Agenda - Planning Commission - 02/01/2018

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Zoning Bulletin January 10, 2018 I Volume 12 I Issue 1 MASSACHUSETTS (11/13/17)—This case addressed the issue of whether a local zoning board of appeals had the power to alter a land's deed restrictions. The Background/Facts: 135 Wells Avenue, LLC ("Wells") owned a 6.3-acre parcel of land (the "Parcel") in the City of Newton (the "City"). The Parcel was located in an area known as Wells Avenue Of- fice Park (the "Office Park"), which was in a limited manufacturing zoning district and was subject to a restrictive covenant owned by the City. Among other things, the City's deed restrictions on the Parcel precluded any residential use. Wells sought to construct a 334-unit residential rental unit complex on the Parcel, with 84 of the units (25%) reserved as affordable hous- ing pursuant to Massachusetts statutory law, G.L. c. 40B §§ 20-23. Under G.L. c. 40B, a developer who seeks to build a housing development that contains at least 25% affordable housing (intended for those earning less than 80% of the medium income in the area) may apply directly to the zoning board of appeals of a local municipality for a "comprehensive permit," rather than applying to each individual agency that typically would have control over some subset of the nec- essary permits. (See G.L. c. 40B § 21.) Under G.L. c. 40B, the municipality's zoning board of appeals "has authority to review the ap- plication in its entirety, to override local requirements or regulations, and to issue `permits or approvals' to the same extent, and with the same authority, as any of those local agencies." In furtherance of its proposed development, in May 2014, Wells sought from the City's aldermen a "modification, waiver, or release of the deed restriction" to permit a residential use and to allow develop- ment in a "nonbuild zone." At the same time, Wells applied to the City's zoning board of appeals ("ZBA") for a comprehensive permit under G.L. c. 40B to build the proposed residential rental complex. In its G.L. c. 40B application, Wells requested that the ZBA "waive" the deed restrictions and permit the proposed residential use. In November 2014, the aldermen declined to modify the deed restrictions. In January 2015, the ZBA ruled that it lacked authority under G.L. c. 40B to waive or modify the deed restriction. Thereafter, Wells appealed to the Massachusetts Department of Housing and Community Development ("HAC"). HAC affiiiired the ZBA's decision that the ZBA lacked authority to amend the deed restriction. Wells then sought judicial review of the HAC decision in land court. The land court judge also concluded that neither the ZBA nor the HAC had the authority under G.L. c. 40B to require the City to amend the deed restriction so as to allow the requested residential use. Wells then appealed to the Appeals Court and also sought direct ap- © 2018 Thomson Reuters 9