that the
"evidence is not detailed, however, nor is it clear to what
22
extent town staff or volunteer groups have been assigned
responsibility for specific actions and have followed through on
those actions." Thus, although the HAC found the master plan to
be "generally implemented" and of "moderate quality," it
concluded that Andover had done little to encourage affordable
housing. The affordable housing that had been built was not "as
a result of the town's planning efforts" but, rather, "despite
the town's master plan and affordable housing plan."
Balancing what it found to be relatively weak interests
asserted by the board and the abutters against Andover's failure
to meet the statutory minimum ten-percent affordable housing
obligation, the HAC concluded that the board "has not sustained
its burden of proof, but that, on the contrary, the local
concerns it has asserted do not outweigh the regional need for
affordable housing." "[W]e give 'due weight to the experience,
technical competence, and specialized knowledge of the agency,
as well as to the discretionary authority conferred upon it,'
G. L. c. 30A, § 14(7), and we 'apply all rational presumptions
in favor of the validity of the administrative action.'"
Lunenburg, 464 Mass. at 43, quoting from Middleborough v.
Housing Appeals Comm., 449 Mass. at 524. Moreover, we "may not
displace an administrative board's choice between two fairly
conflicting views, even though the court would justifiably have
made a different choice had the matter been before it de novo."
23
Zoning Bd. of Appeals of Wellesley v. Housing Appeals Comm., 385
Mass. 651, 657 (1982). Giving the appropriate deference to the
HAC, we hold that its decision to require Andover to issue a
comprehensive permit to the developer is supported by
substantial evidence, and is not arbitrary, capricious, or
otherwise contrary to the law. See Lunenburg, supra;
Sunderland, 464 Mass. at 172.
Judgment affirmed.