Petition — Board of Appeals v. Housing Appeals Committee

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Supreme Court of the United States.

Ocrosze Term, 1977.

No.

BOARD OF APPEALS OF SCITUATE,

PETITIONER,

HOUSING APPEALS COMMITTEE anp

PLANNING OFFICE FOR URBAN AFFAIRS, INC.,

REesPONDENTS.

ON APPEAL FROM A JUDGMENT OF THE

MASSACHUSETTS SUPREME JUDICIAL COURT.

Petition for Writ of Certiorari to the Supreme Judicial

Court of the Commonwealth of Massachusetts.

CounseL ror Psetrrronzr,

Waurer H. McLaveutum, Jr.,

Wuaiasm F, Yorx,

Gumay, MoLavcsiim

& Hawnanan,

Ten Post Office Square,

Boston, Massachusetts 02109.

(617) 482-1900

ADDISON C. GETCHELL & SON, INC., THE LAWYERS’ PRINTER, BOSTON

Table of Contents.

Opinions Below

Jurisdiction

Question Presented

Constitutional Amendment Involved

Statement of the Case

Reasons For Granting Writ

Conclusion

Appendix

Order of Massachusetts Supreme Judicial Court,

September 27, 1977

Journal Entry of Judgment in the Massachu-

setts Supreme Judicial Court, September 27,

1977

Opinion and Judgment of the Massachusetts

Appeals Court, July 27, 1977

Opinion of the Superior Court, Plymouth

County, Massachusetts, June 28, 1976

Judgment of the Superior Court, Plymouth

County, Massachusetts, June 30, 1976

Decision of the Housing Appeals Committee,

Massachusetts, March 14, 1975

Table of Authorities Cited.

CaseEs.

Board of Education v. Allen, 392 U.S. 236 (1968)

Everson v. Board of Education, 330 U.S. 1 (1947)

Hunt v. MeNair, 413 U.S. 734 (1973)

Lemon v. Kurtzman, 403 U.S. 602 (1971)

Roemer v. Board of Public Works of Maryland, 426

U.S. 736 (1976)

ow wow w pn

6,7, 8

6, 7

ii TABLE OF AUTHORITIES CITED

Tilton v. Richardson, 403 U.S. 672 (1971) 9

Walz v. Tax Commission, 397 U.S. 664 (1970) 7, 8, 9

CONSTITUTIONAL PROVISIONS AND STATUTES.

U. S. Const., Amend. | 3, 5, 6, 7, 8, 10

U. S. Const., Amend. XIV 6

28 U.S.C. §§ 1257(3) 3

M.G.L. ¢«. 40A, § 14 2, 4

M.G.L. ¢. 40B 2, 6

$$ 20-23 3

St. 1966, c. 708 3, 6

Supreme Court of the United States.

Octoser Term, 1977.

No.

BOARD OF APPEALS OF SCITUATE,

PETITIONER,

Vv.

HOUSING APPEALS COMMITTEE anp

PLANNING OFFICE FOR URBAN AFFAIRS, INC.,

RESPONDENTS.

ON APPEAL FROM A JUDGMENT OF THE

MASSACHUSETTS SUPREME JUDICIAL COURT.

Petition for Writ of Certiorari to the Supreme Judicial

Court of the Commonwealth of Massachusetts..

To the Honorable, the Chief Justice and Associate Jus-

tices of the Supreme Court of the United States:

The Board of Appeals of Scituate, the Petitioner here-

in, prays that a Writ of Certiorari issue to review the

judgment of the Supreme Judicial Court of the Common-

wealth of Massachusetts, which judgment denied Petition-

er’s Application for Further Appellate Review of the’

Judgment of the Appeals Court of the Commonwealth

of Massachusetts. That judgment finally denied Petition-

er’s Petition for Review filed in the Superior Court of

Plymouth County, Commonwealth of Massachusetts, pur-

suant to the M.G.L. ¢. 830A, § 14. Said Petition requested

that Court to (1) Annul the decision of Respondent

Housing Appeals Committee (Committee) dated March 14,

1975; to affirm the decision of the Petitioner dated June 29,

1973, and to dismiss the Respondent Planning Office For

Urban Affairs, Inc.’s (Planning Office) application, pur-

suant to M.G.L. c. 40B, for a Comprehensive Permit to

construct forty (40) units of housing on a certain locus

in the Town of Scituate, Massachusetts; or, (2) Annul

the decision of the Respondent Committee and remand

the case to the Petitioner with an order that the Respond-

ent Planning Office submit to the Petitioner additional

data and information required by State Law and/or the

Town of Scituate’s Rules and Regulations; or, (3) Mod-

ify the decision of the Respondent Committee by allow-

ing the Petitioner to amend the five conditions relating

to the conditional Comprehensive Permit and to allow the

Petitioner to add additional conditions to insure that the

Respondent Planning Office properly complete the project.

Opinions Below.

The Supreme Judicial Court of the Commonwealth of

Massachusetts has issued an order denying Petitioner’s

Application For Further Appellate Review of the Deci-

sion of the Appeals Court of the Commonwealth which

decision affirmed the opinion and judgment of the Superior

Court of Plymouth County. A copy, of the Judgment of

the Supreme Court, the Appeals Court and the Superior

Courts opinion and Judgment appear in the Appendix to

this Petition at pages 11,13 and 14-28 respectively.

Jurisdiction.

The Judgment of the Supreme Judicial Court of the

Commonwealth of Massachusetts was entered on Septem-

ber 27, 1977. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(3).

Question Presented.

Whether the decision of the Respondent Housing Ap-

peals Cummittee in granting State aid to the Roman Cath

olie Archdiocese of Boston for the construction of forty

(40) units of low-moderate income housing is unconsti-

tutional in violation of the Establishment Clause of the

First Amendment of the Constitution of the United States.

Constitutional Amendment Involved.

This case involves Amendment 1 of the Constitution

of the United States. Said Amendment reads as follows:

‘*Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof... .”

Statement of the Case.

On May 1, 1973, the Respondent Planning Office sub-

mitted to the Petitioner an application, pursuant to M.G.L.

e. 40B, §§ 20-23, for a comprehensive permit for con-

struction of forty (40) townhouse-type dwellings to be

situated on approximately five acres of land located in

Scituate. The proposed dwellings are designed to be made

available to low and moderate income families with sub-

sidized financing provided by the Massachusetts Housing

Finance Agency, a State agency pursuant to St. 1966,

ec. 708.

The property in question was purchased and paid for

by Saint Mary’s Parish (a Roman Catholic Church) for

use as a cemetery, and title was taken in the name of

the Roman Archdiocese of Boston. The developer is the

Respondent Planning Office, an agency of the Archdiocese

of Boston, and is acting at the request of the owner of

such property, the Roman Catholic Archbishop of Boston.

The property will be conveyed to the Respondent Plan-

ning Office prior to the closing of the mortgage loan from

the State agency, the Massachusetts Housing Finance

Agency.

It is the intention of the Roman Catholic Archdiocese

of Boston and its adjunct, the Respondent Planning Office,

to transfer title to such property to a proposed coopera-

tive corporation owned by the potential occupants of said

dwellings subsequent to completion and occupancy of the

development.

After a properly conducted hearing before the Peti-

tioner, with regard to the application of the Respondent

Planning Office for a Comprehensive Permit, the deci-

sion of the Petitioner denying the application was filed

on June 29, 1973. The Respondent Planning Office ap-

pealed that denial to the Respondent Committee.

After hearing and argument the Respondent Committee

issued its decision on March 14, 1975, finding that the

Petitioner’s denial of the application was not consistent

with local needs and was determined to be unreasonable.

Thereafter, on April 11, 1975, the Petitioner filed its

Petition for Review in the Superior Court of Plymouth

County, pursuant to the provisions of M.G.L. ce. 30A, 4 14.

On July 8, 1976, the Judgment of the Superior Court

was entered denying the Petition for Review and affirming

the decision of the Respondent Committee. On July 27,

1977, the Appeals Court affirmed the Judgment of the

Superior Court. Subsequently, on September 27, 1977,

the Supreme Judicial Court denied the Petitioner’s Ap-

plication for Further Appellate Review.

The Constitutional issue which is the focus of this Pe-

tition wes first raised by the Petitioner in the Superior

Court of Plymouth County. The Complaint (Petition),

as amended, contained the following language in para-

graph 9(a)(a) thereof:

‘‘The Committee's decision is in violation of the

First Amendment of the Constitution of the United

States of America in that it renders state aid to a

Religious organization, thereby constituting an estab-

lishment of Religion.’’

After hearing and Argument. the Justice of the Su-

perior Court rejected the Petitioner’s First Amendment

argument finding there was no tendency to entangle the

State excessively in Chureh affairs. (Appendix pp. 16-18).

Thereafter, the Appeals Court adopted the decision of

the Superior Court (Appendix p. 13) and the Supreme

Judicial Court denied Further Appellate Review based

thereon. (Appendix p. 11).

Reasons for Granting Writ.

The Petitioner has come to this Honorable Court seek-

ing to have it review the decision entered by the Courts

of Massachusetts in regard to the above-entitled action.

The contention of the Petitioner, is that based upon the

unique factual situation presented herein, the Massachu-

setts Courts have decided this action contrary to the in-

tent and language of the First Amendment and the ap-

plicable decisions of this Honorable Court.

The command of the First Amendment that ‘‘Congress

shall make no law respecting an establishment of religion

or prohibiting the free exercise thereof,’’ is applicable to

the states through the due process clause of the Four-

teenth Amendment. See, Roemer v. Board of Public Works

of Maryland, 426 U.S. 736 (1976); Everson v. Board of

Education, 330 U.S. 1, 8 (1947).

The First Amenument granted to the people of the

United States one of the fundamental and basic rights for

which they fought. That right was to be able to practice

and worship without involvement between the church and

the state. Although a system of government which makes

itself felt as pervasively as ours hardly could be expected

never to cross paths with the church, the Supreme Court

has historically taken the view that a secular purpose and

facial neutrality may not be enough if in fact the state is

lending direct support to a religious activity. See, Roemer

v. Board of Public Works of Maryland, supra, at 747.

The Respondent Planning Office has openly stated that

it is in fact, affiliated with and part and parcel of the

Catholic Church of the Archdiocese of Boston. Further,

the financing of the proposed M.G.L. c. 40B development

will be obtained from the Massachusetts Housing Finance

Agency, an agency of the state government of the Com-

monwealth of Massachusetts. See, St. 1966, c. 708. Thus,

in effect, what we have is a state agency directly financing

the Church in a real estate development business.

In the case of Lemon v. Kurtzman, 403 U.S. 602 (1971),

the Supreme Court, although admitting that it is not al-

ways easy to identify a state action which is violative of

the Establishment Clause of the First Amendment, did

state that the three main evils against which the Estab-

lishment Clause was intended to afford protection were

‘*sponsorship, financial support, and active involvement

of the sovereign and religious activity’’, supra at 612;

citing, Walz v. Tax Commission, 397 U.S. 664, 668 (1970).

Thus, the Supreme Court has succinctly stated that one

evil from which we are proteeted by the Establishment

Clause is financial support given by a government insti-

tution to any religious activity. The Petitioner submits

that that is precisely the form of church-state entangle-

ment which the Respondent Committee seeks to permit.

Although a long line of cases has established a three-

pronged test to be considered in determining whether an

action violates the Establishment Clause, a violation of

any of the three factors involved is sufficient to render

the action violative of the Constitution. See, Lemon v.

Kurteman, supra.

The three tests are as follows. First, the statute must

have a secular legislative purpose; second, its principal

or primary effect must be one that neither advances nor

inhibits religion (Board of Education vy. Allen, 392 U.S.

236, 243 (1968)). Finally, the statute must not foster an

excessive government entanglement with religion. Lemon

v. Kurtzman, supra at 612-613; Hunt v. McNair, 413 US.

734, 741 (1973).

The Petitioner submits that the final test set forth in

the previously cited cases, that is, that the action must

not foster,an excessive government entanglement with re-

ligion, hes teen blatantly violated by the action of both

the Respondent Committee and the Massachusetts Hous-

ing Finance Agency.

A review of the case law developed under the First

Amendment has disclosed no case directly on point with

the instant factual situation. In the case of Everson v.

Board of Education, 330 U.S. 1 (1947), a case which in-

volved free bus transportation for parochial school pu-

pils, the Supreme Court upheld a statute as constitutional.

The reasoning and logic behind the Everson decision, id.,

‘ was that the statute did not breach the ‘‘wall of separa-

tion” between church and state, but merely provided a

means of getting children to and from school. The deci-

sion emphasized that the state was in no way funding

religious education, but was merely providing transporta-

tion. Everson is clearly not applicable to the instant situ-

ation.

The factual situation in our case discloses that state

funding is going directly to a church interest, and, thus,

there is a breach of the sacred ‘‘wall of separation.’’ The

fact that the archdiocese may or will in the future turn

the project into a cooperative tenant development does

not change the factua! situation as it exists today. For

this Court to allow a violation of the First Amendment

because of some proposed future activity would be in

clear violation of the intent of the Establishment Clause.

In the case of Walz v. Tax Commission, supra, the Su-

preme Court upheld the granting of a property tax ex-

emption to religious organizations. The Court’s rationale

was that this procedure was neither sponsorship nor hos-

tility, that it was simply the sparing of religion from the

burden of property taxes levied on private, profit insti-

tutions, and, therefore, allows the church to abstain from

supporting the state. An analysis of the Walz case dis-

closes that the reason the Supreme Court allowed the tax

exemption was that to act in a contrary manner would be

permitting the church to support the state, thus piercing

the wall of separation.

Applying the rationale of the Walz case to our instant

factual situation clearly indicates that the proposed de-

velopment is clearly in violation of the First Amendment

of the United States Constitution. Allowing the state to

finance a church development would, contrary t@the rea-

soning applied in Walz v. Tax Commission, supra, permit

a state agency to grant direct financial support to the

church and thus violate the abstention philosophy set forth

in the Walz case.

In the 1971 case of Tilton v. Richardson, 403 U.S. 672

(1971), the Supreme Court found constitutional a govern-

ment grant of construction financing to certain colleges,

some of which were religiously affiliated. That type of

financing was upheld as Constitutional, on the ground that

the aid was a one time grant for religiously neutral build-

ings, and, thus, the ‘‘wall of separation’’ between church

and state was not breached. Admittedly, the Supreme

Court in Tilton drew a very fine line regarding the church

and state involvement issue, but the Tilton case hinged

upon the fact that it was merely a one time grant. The

instant factual situation reveals that the Massachusetts

Housing Finance Agency funding is not a one time grant,

but in fact extends over a period of time.

Another distinguishing factor is the considerable tax

benefit which will be accorded the church under the pro-

posed development. Again, the fact that the Respondent

Planning Office might convey the property to a coopera-

tive tenant organization some time in the future after

construction and occupancy does not veil the fact that, for

a period of time at least, the state will be funding a reli-

gious activity. Thus, the Board submits that the Tilton v.

Richardson, supra, decision was based upon a unique fac-

tual situation and is inapplicable to the instant contro-

versy.

Accordingly, in light of the fact that the granting of

government (state) financing by the Massachusetts Hous-

ing Finance Agency to the Respondent Planning Office

(Archdiocese) discloses and fosters excessive government

entanglement wiih religion and, thereby, breaches the

‘‘wall of separation’’ between church and state which has

been established by the First Amendment of the United

States Constitution, the instant decision should and must

be reviewed due to the flagrant violation of the First

Amendment to the United States Constitution occasioned

thereby.

Conclusion.

Wherefore, Petitioner respectfully prays that a Writ

of Certiorari be granted.

Respectfully submitted,

The Petitioner,

By its attorneys,

WALTER H. McLAUGHLIN, JR.,

WILLIAM F,. YORK,

GILMAN, McLAUGHLIN

& HANRAHAN,

Ten Post Office Square,

Boston, Massachusetts 02109.

(617) 482-1900

APPENDIX.

Order of Massachusetts Supreme Judicial Court.

COMMONWEALTH OF MASSACHUSETTS,

SuprEME JupictaL Court For THE CoMMONWEALTH,

At Bosron, September 27, 1977.

ORDER

It is hereby ORDERED, that the following Applica-

tions for Further Appellate Review be denied:

M-797 BOARD OF APPEALS OF SCITUATE

HOUSING APPEALS COMMITTEE

(Appeals Court No. 76-590; Plymouth Superior

No. 75-1348)

Journal Entry.

Massacuusetts Supreme Jupician Court Docket,

No. M797

BOARD OF APPEALS OF SCITUATE

VS.

HOUSING APPEALS COMMITTEE

COUNSEL FOR PLAINTIFF COUNSEL FOR DEFENDANT

Walter H. McLaughlin, Jr. Paula Rosen

William F. York James Dolan

Plymouth Superior

#75-1348

A.C. 76-590

Entered August 16, 1977

8/16/77 Plaintiff’s Application for Further Appellate

Review.

8/26/77 Defendant’s opposition to Further Appellate Re-

view filed by James G. Dolan, Jr.

9/27/77 Application for Further Appellate Review DE-

NIED.

December 21, 1977

A true copy.

Attest: /s/ William M. Cloran

William M. Cloran,

Assistant Clerk for the Supreme

Judicial Court for the Commonwealth

of Massachusetts

Opinion and Judgment of the Massachusetts Appeals Court.

P. 76-590 Appeals Court

BOARD OF APPEALS OF SCITUATE vs. HOUSING

APPEALS COMMITTEE & another.

The only two points argued on appeal were properly

decided by the trial judge for the reasons stated in his

findings of fact and conclusions of law.

Judgment affirmed.

Opinion of the Superior Court.

COMMONWEALTH OF MASSACHUSETTS

Plymouth, ss. Superior Court

Civil Action

No. 1348

ROBERT M. ALEXANDER, PAUL J. CORELL,

ROBERT D. LORING, as they are members of the

ZONING BOARD OF APPEALS OF THE TOWN

OF SCITUATE,

Plaintiff,

vs.

DOROTHY ALTMAN, WILLIAM C. AMES,

MAURICE CORMAN, C. WESLEY DINGMAN,

PETER GARLAND, as they are members of the

HOUSING APPEALS COMMITTEE

and

THE PLANNING OFFICE FOR URBAN AFFAIRS,

INC,

This is a petition for review filed pursuant to the pro-

visions of G.L.C. 30A, Sec. 14, by the Zoning Board of

Appeals of the Town of Scituate. It seeks review of a

decision of the Housing Appeals Committee of the De-

partment of Community Affairs which vacated a decision

of the Scituate Zoning Board of Appeals, the Plaintiff

herein, denying the application of the Planning Office for

Urban Affairs, Inc., a corporation organized under G.L.C.

180, for a comprehensive permit to build low and moder-

ate income housing.

1. On or about May 1, 1973, the Planning Office for

Urban Affairs, Inc., submitted to the Zoning Board of

Appeals of the Town of Scituate an application (pursuant

to G.L.C. 40B, Sec. 20-23) for a comprehensive permit for

construction of forty townhouse-type dwellings on approxi-

mately five acres of land located at the southeasterly in-

tersection of Stockbridge Road and Meeting House Lane

in Scituate.

2. The proposed dwellings are designed to be made avail-

able to low and moderate income families with subsidized

finauciig to be provided by the Massachusetts Housing

Finance Agency.

3. Subsequent to the completion and [occupancy] of the

dwellings, the mortgagor corporation would transfer title

to @ new cooperative corporation owned by the occupants

of the dwellings.

4. After a properly conducted hearing before the Zoning

Board of Appeals, a written decision denying the applica-

tion was filed with the Town Clerk on June 29, 1972.

5. The Planning Office appealed that denial to the Hous-

ing Appeals Committee. After a view of the premises by

members of the Committee and counsel, adjudicatory hear-

ings were held on five separate dates from August 7, 1973,

to October 4, 1973.

6. On March 14, 1975, the Housing Appeals Committee

issued a decision finding the Zoning Board’s denial of the

application not to be consistent with local needs and to

be unreasonable. The Committee issued an order vacating

said decision and directed that the comprehensive permit

be issued, but specified conditions. (Record 30, pp. 29-31,

attached to Petition for Review.)

7. The Zoning Board has appealed the decision of the

Housing Appeals Committee to this Court pursuant to

G.L.C. 30A, See. 14, seeking determination of the follow-

ing issues specified in its Brief: —

(1) Whether the decision of the Housing Appeals

Committee in granting state aid to the Planning Office for

Urban Affairs, Inc., a part of the Roman Catholic Arch-

diocese of Boston, is unconstitutional in violation of the

establishment clause of the First Amendment of the. United

States Constitution.

(2) Whether the decision of the Housing Appeals

Committee was legally and properly rendered in accord-

ance with the requirements of G.L.C. 30A, See. 11(7).

(3) Whether the decision of the Housing Appeals

Committee was arbitrary, capricious, and unsupported by

substantial evidence.

8. The First Amendment Issue.

This issue was added by an Amendment to Plaintiff’s

Complaint adding Paragraph 9(a)(a). ‘‘The Committee’s

decision is in violation of the First Amendment of the

Constitution of the United States of America in that it

renders state aid to a religious organization, thereby con-

stituting an establishment of Religion.’’ (Other constitu-

tional issues raised by an Intervenor, before the Commit-

tee, one Peter Kennedy an abutter who has moved to Cali-

fornia, were disposed of by the Hanover’ case and by

Mahoney v. Board of Appeals of Winchester.?) Plaintiffs

argue that because the C. 180 corporation is an arm of

Roman Catholic Archdiocese of Boston, and since financing

of the proposed low and moderate income housing de-

velopment is to be by a State agency, MHF A,’ ‘‘the wall

of separation’’ between church and State will be breached,

— there will be ‘‘an excessive entanglement with religion.’’

The argument relies on Walz v. Tax Commission, 397

1 Board of Appeals of Hanover v. Housing Appeals Committee,

etc., 363 Mass. 339.

21974 A.S. 1419, 420 U.S. 903, 4 L E 2nd 834, 95 S.C. 822.

’ Under C. 708, Acts 1966, as amended.

U.S. 664, 668 (1970), Lemon v. Kurtzman, 403 U.S. 602

(1971) and Hunt v. MeNair, 413 U.S. 734, 731 (1972) and

attempts to distingrish Tilton v. Richardson, 403 U.S. 672

(1971) on the ground that the financing of religiously af-

filiated colleges in that case was ‘‘a one-time grant’’ and

this proposed financing extends over a period of time.

However, Law Week, Vol. 44, No. 50, Page 4939 reports

the United States Supreme Court decision of June 21,

1976, in the case of John C. Roemer, III, et al vs. Board

of Public Works of Maryland. That decision clearly imdi-

cates that adoption of Plaintiff’s First Amendment argu-

ment would be tantamount to placing barbed wire on top

of the wall separating church and State. Here the con-

cern is for people of low and moderate income whose hous-

ing needs are not being adequately met according to stand-

ards set by State statute. This is certainly a secular pur-

pose. The occupants of the dwellings will be the ultimate

owners through a cooperative corporation. The occupants

will be chosen by measurements of need, and no discrimi-

nation because of race, color, religion or national origin

will be permitted.* The Archdiocese is not only providing,

donatively if necessary, land for the site, but has already

expended obviously substantial sums for this project since

the inception of the program over three years ago.® The

selection of tenants will not only be non-discriminatory,

but the ecumenical clergy of Scituate and the Scituate

Housing Authority will be asked to participate in the en-

tire selection process of occupants of the housing,* who

* Record No. 32-3, (Appellant Exhibit 3 before HAC) pp. 4, 5,

7, 11 and 12.

5 Record No. 32-3, Pg. 8, middle paragraph.

®* Record No. 32-3, Pg. 12.

(a) References to Record are to Index of items in Certification

by HAC Chief Counsel. Note that Items 32, 33 list HAC hearing

Exhibits. Record items 6, 11-14, and 16 are the 5 transcript vol-

umes of HAC hearing.

will become the owners of the premises through the co-

operative corporation. The First Amendment issue is in

this case a mere figment. There is here ‘‘a secular pur-

pose, a primary effect other than the advancement of reli-

gion, and no tendency to entangle the State excessively in

church affairs.” Roemer v. Board of Public Works of

Maryland supra @ 4942.

9. WAS THE HAC DECISION IN ACCORD WITH

THE REQUIREMENTS OF G.L.C. 30A, SEC. 11(7)?

Plaintiffs contend there was non-compliance with Sec.

11(7) which requires that ‘‘if a majority of the officials

of the agency who are to render the final decision have

neither heard nor read the evidence’’ there must be ‘‘a

tentative or proposed decision’’ and ‘‘an opportunity —

to file objections and to present argument’’ (underlining

supplied).”? In this case the hearing members were three

in number. (The other two agency members having quali-

fied as such after the hearings commenced chose not to

participate.) Therefore, the three hearing members were

those ‘‘officials of the agency who are to render the final

decision.’’ Two of the those three were present at all

hearings, and the third read the briefs and portions of

the transcript. Therefore, there was no necessity for sub-

mission of a tentative or proposed decision and oppor-

tunity to file objections and to present argument. The

two who were present at all hearings were ‘‘a majority

of the officers of the agency who are to render the final

decision’ (underlining supplied). Plaintiff’s argument

contending non-compliance with Section 11(7) is based on

a misinterpretation of the decision in Board of Appeals

of Maynard vs. Housing Appeals Committee, Mass. Ad.

Sh. (1976) 902, 904. In that case, as in this, a majority of

three hearing members either attended hearings or read

™G.L.C. 30A, See. 11(7).

transcripts, and they also gave the board of appeals a

proposed decision and an opportunity to file objections

and present arguments. The Court upheld the propriety

of the procedure ‘‘both on the ground that a majority of

the deciding officials heard or read the evidence and on

the ground that there were a proposed decision and a stat-

utory ‘oppo:tunity.’’’ Plaintiff attempts to elicit from

the Court’s language that if there had not been a proposed

decision and a statutory opportunity it would not have

ruled the procedure proper. Such a negative pregnant is

impermissible in the light of the plain English meaning

of the statute. If the statutory words were ‘‘a majority

of the officials of the agency which is to render the final

decision’’ there would be merit to plaintiff's argument, but

the statutory words are ‘‘who are to render,’’ —so that

when three out of five agency members are the hearing

officials and a majority of the three either hear or read

the testimony, there is no necessity for a tentative or pro-

posed decision and a statutory opportunity. Because in

the Maynard case HAC gilded the lily by unnecessarily

submitting a proposed decision and giving an opportunity

for objection and argument does not mean that the statu-

tory language has any different meaning than the plain

English meaning apparent in reading it, and the Maynard

decision has not ‘‘established a two-tiered requirement’’

as the Plaintiff argues in its brief. Moreover, the argu-

ment in the brief that a contrary decision would violate

**the constitutional due process rights of all parties’’ is

a bald assertion with no case or rationale to support it.

10. WAS THE HAC DECISION SUPPORTED BY

SUBSTANTIAL EVIDENCE?

Board of Appeals of Hanover v. Housing Appeals Com-

mittee, 73 AS 491 defines substantial evidence as: ‘‘such

evidence as a reasonable mind might accept as adequate to

support a conclusion’’ (P. 523). The Court must take

into account evidence that detracts from the weight of the

supportive evidence (P. 523).

The Committee in reviewing the Board’s decision must

determine whether the granting of the permit would be

reasonable and consistent with local needs. In determin-

ing whether it is consistent, Sec. 20 provides that the

Board should consider and balance the regional need for

low and moderate income housing against any objection

to the details of the proposed plan. This requires a con-

sideration of the regional need with the number of low

income persons in the city or town affected (Hanover,

P. 513) and with the local need to protect health and safety

of the occupants and residents of the town, and to pro-

mote better site and building design in relation to the

surroundings, or to preserve open spaces, G.L.C. 40B,

Sec. 20.

I. REGIONAL NEED.

Plaintiff concedes, Page 2 of its Brief, that the Town

has not met one of the three housing requirements of

G.L.C. 40B, Sec. 20.

As to Regional Need the Committee heard testimony by

Anton Finelli, a staff member of the Planning Office; by

Stephen Dubuque, a staff member of the South Shore

Community Action Council; and from Ms. Majorie Gar-

dinier, an administrator of the surplus food distribution

program in the Town of Scituate. Their testimony was

based upon data obtained from the 1970 U.S. Census, the

guidelines of the Department of Community Affairs and

HUD guidelines for public housing eligibility, and from

MAPC and MHFA reports and data.

Neither the Town Board nor the intervenor introduced

any rebuttal evidence vn the issues of regional need or on

the number of low income persons residing within the

Town of Scituate. Plaintiff’s Brief deprecates the evi-

dence offered on regional need but fails to show that it

was not substantial. There was substantial evidence be-

fore the Committee showing that there are 251,052 house-

holds in the Boston Standard Metropolitan Statistical

Area (which includes Scituate) eligible for low income

housing. An additional 166,728 more were eligible for

moderate income housing (Tr. 2:54). The eight town

regions studied (including Scituate, Hull, Cohasset, Nor-

well, Hanover, Marshfield, Pembroke, and Duxbury) con-

tain 1,966 families on public assistance who would be eligi-

ble for public housing and 2,253 families whose income is

between $2,100-$9,000 who are paying more than 25% of

their incomes for rent. There are only 96 units of low

income housing in the eight-town area (Appellant’s Ex-

hibit No. 7A).

Further testimony showed that 212 Scituate families

were receiving surplus food (Tr. 2:36); 637 Scituate fam-

ilies are eligible for low income housing in Scituate; and

that there were 1,108 moderate income families (Tr.

2: 44-5).

There was substantial evidence before the Committee

showing that there existed a regional and local need for

moderate and low income housing. Record No. 30 (HA[C]

Decision), pp. 7, 8, 9.

Il. SEWAGE.

The proposed system was described to the Committee

by Joseph Schneider, the applicant’s Consulting Engineer.

The system would use an underground duplex pump to

pump the sewage to a point in Meeting House Lane where

it would flow by gravity through a proposed new gravity

line which the applicant would construct, to connect to

the existing public sewer main in Kent Street (Tr. 4: 23-4).

A standby electric generator would also be provided in the

event of a town power failure. The Town Sewer Super-

visor, Mr. Gordon Lampert, testified that he saw no tech-

nical problems with the proposal (Tr. 4:61) and Mr.

Francis Obert, the Town Consultant on sewage found the

entire plan to be acceptable and in accord with sound en-

gineering practice (Tr. 4:61).

The policy of the Committee in not requiring a detailed

sewage plan, and its reliance on preliminary plans does not

appear to be unwarranted, where such detailed plans are

later subject to approval of the State funding agency and

must meet the State Sanitary Code. (See Hanover, P.

528-9). Consequently, there was substantial evidence be-

fore the Committee showing that the sewer system did not

pose any threat or danger to the health and safety of the

public.

Ill. DRAINAGE.

The Committee heard the testimony of Peter Ogren, a

Civil Engineer from the Hayes Engineering Company, the

applicant’s drainage consultant. He testified that he had

visited the site, attended meetings, made tests, and de-

signed the system.

He testified that the site lacked ground-water in the

spring down to a depth of 4 feet (Tr. 4:17). After three

soil tests, the percolation rate was found to be adequate

for use as a sewage disposal field, a more intensive use

than mere drainage (Tr. 4:14). The increased surface

drainage would be handled by increased site storage ca-

pacity, and the site will be graded so that heavy rain run-

off would be guided to a leaching trench, permitting the

rain to leach into the soil (Tr. 4:15).

Plaintiff contends that reliance on a preliminary plan

is not enough, and a detailed plan is necessary. However,

in Hanover, (see P. 529-9), the Court specifically deter-

mined that an applicant need not go to the expense of sub-

mitting detailed plans at the permit stage, since these plans

had to meet State standards. There was substantial evi-

dence showing that the proposed drainage plan did not

endanger the health, safety and welfare of the residents

of the surrounding area.

IV. TRAFFIC.

The Committee heard testimony on this issue from Stan-

ley Siegel, a traffic engineer hired by the applicant, and

from Ms. Dorothy Page, a local resident, appearing for

the Scituate Zoning Board of Appeals.

Mr. Siogel made three traffic volume studies and visited

the site on several occasions. He concluded that an ade-

quate line of sight existed in both directions from the

Stockbridge Road parking lot and found that no traffic

hazard was presented (Tr. 4:59). The Board contends

that Mr. Siegel made no study on weekends. However,

this point is specifically referred to in the decision of the

Committee (P. 14) and it can be inferred that it was con-

sidered by the Committee in making their determination.

It does not, in and of itself, require a finding that their

decision was unsupported by substantial evidence.

Ms. Page testified as to her personal observations over

a long period of time, including her having to wait to

cross the street for long periods of time, and the screech-

ing of brakes in the area (Tr. 4:30). She testified that

traffic was heavier on the weekends due to trips to the

dump on Stockbridge Road, but also testified that the

scheduled closing of the dump would help a lot (Tr. 4:31).

There was substantial evidence before the Committee

showing that no health or safety hazards will be created

by the increased traffic in the area due to the project.

V. SITE AND BUILDING DESIGN.

(The HAC was required to consider this element in

determining whether the project was ‘‘consistent with

local needs,’’ site and building design in relation to sur-

reundings or to preserve open spaces.)

There was evidence before the Committee that the loca-

tion of the site was suitable for the proposed purposes.

The locus is level and open, it is convenieni to schools,

shopping and the facilities of the Town, and is convenient

to existing water and sewer facilities. Mr. Brown, a

planner and landscape artist, testified that it was an ex-

cellent site for the proposed use (Tr. 3:47), and Mr. John

Clancy, the Architect, was impressed with the suitability

of the site (Tr. 3: 44).

The Board argues that the proximity of the site to

Wheeler Park, an elderly housing development, would con-

travene a legislative policy that subsidized housing should

be dispersed. However, the Board can show no clear rule

that would require a finding that the location of one low

and middle income housing development adjacent to a

housing project for the elderly would be contrary to local

need.

The Committee took the proximity of the project to

Wheeler Park into consideration and specifically declined

to find that the proposed housing would have a detrimen-

tal effect on the neighborhood (Decision P. 21-2).

The Board further argues that the site plan was inade-

quate due to the historical nature of the area, and due

to the architectural unity of the area. Again the Com-

mittee heard extensive evidence on this point, and con-

sidered the impact the proposal would have on the area.

The Committee took note that although neither the Mann

House nor the men of Kent Cemetery were in the National

Polly Ann Matherly Rettig, Historian of the Massachu-

setts Historical Committee, was an obvious choice for

nomination (Appellee’s Exhibit No. 9).

Miss Rettig testified that the addition of the develop-

ment to the area would not result in the denial of a sub-

sequent application to have the area officially designated

as an historic area (Tr. 5: 59-60). In addition, in a letter

from Ms. Rettig to Rev. M. F. Groden, she specifically

noted that historic districting should be used as a tool

to promote high quality designs and to achieve a ‘‘com-

patible mix of traditional and modern architectural

styles.’’

There was testimony that there was no predominant

style of buildings in the area, except that it was an area

of primarily single family residences. Mr. Chaloff, the

Board's architectural witness, noted that the character

of the area was mixed (Tr. 4:10). The townhouse was

found to be an appropriate form of multi-family housing

for use in this specific area by the applicant’s consultant

(Tr. 3:49). The Multi-Family Housing Study prepared

by the Town’s planning consultant recommends the use

of townhouses as a transition between single residences

and garden apartments (Appellant’s Exhibit 11).

The Board further alleges several defects in design.

Their witness testified that a number of the proposed units

did not meet FHA minimum standards. However, this

project is being financed by the MHF A, and the plans will

need to meet the MHFA standards.

There was substantial evidence before the Committee

upon which it could preperly base its decision.

VI. LOCAL EFFORT.

The final argument presented by the Board was that

the extent of local effort by the municipality to meet its

minimum requirements as set forth in G.L.C. 40B, Sec. 20,

is to be considered.

The Town of Scituate currently has 80 subsidized hous-

ing units, 15 leased rental assistance units and approval

for 82 additional subsidized housing units (Tr. 1:20). The

local need has been previously dealt with. G.L.C, 40B,

Sec. 20, specifies criteria for determining whether these

needs have been met. These criteria have not yet been

met, and the local effort to meet these requirements does

not necessarily demand denial of this application. The

municipality’s failure to meet its minimum housing obli-

gations provides substantial evidence that the regional need

for housing does in fact outweigh the objections to the

proposal. Hanover, P. 515. Most of the Town’s effort

has been confined to housing for the elderly, very little to

housing for low-income families, and none for a project

such as that here in question, one for mixed low and mod-

erate income families. The evidence is substantial and the

Court finds that local effort has been inadequate.

11. Adverted to in ora] argument but not in the Plain-

tiff’s Brief was a contention of lack of due process be-

cause HAC took notice of and relied on a post-hearing

negative Environmental Assessment Form by MHFA

dated November 6, 1973, which ‘‘received concurrence of

the Secretary of Environmental Affairs on January 23,

1974.’’ (Record No. 30 (HAC Decision) pp. 27-8.) HAC

relies on regulations filed by Department of Environmen-

tal Affairs dated December 31, 1974, published January 8,

1975, a certified copy of which are attached to the Attor-

ney General’s Brief and marked ‘‘B’’. Perhaps failure

to argue this aspect in the Plaintiff’s Brief is due to the

fact that it does not deny the facts of which HAC took

notice, viz..an MHFA negative EAF, and the concurrence

of the Secretary of Environmental Affairs as well as the

Regulations of the Department. (See Bailey v. Board of

Appeals of Holden, Mass. AS 1976, 945, 949, Footnote 5.)

The Board could have specified as a condition of the com-

prehensive permit that it not be implemented until MHFA

had complied with G.L.C, 30. This Court has authority to

amend the HAC decision in like manner and is doing so

to avoid any prolongation of this dispute, and to resolve

this issue.

12. Judgment is to be entered that the Decision of the

Housing Affairs Committee was based on substantial evi-

dence and is affirmed with an amendment, that a condi-

tion be added to those specified by the Committee, viz.,

that the comprehensive permit be not implemented unless

and until it appears as a matter of record that Massa-

chusetts Housing Finance Agency has complied with the

requirements of G.L.C, 30 in respect to this project.

/s/ Joseph K. Collins

Associate Justice of the Superior Court

Entered: June 28, 1976

Judgment of the Superior Court.

COMMONWEALTH OF MASSACHUSETTS

PLYMOUTH, ss SUUPERIOR COURT

CIVIL ACTION

No. CA75-1348

ROBERT M. ALEXANDER ET ALS.,

Plaintiff (s)

vs.

DOROTHY ALTMAN ET ALS.,

JUDGMENT ON FINDINGS BY THE COURT

This action came on for (trial) before the court, Collins,

J. presiding, and the issues having been duly (tried) and

findings having been duly rendered,

It is ORDERED and ADJUDGED as follows:

1. That the Decision of the Housing Affairs Committee

was based on substantial evidence and is affirmed with an

amendment, that a condition be added to those specified by

the Committee, viz., that the comprehensive permit be not

implemented unless and until it appears as a matter of

record that Massachusetts Housing Finance Agency has

complied with the requirements of G.L.C. 30 in respect to

this project.

Dated at Plymouth, Massachusetts, this 30th day of June

1976.

FORM OF JUDGMENT APPROVED:

/s/ Joseph K. Collins, J.

Associate Justice of the

Superior Court ARTHUR T. MURPHY, CLERK

By: /s/ Gregory R. Baler

Assistant Clerk

MRCP Form 9A _ 5-7-75

Decision of the Housing Appeals Committee.

COMMONWEALTH OF MASSACHUSETTS

DEPARTMENT OF COMMUNITY AFFAIRS

HOUSING APPEALS COMMITTEE

PLANNING OFFICE FOR URBAN AFFAIRS, INC,

SCITUATE BOARD OF APPEALS

DECISION

I. STATEMENT OF PRIOR PROCEEDINGS

The Planning Office for Urban Affairs, Inc.,’ a chapter

180 nonprofit corporation, submitted to the Zoning Board

of Appeals of the Town of Scituate* an application under

chapter 774° for a comprehensive permit to construct forty

units of low income, town-house type co-operative housing,

on a site at the intersection of Stockbridge Road and Meet-

ing House Lane in Scituate, with subsidy financing from

the Massachusetts Housing Financ. Agency (M.H.F.A.).

After due notice, an administrative (non-adjudicatory)

hearing was duly held by the Board, which, on July 1973

filed its decision denying the application.

From that denial, the Appellant appealed to the Housing

Appeals Committee (H.A.C.). After a site visit, attended

by members of the Committee, its counsel, and counsel for

all parties, the Committee conducted an adjudicatory hear-

1 Hereinafter referred to variously as ‘‘Appellant’’, ‘‘Peti-

tioner’’, ‘‘ Applicant’’.

2 Hereinafter referred to variously as ‘‘ Appellee’’, ‘‘the Board’’.

8 St. 1969 c. 774, now G.L. ec. 40B ss. 20-23, hereinafter referred

to as ‘‘Chapter 774), ‘‘the Statute’’. Sections 20-23 of ¢. 40B

maybe mentioned without repeating ¢. 40B.

ing on the appeal, a provided by the Statute, covering five

sessions. Witnesses were sworn and full right of cross

examination was afforded all parties. At the initial hearing

Peter Kennedy, Esq., an abutter, was permitted on motion

to intervene as a party to the proceedings.

Il. Issues

The Statute provides that the sole issue before the Com-

mittee is whether the denial by the Board is ‘‘consistent with

local needs’’ as that phrase is defined in section 20. In fact

the Statute uses the phrase ‘‘reasonable and consistent with

local needs’’. The Appellee contended, in effect, that it was

part of the Appellant’s burden of proof to show that the

denial was not ‘‘reasonable’’ as well as not ‘‘consistent with

local needs’’. In ruling against this contention, and against

the introduction of evidence solely on the issue of reason-

ableness, the Committee followed the ruling of the Supreme

Judicial Court in the Hanover Case,‘ which held that the

word ‘‘reasonable’’ in the Statute is surplus verbiage, and

is subsumed in the phrase ‘‘consistent with local needs’’.

Under the statutory definition in section 20, the denial

by the Board is ‘‘consistent with local needs’’ if Scituate

has met one of three mathematical criteria relating to the

existing number of subsidized units, the geographical area

occupied by subsidized units, or the percentage of total

units constructed in the calendar year which were sub-

sidized.

It was conceded that Scituate has not met any of these

three mathematical statutory criteria.°

‘Board of Appeals of Hanover v. Housing Appeals Committee

Board of Appeals of Concord v. Housing Appeals Committee 1973

Mass. Adv. Sh. p. 491; 294 NE 2nd 393 hereinafter referred to

variously as the ‘‘ Hanover Case”’ or ‘‘the 8.J.C. decision”’.

°Tr. 1:21. See also Appellant Exhibit No. 11, p. 46 Appellee’s

brief, page 2.

—

~~ en or cee ene. + a ee

A second test for consistency with local needs, as set out

in the statute in section 20, and as further defined in the

Hanover decision, requires that considerations of health and

safety, and the requirements of site and building design,

and open space, be weighed against regional need for this

housing, together with the number of low income persons in

Scituate.

The Appellee and Intervenor contended that regional

need had not been proved, and produced evidence and argu-

ment that hazards to health and safety, and objections to

site and building design, existed, or would be created by

this construction, of such gravity as to outweigh regional

need. The facts are set out in the separate discussion of

each of these subjects below.

Before discussing the several items included in the gen-

eral issue of consistency with local needs, we deal with two

jurisdictional issues raised by the Intervenor: (1) whether

Chapter 774 violates the equal protection and due process

provisions of the U.S. Constitution; (2) whether the Apel-

lant has sufficient title to permit it to build this housing.

A. Constitutionality

The rulings of the S.J.C. in the Hanover Case, which em-

powered Boards of Appeal, and the Housing Appeals Com-

mittee, to override local zoning by-laws, and even votes of

the Town Meeting, were, the Intervenor argued, repugnant

to the federal constitution, citing Belle Terre vy. Borass,

94 S. Ct. 1436 ( ), the Valtierra case, and a comment

in a 1979 law review article.®

®*The Belle Terre decision upheld as a valid exercise of police

powers a local ordinance limiting occupancy to families, or groups

of not more than two unrelated parties.

In James v. Valtierra, 91 S. Ct. 1331 (1970) the court upheld a

state constitutional provision that required a local referendum

decision on subsidized housing.

The need to prove the non-applicability of these author-

ities is eliminated by the recent decision iz Mahoney v.

Board o: Appeals of Winchester’ where the Massachusetts

S.J.C. affirmed the Hanover rulings, and specifically re-

jected the argument that Chapter 774 denied equal protec-

tion of the laws, and due process under the fourteenth

amendment to the U.S. Constitution and the Massachu-

setts Declaration of Rights. In the subsequent appeal to

the U.S. Supreme Court the briefs of both parties dealt

fully with the issues of ‘‘equal protection’’ and ‘‘due proc-

ess’’. A motion was filed to dismiss the appeal. The court,

in a one line decision allowed the motion, ruling that no

substantial federal question was involved.®

B. Appellant’s Title

The Intervenor introduced evidence through Paul Quinn

that the land in question was purchased and paid for by

St. Mary’s parish for use as a [cemetery] and title taken

in the name of the Roman [Archdiocese] of Boston because

St. Mary’s was unable to take title.®

See ‘‘1970 Annual Survey of Massachusetts Law’’ p. 491 quoted

in part on page 3 of the Intervenor’s brief as follows:

‘*There are a number of problems with Chapter 774 which will

have to be solved by legislative amendment or by administra-

tive or court action:

(a) The act nowhere explicitly gives a town board of ap-

peals the power to override zoning by-laws.’’

This ‘‘problem’’ was ‘‘solved’’ in the first instance by admin-

istrative action: its Hanover decision ruling that Chapter 774 did

in fact give local boards power to override zoning by-laws, and in

the second instance by court action: the decision of the S.J.C. in

its Hanover decision upholding H.A.C.’s ruliugs.

7316 N.E. 2nd 606, 609.

8‘*The Appeal is dismissed for want of a substantial federal

question.”” Mahoney v. Board of Appeal of Winchester. U.S.

Supreme Ct. 374-693 Jan. 27, 1975.

*Tr. 4: 36BA-39BA.

The Intervenor argues that on these facts a trust is

created under the law for the beneficial use of St. Mary’s

parish, the Archdiocese holding bare legal title.’®

The Intervenor argues in his brief that in arriving at its

decision HAC should ‘‘take into consideration . . . the in-

sensitive insistence of the Appellant to try to take away

from the local parish land it bought for purposes now

needed .. .”’

The Committee has held in previous decisions that an

applicant for a comprehensive permit need show only a

‘‘color or title’’ to have standing to maintain his applica-

tion, basing that decision on the case of Dion v. Waltham."

The S.J.C. in the Hanover decision ruled that with re-

spect to the more definitive question of title, HAC may

defer that decision to the subsidy funding agency, which, in

making the mortgage loan, is the agency particularly con-

cerned with the applicant’s title.

The Intervenor himself in his brief states that . . . ‘‘this

committee admittedly does not have authority to try title

mm..."

While we do not concede that we have no power to in-

quire into questions of title, and to make findings and rul-

ings thereon, should such an issue become particularly

germane in a particular set of circumstances, H.A.C. has

in a previous decision, where the issue of title was far more

germane, but not essential to its decision, deferred the

title contest to a separate action in the Land Court or

Equity Court.

10 Citing Scott on Trusts (3rd edition) Sec. 404. William v.

Commercial Trust Co., 276 Mass. 508, 517. Kennedy v. Innes, 339

Mass. 195, 200

11 344 Mass. 511, 1962; See H.A.C. Decision Country Village v.

Hanover Board of Appeals.

12 Intervenor’s brief, page 5

13 Riverside Realty Trust v. Board of Appeals of Chelmsford,

H.A.C. decision.

The original application of the Appellant to the Board

is attached as Exhibit A to its Appeal to H.A.C. This

application states at the end of the first paragraph that the

Appellant ‘‘is an agency of the Archdiocese of Boston and

is acting at the request of the owner, the Roman Catholic

Archbishop of Boston, who will convey the property to the

Applicant prior to the ciosing of the mortgage loan’’.

C. Consistency With Local Needs — Regional Need

In the process of balancing regional need against health,

safety, design and other valid planning objectives, in order

to determine if the Board’s denial was ‘‘consistent with

local needs’’, we examine first the issue of regional need,

since this was a subject of sharp disagreement between the

parties.

The language of the statute requires us, in assessing

regional need, to do so ‘‘together with the number of low

income persons’’ in Scituate.

Evidence on the subject was presented on behalf of the

Appellant by Anton Finelli, a staff member of the Planning

Office for Urban Affairs, Stephen Dubuque, a staff member

of the South Shore Community Action Council, and Ms.

Marjorie Gardinier, an administrator of the surplus food

distribution program in Scituate, based on data from the

1970 U.S. Census, Department of Community Affairs and

H.U.D. guidelines for public housing eligibility, and

M.A.P.C. and M.H.F.A. reports and data.

The evidence relating to regional need is summarized in

footnote’ below, and evidence relating to the number of

1* Comparison of 1970 U.S. census for figures with D.C.A. and

H.U.D. guidelines shows 251,052 households in the Boston S.M.S.A.

statistical area (which includes Scituate) eligible for low-income

housing, and 166,728 more eligible for moderate income housing

Tr. 2:54. The Boston S.M.S.A. is a part of the 101 municipality

Metropolitan Area Planning Council Region, which contains Scitu-

—

low income persons in footnote’. Neither the Appellee nor

the Intervenor introduced rebutting evidence on the issue

of regional need or the number of low income persons in

Scituate, relying instead on cross examination of Appel-

lant’s witnesses and arguments in the Appellee’s brief to

weaken and discredit the Appellant’s presentation.

Admittedly, what constitutes the ‘‘region’’ is not as

sharply defined in the statute as are the parameters of the

mathematical criteria. Even harder to define, from the

point of view of counsel who must prove it, is the concept

of need. Statistics covering the twelve-town area of the

South Shore Community Action Council, which includes

Scituate, have probative value, as do those covering the

region of the Metropolitan Area Planning Council which

also includes Scituate. The M.A.P.C. Region, is generally

understood to be the ‘‘region’’ intended by the statute, for

those municipalities within it. For that reason, Mr.

Dubuque, at the Committee’s request, refined his statistics

to cover only that eight-town portion of the South Shore

Community Action Wouncil area which lies within the region

of M.A.P.C. (See Appellant Exhibit No. 7A). Appellant’s

Exhibits 5 and 6 also relate to the M.A.P:C. region. As the

ate. The eight town region of Hull, Cohasset, Scituate, Norwell,

Hanover, Marshfield, Pembroke and Duxbury contain 1,966 fam-

ilies on publie assistance, who would be eligible for public hous-

ing, 2,000 families with incomes between $3,721 and $4,651 who

would also be eligible for public housing and 2,253 families

with annual incomes between $2,100 and $9,000 who are paying

more than 25% of their incomes for rent. There are only 96 units

of low income family housing in the eight town area. (Appellant’s

exhibit #+7A).

15 At the time of the hearing 212 Scituate families had estab-

lished eligibility for, and were receiving surplus food, Tr. 2:36.

Of these families, one third were elderly, and two thirds were low

income families with children (Tr. 2:37). There are 637 Scituate

families eligible for low income housing in Scituate (Tr. 2:44-5).

For further detailed data see Worcester Census Service Table 128

(Appellant Exhibit #6).

Appellant correctly pointed out in his brief on page 5,

H.A.C. has already found regional need in six previous

decisions involving municipalities in the M.A.P.C. region,

and there is no evidence in this case to indicate that that

need has been met.

We find that there is a regional need for low income hous-

ing together with a substantial number of low income

persons in Scituate.

D. Consistency With Local Needs:

Health and Safety Hazards

The Appellee contended that even if H.A.C. should make

a finding of regional housing need, the extent of the hous-

ing need is far outweighed by health, safety and planning

considerations advanced by the Local Board as grounds for

denying the comprehensive permit under the general head-

ing of health and safety. The Appellee pointed, in particu-

lar, to sewage, drainage, and traffic hazards.

1. Sewage

The Board decision found that ‘‘the proposal for sew-

age disposal was a major obstacle.”’

The Appellant’s consulting engineer, Joseph Schneider,

described the proposed sewage system. A duplex station

would be installed on the site to pump the sewage to a point

on Meeting House Lane where it may flow by gravity

through a new gravity line to be constructed by the Appel-

lant into the existing sewer main in Kent Street, (Tr.

4:23-4).

The duplex system would include a stand by electric

generator to service the pumps in the unlikely event of a

town power failure. The gravity line to be constructed by

the Appellant is part of the town’s programmed sewer sys-

tem, and is to be constructed at no cost to the town.

The explanation of the proposed sewage arrangements

is simple and lucid. We fail to see where there is any

—

Van

‘‘major obstacle’’. The Appellee argues that the Appel-

lant should provide detailed sewage plans. We have re-

peatedly ruled that such detailing is an unfair burden to

place on the developer at the application stage. The re-

quired detailing will come later, if a comprehensive permit

is granted, to satisfy the requirements of the funding

agency and the state sanitary code.

We do not read a ‘‘potentially dangerous health haz-

ard’’ into Mr. Schneider’s perfectly frank and inevitable

reply, on cross examination, when asked what would hap-

pen if the pumps failed to function, ‘‘the forty dwelling

units would be divorced from the sewer system’’, (Tr.

4:24). The same would be true if any system of sewage

pumps, anywhere, failed to function.

The Board’s decision states, with relation to the pro-

posed sewer line to be constructed by the Appellant, ‘‘ This

may not be feasible or permissible, and the alternative

would be an on-site disposal field which we do not feel could

handle a proposal of this magnitude.”’

The suggestion about an on-site disposal field is purely

speculative. The practice of having developers construct

feeder lines between their development and the nearest

main is common, and increasing. The town would be hard

put to explain a refusal to give the necessary permits, once

plans satisfactory to state sanitary officials had been

approved.

We have previously ruled that a comprehensive permit

could be so conditioned, and that a refusal by the town to

allow an applicant access to an existing way could be found

to be an unreasonably restrictive requirement which the

Committee (and the Local Board) could set aside.”

The proposed system was examined by the town sewer

supervisor and by a staff member of the firm of Metcalf

18 Wooderest Village v. Board of Appeals of Maynard. H.A.C.

decision at pp. 15, 19.

and Eddy, the town’s sewage consultant, and found to be

acceptable and in accord with good engineering practice.

We find that the proposed sewage disposal system pre-

sents no health hazard.

2. Drainage

Testimony as to proposed arrangements for drainage

was provided by Peter Ogren, Civil Engineer, of the firm

of Hayes Engineering Co., the Appellant’s drainage con-

sultant. He visited the site, made soil tests, and designed

the system.

He testified that the percolation rate of the soil would

be adequate for a sewage disposal field (which is not con-

templated here), a much more intensive use than drainage,

(4-14). There was no ground water in the Spring down to

a depth of four feet. Surface drainage will be designed to

balance increased run off from roofs and paved areas by

increasing site storage capacity.

The site slopes gently southward. Present plans call for

site grading to flow the water, in heavy rains, to a leaching

trench, which will function as a holding pond, permitting

rain to leach into the soil, (Tr. 4:15). Water which now

flows off the site will continue to do so, generally in a

southeasterly direction.

Here again, the Appellee rebutted only through cross

examination and argument. As in the case of detailed

sewer plans, we have repeatedly ruled (beginning with our

first decision in the Hanover case, affirmed by the S.J.C.)

that detailed drainage plans cannot be required of an ap-

plicant for comprehensive permit at the application stage.

They can be required at the construction stage.

We rule that the proposed site drainage system presents

no health hazard.

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3. Traffic

A specific safety ground on which the Board’s denial was

based related to traffic hazards. The Board noted that:

The proposal calls for an entrance-exit at the inter-

section of Common Street and Stockbridge Road which

the Board feels is an already dangerous intersection.

We feel that the safety of the public and the owners of

the proposed housing would be seriously endangered

by the increased traffic flow in and out of the area.

(Board Decision p. 2).

Testimony on this issue was submitted on behalf of the

Appellant by Stanley Siegel, a traffic engineer, and on be-

half of the Appellee by Dorothy Page, a long-time area

resident.

Mr. Siegel made three traffic volume studies and several

site visits. In particular he examined the access point to

the Stockbridge Road parking lot and the nearby Stock-

bridge Road-Common Street intersection, referred to in

the Board decision. He concluded that adequate line of

sight existed in both directions and that no traffic hazard

was presented, (Tr. 4:59).

In this connection, it should be observed that of the ac-

cesses to the three parking spaces, two enter from Meeting

House Lane, a low volume street. Only one enters from the

higher volume Stockbridge Road, and that one services

only seventeen of the proposed sixty parking spaces.

Ms. Page’s testimony was based on personal observation

over a long period of residence. She testified that sometimes

she has waited five minutes to cross the street, and has fre-

quently heard the screech of brakes (Tr. 4:30). She testi-

fied that the traffic is particularly heavy on Saturdays and

Sundays when local residents visit the dump further up

Stockbridge Road.

Mr. Siegel, on cross examination, testified that he had

not taken any traffic count on a week-end, (Tr. 4:120).

Ms. Page, on cross examination, testified that the sched-

uled closing of the dump would ‘‘help a lot”, (Tr. 4:31).

Admittedly, more housing units mean more traffic. We

cannot find, however, on the evidence, that the existing

volume of traffic, plus the projected increase in volume

from this project, together with the decrease from the pro-

jected closing of the dump add up to a serious safety

hazard.

We rule generally that no health or safety hazards exist,

or will be created by the proposed construction, of gravity

sufficient to outweigh the regional housing need.

E. Consistency With Local Needs:

Site and Building Design

It was in the area of site and building design that the

Appellee mounted the strongest attack against this pro-

posal.

Valid planning objections existed in this area, it was

contended, of such magnitude and gravity as to outweigh

the regional need for this housing as set out in the statutory

test.

Under the general heading of building design, the Ap-

pellee attacked the exterior design of the buildings as too

drab, and the interior design as inadequate under govern-

mental standards to meet the needs of low income families.

Site design came under the even stronger attack. It was

contended that building placement on the site was badly

designed; that the site was poorly chosen; that other ade-

quate sites were available; that there might be legal pro-

hibitions to its proximity to the subsidized elderly develop-

ment at Wheeler Park; that in any event it was poor plan-

ning practice to concentrate subsidized housing in this part

of Scituate; that the project was a disruption of Scituate’s

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orderly plan for the development of subsidized housing;

that the project constituted a radical change in the char-

acter of the neighborhood; and in particular, threatened

the historical character of the locality, which was of spe-

cial uniqueness and worthy of being preserved.

1. Building Design

The town house type of desigu was chosen for aesthetic

and practical reasons. The neighborhood is predominantly

single family, though differing substantially in age and

design. While a project of single family houses might

blend less obtrusively, the economic facts of life preclude

this for a practical low-rent subsidized housing. The town

house, with wood exteriors, garrison-type overhang, low

and sloping roof lines, vertically proportioned windows,

reminiscent of garrison-colonial architecture, with indi-

vidual entrances and yards, and lack of common corridors,

is the best transition between single family detached houses

and garden apartments. This was the opinion of Jonn

Chesley, an architect and Chairman of Scituate’s Planning

Board,” Charles E. Downe, the Town’s Planning Consult-

ant,’* and John Brown, the Appellant’s planning consult-

ant.’®

We do not share the opinion of Charles Chaloff, an archi-

tect testifying for the Appellee, that the buildings were

‘‘plain and drab” and not in keeping with the neighbor-

hood, (Tr. 4:4). The testimony of John Clancy, who de-

signed this development, reflected a keen awareness of the

practical and aesthetic problems in blending this forty unit

development into the neighborhood, and his concern for

17Tr, 4:48;

18 Multi Family Housing Study, Scituate, MA. March 1972 by

Charles E. Downe. Hereinafter referred to as the [Downe] Report.

Tr. 3:49.

such details as interesting shadow lines exemplified his

sensitive solution to these problems.

While Mr. Chaloff found bedroom sizes to be generous,

and living and dining areas to compare favorably with

F.H.A. standards, he did testify that room sizes in a

number of units do not meet F.H.A. minimum standards.

He did not evaluate the proposal against M.H.F.A. stand-

ards, although he conceded that M.H.F.A. would be the

funding agency, (Tr. 4:3-5).

We rule that the proposed development meets the re-

quirements of the statute relating to the need to promote

better design in relation to the surroundings.” This ruling

is not intended to prevent the funding agency from regnir-

ing such changes in the building design as are necessary

to meet their design criteria.

2. Site Design

(1) Physical Design of Site

The town houses are arranged in four buildings on the

five acre site, around an open play and recreation area of

two acres. Approximately four-fifths of the area is open,

uncovered by buildings or paved areas. Density is 8.1 units

per acre, which compares favorably with the eight units

per forty thousand feet recommended in the town’s Downes

Report."

The town houses are arranged so that their formal en-

trances front on Stockbridge Road or Meeting House Lane,

conforming to the orientation of surrounding houses. The

houses are set back fifty feet, this area landscaped with

perimeter foliage which blends with existing growth.

The action sides of the house face toward the landscaped

open center of the site, which is developed as a children’s

2° G.L., c. 40B, s. 20.

*2 Multi Family Housing Study Appellant Exhibit No. 11 at

p. 5.

a wetness ee tat

play area, and other recreational uses, not impinging on

neighboring streets.

(2) Location of the Site

This innocuous subheading includes and in part conceals

the interplay of the historical opposition to the entire

Chapter 774 program, and the extent to which it contributes

to the arguments raised against this proposal, some legiti-

mate under the statute, and some [illegitimate].

The arguments cluster under the statutory reference to

‘the need’’ to promote better site and building design in

relation to the surroundings .. .”

The illegitimate arguments, though politely stated, mask

overtones of social bias which are totally repugnant to the

legislative purpose of the statute. It is such arguments

which have given the Chapter 774 program its rather pe-

jorative popular title of ‘‘anti-snob zoning law’’. We

dealt with this subject in our Maynard decision, where the

arguments were rather baldly advanced. Of the mild hint

in this case that this cooperative development may invite

social ostracism we say simply that it is not relevant under

the statute.”

a. Architecture of Surrounding Neighborhood

The relationship of this development, from a design point

of view, to the surrounding neighborhood, is a legitimate

concern of the statute. While, as indicated, it is a subject

which H.A.C. may defer to the judgment of the highly able

design team of M.H.F.A.,* we comment about it here be-

cause it was so strongly advanced during the hearing and

in the arguments.

22G.L., c. 40B, s. 20.

28 See Board Decision, p. 2.

24H A.C. Decision: Woodcrest Village v. Board of Appeals of

Maynard.

The presented evidence, plus the site view taken by mem-

bers of the Committee discloses an old, pleasant, settled

suburban neighborhood, with mostly single family homes.

Although [predominantly] of colonial style, they vary in

age and architectural style ranging from the historic Mann

House to 1 story builder houses of the 50’s, to a 1972 ‘‘log-

eabin’’ reproduction, to the recently sold ‘‘raised ranch’’

previously owned by the Intervenor built in 1970."

Mr. Brown, testifying for the Appellant, stated that there

was no predominant style, except that they are primarily

single family.”

Mr. Chaloff, the Appellee’s architectural witness, after

viewing a number of photographs described the architec-

tural character of the neighborhood as ‘‘mixed’’.””

In addition to the single family houses, the area contains

three cemeteries, a one story modern school, a recently

built elderly housing project and a boarding house.

We have already referred to the Town’s Downe’s Report

on Multi-Family Housing which characterizes the town

house as the ideal architectural transition from single fam-

ily to multi-unit housing.

We find nothing in the proposed design which architec-

turally outrages the neighborhood. The proposal must still

pass the final criteria of the members of M.H.F.A.’s design

team. Our finding by no means is intended to bind them in

the free exercise of their critical judgment.

b. Proximity to Wheeler House

Wheeler Park is a state aided elderly housing develop-

ment of forty units, built in 1967. An additional 78 units

have been approved.

25 See Appellee’s Exhibit No. 13 L.

26 Tr. 3:74, 48.

27 Tr. 4:10. See Appellant Exhibit No. 15.

BN Mee

et Ae A wl hy rene sas &

The objection that the proposed development is ‘‘too

close’’ to Wheeler Park is based on several grounds. Some

are expressed in the Board’s decision (on page 2): that

this proposal would have an adverse effect on the existing

and proposed elderly housing, have a detrimental effect

on the neighborhood, amount to a social and economic

segregation of the families who are to reside there, and

nullify and substantially derogate from the intent and pur-

poses of Scituate’s zoning by-law.

The brief of the Intervenor, on pages 8 and 9 paints a

moving picture of the elderly of Wheeler Park basking in

pastoral serenity, whose peace will be rudely ‘‘shattered’’

and who are ‘‘physically intimidated’’ by the ‘‘bustling’’

activity of the proposed project. ‘‘Surely no rule of law

or reason exists to permit a private developer (a church

sponsored organization proposing co-operative housing for

low-income families) to cause such havoc ...’’ ... the

value of millions of tax dollars spent on Wheeler Park

will be lost or seriously impaired.

A more cogent argument is presented in the Appellee’s

brief (pp. 16, 17, 18) which quotes statutory language to

the effect that prior to granting approval for construction

of a new low-income housing project the Housing Board

(now the Department of Community Affairs) must find

that ‘‘the proposed project is not located adjacent to nor

within one eighth mile of an existing project.’’** The pro-

posed project is in fact within one eighth mile of Wheeler

Park. (Tr. 5:49).

28 Originally passed as St. 1966, c. 705, added to the General

Laws as G.L., c. 121, see. 26AA(b) (ii), and so cited in the Appel-

lee’s brief. In the ‘‘recodification’’ of existing housing statutes

in 1969 (St. 1968, ec. 751), chapter 121 was repealed, but most of

its provisions were carried over into the new G.L., ec. 121B. The

one-eighth mile provision now appears in G.L., c. 121B in sevtion

31(b) (ii).

The one eighth mile provision relates to so-called ‘‘705”’

housing which is state-aided low-income subsidized family

housing. It refers to two low income family housing pro-

jects built by a housing authority, and specifically excludes

elderly housing. There is no stricture against building a

second elderly housing project even adjacent to a first,”

or against building a family project within one eighth mile

of an elderly project. In any event the statute does not

apply to this privately financed low and moderate income

housing.

The Appellee’s brief recognizes this distinction at page

18...‘**Chapter 705 is not directly relevant to this appeal.’’

The Appellee argues, however, that it does reflect a legis-

lative policy which should impel the Committee not to

permit this family project within one eighth of a mile of

an elderly project.

We recognize no such legislative policy. We recognize a

legislative policy to keep two 705 subsidized family project

as least an eighth of a mile apart. But the legislature has

not extended that policy to the situation where one of the

projects is an elderly project, and we see no reason why

H.A.C. should so extend it.

We do recognize, however, another legislative policy,

clearly expressed in the passagé of chapter 774 which

negates the reasons adduced in the Board’s decision (p.

2) and in the Intervenor’s brief.

We do not find that the forty units of proposed housing

will have a detrimental effect on the neighborhood; we do

not find that the admittedly attractive Wheeler Park will

be damaged aesthetically or financially by the equally at-

tractive proposed development; to the extent that the

intent and purposes of Scituate’s zoning by-laws forbid

this development, we find them restrictive under the Stat-

ute; and we have already commented about the ‘‘ecomonic

2° Indeed the proposed addition to Wheeler Park is an example.

ae ogre ent 8

Tests 2 ae Ss em Fn

and social segregation’’ that will be visited on the new

residents.

ce. Historic Area

Almost a full session was devoted to hearing the testi-

mony of Ms. Catherine Laidlaw, the devoted President of

the Scituate Historical Society. She described important

historic features of the neighborhood; Mann House which

will be a beautifully restored representation of Early Amer-

ican architecture, and an important educational center and

museum (Tr. 4:76-81); the Men of Kent Cemetery with

over one hundred graves dating back to the 1600’s; the

colonial muster ground, now a common.

She was concerned that the proposed development would

impair the historical significance of the area; ‘*‘. . . the

‘*size and proportions of the buildings’’ and ‘‘the fact that

there are so many of them so close together’’ ‘‘would

(take) away from the atmosphere of this area’’, (Tr.

5: 38).’’ :

Another concern of Ms. Laidlaw was that the addition

of forty units of housing would aggravate existing secur-

ity problems in protecting historic sites. She described

damage to fragile grave-stones that had already taken

place, and the alarm system and caretaker already provided

to protect Mann House, (Tr. 5:13).

Although steps had been instituted in 1973, neither the

Mann House nor the Men of Kent Cemetery are in the

National Register, (Tr. 5:41).

Miss Polly Ann Matherly Rettig, Historian of the Massa-

chusetts Historical Commission stated that the Thomas

Mann House is an ‘‘obvious (choice) for the nomination

to the National Register of Historic Places’’. (Appellee’s

Exhibit No. 9). She testified, however, that to date ‘‘noth-

ing has been done in terms of official protection of the

area’’.

In a letter to Ms, Laidlaw written in March 8, 1973, Ms.

Rettig (nee Matherly) stated, of potential future develop-

ment of this site, ‘‘. . . construction of a building here in

an architectural style or scale which is not compatible with

the surrounding buildings and their setting could have a

serious effect on the visual quality of the entire area’’.*°

The letter does not indicate that Ms. Rettig was referring

to the site or building design of this development. With re-

spect to this particular development, she testified that if

the proposed housing were in being, a subsequent applica-

tion to designate the area would not be rejected because of

its existence, (Tr. 5: 59-60).

Particularly significant is a letter Ms. Rettig wrote to

Rev. M.F. Groden on March 14, 1973, less than a week after

her letter to Ms. Laidlaw.

‘*Certainly, historic district controls should not be

used to ‘freeze’ particular areas or to create museum

villages. New buildings may be necessary to meet

the needs of developing communities and those which

are well-designed and constructed of appropriate ma-

terials can be definite assets to historic districts. Cities

and towns should, in fact, employ historie district-

ing not only as a means of protecting significant areas

but as a planning tool through which they can encour-

age high quality in designs for new buildings and

achieve a compatible mix of traditional and modern

architectural styles.”

We have already indicated that we do not find the build-

ings or the site design architecturally repugnant to the

neighborhood. While the addition of new residents means

increased security problems, as it also means increased

8° Appellee Exhibit No. 9.

81 Appellant Exhibit No. 14.

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traffic, the remedy is not to deny the housing but to increase

counter-measures to deal with these security problems.

Insofar as historical concerns come under the general

heading of site and building design under the statute, we

find the existence of no historical concerns which out-

weigh regional need for the proposed housing.

d. Other Planning Issues

The Board decision stated, on page one thereof that ‘‘.. .

this petition is unique in that Scituate is the first munici-

pality within the Commonwealth with an implemented pro-

gram of subsidized housing to have an appeal under the

procedures of Chapter 774. Therein lies the Board’s main

objection to this proposal. Scituate ... with 80 units...

82 scheduled ... and 15 single units under the D.C.A. rental

plan ranks second in comparison to the 101 cities and towns

comprising the M.A.P.C. The Board feels that the town

has embarked on an orderly plan toward compliance .. .

of chapter 774 well within the spirit of the law.’’

The contention that Scituate is the first municipality

with a subsidized housing program to receive an applica-

tion for a comprehensive permit, or that it ranks second in

any comparison with other communities in the M.A.P.C.

district is not borne out by the evidence, even if these con-

tentions were relevant under the statute, which they are

not.*?

Equally irrelevant under the statute are arguments ad-

vanced in this case, already ruled on in previous decisions:

that other communities in the region have not met their

minimum obligations under the statute;** that there are

available other sites more acceptable for the proposed

$2 Tr.: 2 46-47

88 H.A.C. Decision: Whitman House v. Weymouth Board of

Appeals.

use in the opinion of the town;* that the proposed housing

impacts on the tax base or on the school system.”

The suggestion in the Board decision (pp. 1-2) that ‘* The

D.C.A. in setting forth its criteria for deciding appeals has

suggested that the development of this type housing be

done through a local housing authority ...’’ is erroneous.

Housing authorities have legal power to construct only

low income housing, not low and moderate income housing.

No argument was raised that the proposal violates the

‘‘open space’’ requirements of the statute, (Tr. 5:65).

e. Local Effort

A strong argument was advanced in the Appellee’s brief

that the Housing Appeals Committee, in weighing need

against ‘‘legitimate local concerns’’ must consider the ex-

tent of the local effort to meet its minimum housing re-

quirement as set forth in section 20.**

The Committee is in strong sympathy with the concept

of recognizing local effort, in carrying out its mandate

under Chapter 774.

The argument, however, clouds the statutory definition

of consistent with local needs.

The mathematical criteria of the statute are very exact.

Either the minimum parameters have been met or they

haven’t, and differing consequences flow therefrom. In

this area, the local effort to meet the statutory minima can

be recognized and rewarded only after the statutory minima

have been met.

In the area of balancing need against health, safety and

design factors, there is more room to recognize local effort.

$4 See footnote 33.

85 H.A.C. Decisions: Woodcrest Village v. Maynard Board of

Appeals, Wilson Street Trust v. Norwood Board of Appeals.

86 Appellee’s Brief, p. 23 ff.

Thus, for instance, we would give more weight to an alleged

traffic hazard where the evidence showed that the town had

taken all reasonable measures to reduce the hazard, and

yet a great measure of danger continued to exist. Other

examples could be multiplied.

The local effort alleged here is that the town is moving

to meet its mathematical minimum housing requirement.

As indicated, the statute provides no formula for according

differential treatment in such instances.

f. Use of BOCA Code

The Appellant sought to build under the BOCA code in

lieu of the Scituate Building By-law, alleging a number

of reqirements in the local code which unreasonably in-

creased the building costs of this development. This request

was denied in the Board’s decision (pp. 2-3) and was the

subject of considerable argument in the briefs of the

parties.”

The enactment of St. 1972, c. 802, effective January 1,

1973, which brought all construction throughout the state

under the State Uniform Buiding Code, which is modelled

on the BOCA code has in effect, rendered that issue moot.

F. Environmental Requirements

Massachusetts Environmental Policy Act (M.E.P.A.)

requires in G.L., ec. 20, s. 61 that H.A.C., as a state agency,

make certain environmental findings before granting a com-

prehensive permit. Section 62 requires that an environ-

mental assessment form (E.A.F.) be prepared, and if it

discloses significant potential environmental impact, an en-

87 Appellant Brief at p. 15; Appellee Brief at pp. 12-15. See

also H.A.C. decisions: Lexington Interfaith v. Board of Appeals

of Lexington, Aug. 27, 1973. Community Development v. Board

of Appeals of Billerica, Aug. 5, 1974.

vironmental impact report (E.I.R.) be prepared and

published.

Under regulations promulgated by the Secretary of Com-

munities and Development, approved by the Secretary of

Environmental Affairs, H.A.C. is categorically exempt from

complying with section 62, where the project is to be sub-

sidized by M.H.F.A. H.A.C. may, in making its findings

under section 61, rely on an E.A.F., and, if required, an

E.I.R. prepared by M.H.F.A. and approved by the Secre-

tary of Environmental Affairs.

These regulations, approved by the Secretary of Environ-

mental Affairs implement legislative intent that its En-

vironmental Policy be carried out. Such policy, however,

does not require successive and expensive duplication of

effort where two or more state agencies must make findings

under Section 61 on the same project.

On November 6, 1973, M.H.F.A. prepared a negative

E.A.F. which received the concurrence of the Secretary of

Environmental Affairs on January 23, 1974.

Ill. FINDINGS, RULINGS, AND ORDER

In view of our subsidiary findings and rulings, and upon

a review of the whole record, under the provisions of the

G.L. ce. 40B, s. 23, the Committe rules that the decision of

the Zoning Board of Appeals of Scituate was unreasonable

and not consistent with local needs.

The Housing Appeals Committee finds that the proposed

project will not cause any environmental impact, and finds

further that all feasible measures have been taken to avoid

or minimize said impact, and that no environmental impact

report is necessary, all in accordance with G.L. ¢. 30, ss.

61-62, the rules and regulations of the Secretary of En-

vironmental Affairs, and the Statement of the Secretary

on Environmental Assessment form dated January 23, 1974.

The decision of the Board is hereby vacated and the

Board is directed to issue a comprehensive permit to the

Appellant.

Said comprehensive permit shall provide for a housing

development on the locus which is the subject of this appeal

in the approximate number of units and design as pre-

sented before the Housing Appeals Committee.

Said comprehensive permit shall include all permissions

necessary to complete the construction of said housing de-

velopment which would otherwise be required from local

boards, departments, or agencies of the Town of Scituate,

including, but not limited to, permission to open Meeting

House Lane for the purpose of laying a sanitary sewer

therein. Said comprehensive permit shall be subject to the

following conditions:

1. Construction shall comply with the provisions of the

State Uniform Building Code as provided by St. 1972, ec.

802 effective January 1, 1973.

2. No construction shall commence until detailed construc-

tion plans and specifications, substantially in accordance

with the preliminary plans submitted to the Housing Ap-

peals Committee, shall have been approved by the Massa-

setts Housing Finance Agency and until said Agency has

granted a construction mortgage loan for the construction

of the project.

3. Compliance inspections shall be carried out by local offi-

cials in the usual manner. In the event that disagreement

between the builder and local officials arises, certification

by the Department of Community Affairs, if requested,

shall be adequate proof of compliance with any requirement

under the comprehensive permit, or any of the other terms

of this order.

4. If anything in this decision would seem to permit the

building or operation of the project in accordance with

standards less safe than the applicable building and site

plan requirements of the agencies financially assisting the

project, the standards of such agencies shall control.

5. That in the event that the Massachusetts Housing Fi-

nance Agency shall require that a new corporation be

created to serve as mortgagor, this comprehensive permit

shall be transferred, without further charge and upon

presentation of written notice to this effect by the Appel-

lant to the Board of Appeals, to such a new non-profit

corporation, provided that a majority of the officers and

directors or trustees of said corporation are officers and/or

directors of the Planning Office for Urban Affairs, inc.

Date: March 14, 1975

HOUSING APPEALS COMMITEE

/s/ Maurice Corman

Maurice Corman, Chairman

/s/ William C. Ames

William C. Ames

/s/ C. Wesley Dingman

C. Wesley Dingman

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.