# Petition — Board of Appeals v. Housing Appeals Committee

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1087

## Text

Supreme Court of the United States.

Ocrosze Term, 1977.

No.

BOARD OF APPEALS OF SCITUATE,
PETITIONER,
v.

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

10
11

7

6,7, 8

7

6, 7

6

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

2

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.

3
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.

4

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

5

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.

6

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

7

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.

8

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-

9

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

10

‘‘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

11
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
v.

HOUSING APPEALS COMMITTEE

(Appeals Court No. 76-590; Plymouth Superior

No. 75-1348)

12
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

13
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.

14
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

15

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: —

16

(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.

17

°

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.

18

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).

19

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

20

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

21

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

22

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,

23

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.

24
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
Register (Tr. 5:41), the Mann House according to Miss

25

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

26

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

27

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

28

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

29
Decision of the Housing Appeals Committee.

COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF COMMUNITY AFFAIRS
HOUSING APPEALS COMMITTEE

PLANNING OFFICE FOR URBAN AFFAIRS, INC,
v.

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.

30

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

31

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.

32

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.

33

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.

34

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-

.

—

35

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).

36

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

37

‘‘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.

38

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.

eee

39

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.

40

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

ee ee

ae.

41

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.

42

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

43

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.

44

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 &

45

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).

46

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

47

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’’.

48

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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49

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.

50

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.

51

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.

52

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.

53

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.

54

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0278%3A1. Public record. Not legal advice.