Agenda - Planning Commission - 01/06/2011

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Zoning Bulletin October 10, 2010 !Volume 4 1 No. 19 the same power to issue permits or approvals as any local board or official who would otherwise act with respect to such application, including but not limited to the power to attach to said permit or approval conditions and require- ments with respect to height, site plan, size or shape, or building materials .... The conditions that Attitash challenged included requirements that went to matters such as, among others: project funding; regula- tory documents; financial documents; and the time of sale of affordable units in relation to market rate units. Attitash argued that these condi- tions were beyond the powers of local boards or officials and thus be- yond the power of the ZBA to impose. The HAC agreed with Attitash. In October 2007, HAC issued a de- cision, removing or modifying most of the conditions to which Atti- tash.objected. The ZBA had argued that it had the authority to "impose 'appropri- ate conditions' dealing with [all issues related to] low or moderate in- come housing development." Moreover, it had further argued that the HAC could not review the conditions that Attitash had challenged as beyond the ZBA's authority: It said this was because the HAC, under c. 40B, § 23, only had authority to review conditions that Attitash could show were "uneconomic." The ZBA pointed to c. 40B, § 23, which limited HAC review of approved projects with conditions imposed to: "the issue of whether ... such conditions ... make the construction or . operation of such housing uneconomic ...." The HAC rejected the ZBA's arguments. The ZBA appealed the HAC's decision to superior court. The court affirmed the HAC's decision, and the ZBA again appealed. The Supreme Judicial Court of Massachusetts transferred the appeal to itself. DECISION: Affirmed. The Supreme Judicial Court of Massachusetts held that: (1) Under § 21, "the local zoning board's power to impose conditions is not all encompassing, but is limited to the types of conditions that the various local boards in whose stead the local zoning board acts might impose, such as those concerning matters of safety, environment, and the like "; and (2) "[I]n reviewing a developer's appeal from a comprehensive per- mit approved with conditions under § 23, the HAC is authorized in the first instance to review and strike conditions that were not within the board's power to impose, even though such conditions may not render the project '[u]neconomic' as that term is defined in c. 40B, § 20." © 2010 Thomson Reuters 17