Board of Appeals v. Housing Appeals Committee

Marshall, C.J.

(concurring). The decision of the Housing Appeals Committee (HAC) and the affirming decision of the judge in the Superior Court are entirely consistent with the legislative goal of promoting the construction of badly needed affordable housing in this Commonwealth. I concur in the result that the court reaches today reversing those decisions only because the Department of Housing and Community Development (department), of which the HAC is a part, G. L. c. 23B, § 5A, has not promulgated regulations to address the issue presented in this *597 case. See G. L. c. 23B, § 6 (“The director shall make, and from time to time revise, regulations for the conduct of the business of the department, and such other regulations as may be required by law”). While the issue is not before us, I conclude that regulations, promulgated after notice and comment, further defining “uneconomic,” as that term is used in G. L. c. 40B, would fall within the department’s broad authority and would provide clear standards to enable consistent decision-making by the HAC. In the absence of any such governing regulations, the language of G. L. c. 40B, compels the result reached here.

It is clear that the reality of the development of affordable housing projects has changed significantly in the nearly forty years since the enactment of G. L. c. 40B, §§ 20-23, inserted by St. 1969, c. 774. Exclusionary zoning practices, which the statute is intended to overcome, ante at 582-583, have taken a new and apparently unforeseen form. That a local zoning board would, as the Woburn board is charged with doing here, drastically cut the size of a proposed project or would impose other onerous conditions that fall short of rendering the entire project “uneconomic,” even where a far larger project is entirely consistent with local needs, likely did not occur to the Legislature in 1969. Our decision thus allows a local board unfettered discretion to stymie the construction of an affordable housing project without actually denying it or rendering it uneconomic, and insulates such a board’s decision from review by the HAC. The Legislature’s goal of overcoming exclusionary local practices is thus thwarted. See Taylor v. Housing Appeals Comm., ante 149, 151 (2008), quoting Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 354 (1973) (“The primary purpose of the act is ‘to provide relief from exclusionary zoning practices which prevent[] the construction of badly needed low and moderate income housing’ ”).

The HAC and the Superior Court judge, relying on HAC decisions, attempted to solve this problem by treating the board’s action as a “de facto,” or constructive, denial. The principle that a party might be found to have constructively taken some action — particularly by imposing intolerable conditions that force another party’s hand — is well established in our law. See, e.g., GTE Prods. Corp. v. Stewart, 421 Mass. 22, 33-35 (1995) (discussing constructive discharge, in which employee’s resignation *598 due to employer’s conduct is regarded as termination by employer). The difficulty is that at present, the only form of constructive denial provided by G. L. c. 40B and its implementing regulations is an approval that renders an entire project uneconomic. Ante at 594. Nothing in G. L. c. 40B or in any of the implementing regulations promulgated by the department provides any guidance as to when a dramatic reduction in the size of a project might be deemed uneconomic.

If a local board conditions the issuance of a comprehensive permit on drastically reducing the size of a project, and the HAC concludes that the reduction is unjustified and that a project of a larger size than allowed by the board would be consistent with local needs, the HAC should have the authority to consider whether the project is effectively uneconomic under appropriately promulgated regulations. The department possesses extensive authority to promulgate appropriate regulations, G. L. c. 23B, § 6, and to do so would provide much-needed guidance for the HAC, as well as for developers and municipalities. See, e.g., Middleborough v. Housing Appeals Comm., 449 Mass. 514, 524-525 (2007) (department did not exceed authority by promulgating regulation with expansive definition of “subsidy”); Zoning Bd. of Appeals of Wellesley v. Housing Appeals Comm., 385 Mass. 651, 654-656 (1982) (upholding regulation providing that projects financed by Massachusetts Housing Finance Agency were within definition of “low or moderate income housing”). Regulations defining “uneconomic” might, for example, assist the HAC in determining when a reduction in the number of units renders a project uneconomic, defining “reasonable return,” or perhaps providing that a reduction over a certain percentage should be presumed uneconomic. In the absence of appropriate regulations, a local board remains free to impede the pace at which affordable housing units — so urgently needed — are constructed in the Commonwealth, even if a larger project would be entirely consistent with local needs.