SCITUATE ZONING BOARD OF APPEALS v. HERRING BROOK MEADOW, LLC, and THE MASSACHUSETTS HOUSING APPEALS COMMITTEE

On November 8, 2006, Herring Brook Meadow, LLC (developer / Herring Brook) applied to the Scituate Zoning Board of Appeals (board) for a comprehensive permit authorizing the construction of a sixty unit condominium project along State Highway Route 3A in Scituate, Massachusetts. When the board denied the application on November 9, 2007, the developer appealed the decision to the Housing Appeals Committee (HAC / Committee). [Note 1] The Committee subsequently vacated the board’s decision on May 26, 2010, ordering that the comprehensive permit issue subject to a series of conditions.

On June 24, 2010, the board sought judicial review of the Committee’s decision of May 26, 2010 in a companion case to the instant matter. See docket number 10 PS 432685. The complaint in that related matter included a request to “[c]ontinue the stay the HAC’s Decisions [sic] while these proceedings are pending..” [Note 2] There was no stay in place at the time. (See Complaint 10 PS 432685, AR. 102, ¶ 27(a)). On July 1, 2010, the board filed a motion requesting that this court stay the effects of HAC’s May 2010 decision pursuant to G.L. c. 30A, s.14. (AR. 105-08). The motion to stay was denied by this court on August 31, 2010.

Claiming to be implementing the Committee’s Order of May 26, 2010, the board, on September 21, 2010, [Note 3] issued an “amended decision” granting Herring Brook a comprehensive permit with numerous additional conditions, thirty-seven (37) in all. [Note 4] None of the conditions adopted by the Committee was included in those adopted by the board. On October 8, 2010, Herring Brook filed with the Committee its Motion to Quash Board’s Amended Decision. By decision dated December 13, 2010, HAC issued an order allowing the developer’s Motion to Quash as follows:

The motion to quash is granted. The Amended Permit is null and void. The Committee’s Decision [of May 2010] is deemed the action of the Board for all purposes relating to this comprehensive permit application….

Relying on several legal theories, the board now seeks relief from the Committee’s order of December 2010. In Count I, the board requests judicial review of that order under G.L. c. 30A, § 14. In Count II, the board seeks relief in the nature of certiorari alleging the said order is in excess of authority, unlawful, unsupported by substantial evidence, and arbitrary, capricious, and an abuse of discretion. Lastly, in Count III, the board seeks a declaratory judgment alleging, inter alia, that (a) it acted properly when issuing its amended decision under G.L. c. 40B, that (b) HAC lacked subject matter jurisdiction to hear the motion to quash, and that, (c) in any event, HAC was obliged to hold an evidentiary hearing on the said motion. [Note 5]

On February 13, 2012, pursuant to Land Court Standing Order 2-06 (1) & (4), the board moved for a Judgment on the Pleadings. Mass R. Civ. P. 12 (c). Both Herring Brook as well as the Committee oppose the motion and request that this court dismiss all counts of the complaint. The administrative record on which the motions are based consists of one volume of pleadings, correspondences, notices, orders and a decision. Arguments were heard by the court on June 11, 2012 and taken under advisement.

For the reasons which follow, the board’s motion for a judgment on the pleadings will be denied. Its complaint will be dismissed.

The Comprehensive Permit Act

“The Comprehensive Permit Act, G.L. c 40B, ss. 20-23 (Act), is designed to facilitate the development of low and moderate income housing in communities throughout the Commonwealth.” Zoning Bd. of Appeals of Holliston v. Housing Appeals Comm., 80 Mass. App. Ct. 406 , 414 (2011). The primary purpose of the Act is "to provide relief from exclusionary zoning practices which prevent the construction of badly needed low and moderate income housing." Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 354 (1973). “In addition to streamlining the permitting process itself, the clear intent of the Legislature was to promote affordable housing by minimizing lengthy and expensive delays occasioned by court battles commenced by those seeking to exclude affordable housing from their own neighborhoods.” Standerwick v. Zoning Board of Appeals of Andover, 447 Mass. 20 , 29 (2006). “The act allows a public agency, nonprofit organization, or limited dividend organization interested in constructing low or moderate income housing to circumvent the often arduous process of applying to multiple local boards for individual permits and, instead, to apply to the local board of appeals for issuance of a single comprehensive permit.” Town of Middleborough v. Housing Appeals Comm., 449 Mass. 514 , 516 (2007).

To advance these objectives, the Act establishes a straightforward appeals process. Board of Appeals of Woburn v. Housing Appeals Comm., 451 Mass. 581 , 583 (2008). When a board denies an application for a comprehensive permit, a developer’s sole remedy is by way of an appeal to the Housing Appeals Committee. See G.L. c. 40B, s. 22 (“Whenever an application filed under the provisions of section twenty-one is denied, . . . the applicant shall have the right to appeal to the housing appeals committee in the department of housing and community development for a review of the same.”). The Committee is responsible for hearing all comprehensive permit appeals filed under G.L. c. 40B, s. 22 in accordance with the rules and regulations established by the Massachusetts Department of Housing and Community Development. G.L. c. 23B, s. 5A (“Said committee shall hear all petitions for review filed under section twenty-two of chapter forty B, and shall conduct said hearings in accordance with rules and regulations established by the director.”). The relevant rules and regulations govern both substantive and procedural aspects of a comprehensive permit application. 760 CMR 56.00; See Board of Appeals v. Hanover v. Housing Appeals Comm., 363 Mass. 339 , 368 n.20 (“Therefore, any ambiguities which may remain in this statute can be resolved by administrative regulations promulgated by the [HAC]”).

The Committee conducts a de novo review to examine whether the decision of a board is reasonable and consistent with local needs. Zoning Bd. of Appeals of Holliston v. Housing Appeals Comm., 80 Mass. App. Ct. 406 , 414 (2011); Taylor v. Bd. of Appeals of Lexington, 451 Mass. 270 , 275 (2008). The legislature has mandated that a board carry out the final order of the Committee within thirty days. See G.L. c. 40B, s. 23 which provides as follows:

The board of appeals shall carry out the order of the hearing appeals committee within thirty days of its entry and, upon failure to do so, the order of said committee shall, for all purposes, be deemed to be the action of said board, unless the petitioner consents to a different decision or order by such board.

See also 760 CMR 56.07 (6)(a) which closely mirrors the language of s. 23:

The Board shall carry out an order of the Committee within 30 days of its entry, and, upon failure to do so, the order of the Committee shall for all purposes be deemed the action of the Board.

Parties aggrieved by HAC’s decision may appeal to the Superior Court or Land Court pursuant to G.L. c. 30A, s. 14. See G.L. c. 40B, s. 22; G.L. c. 185, s. 3A. The commencement of an action for judicial review does not stay the enforcement of HAC’s decision. G.L. c 30A, s.14(3) In order to stay the enforcement of the decision, either HAC or the court must expressly order a stay. G.L. c 30A, s. 14 (3). [Note 6] (“[T]he agency may stay enforcement, and the reviewing court may order a stay upon such terms as it considers proper.”).

HAC’s Enforcement Order

On October 8, 2010 the developer filed a motion with the Committee requesting that it quash the Board’s Amended Decision. A Conference of Counsel was held on November 1, 2010 and written arguments were to be submitted. (AR. 192; 199). The board filed an Opposition to Appellant’s Motion to Quash (AR. 88-133), the developer filed a Reply Brief to the Opposition (AR. 138-60), and Intervenors submitted an Opposition to the Motion to Quash (AR. 163-66) which was opposed by the developer (AR. 169-91). On December 13, 2010, the Housing Appeals Committee promulgated its decision to quash and to enforce its original decision of May 2010. (AR. 198). The Committee concluded, in large measure, that the board’s amended decision was untimely and ordered that the May 2010 decision be deemed the action of the board pursuant to G.L. c. 40B, s. 23. (AR. 200-01). HAC also found that even if the board had acted timely, it was without authority to issue an amended decision that, in substantial fashion, disregarded that of the Housing Appeals Committee. (AR. 202-04).

The board now seeks relief from the Committee’s order.

Count I: Judicial Review Under G.L. c. 30A, s. 14

In Count I of its Complaint, the board seeks judicial review of the Committee’s order pursuant to G.L. c. 30A, s.14. However, the issues in this case do not fall within the judicial review provision of the State Administrative Procedure Act (Act), G.L. c. 30A. One entitled to seek judicial review under G.L. c. 30A, must be aggrieved by a final decision of an agency in an adjudicatory proceeding. See, in this regard , G.L. c. 30A, s. 14 which reads, in pertinent part, as follows:

Except so far as any provision of law expressly precludes judicial review, any person or appointing authority aggrieved by a final decision of any agency in an adjudicatory proceeding, whether such decision is affirmative or negative in form, shall be entitled to a judicial review thereof . . . .

In the case at hand, there was no such adjudicatory proceeding.

G.L. c. 30A, s.1(1) provides in relevant part as follows:

“Adjudicatory proceeding” means a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing.

Consequently, under the Act, there need not be an adjudicatory proceeding where there is neither a constitutional nor statutory right to a hearing. Here, no statute or constitutional right required the Committee to provide the board with a hearing on the motion to quash.

The affordable housing scheme established by the Legislature mandates that HAC hold a hearing when an applicant appeals a denial or conditional approval of a comprehensive permit application. See G.L. c. 40B, s. 22. As noted in the board’s Complaint, the developer did not appeal the amended decision to HAC. (Complaint, ¶ 18). Rather, Herring Brook sought to enforce HAC’s May 2010 decision under the operative regulation, 760 CMR 56.07 (6)(d). That regulation provides as follows:

After the issuance of a Comprehensive Permit, the Committee may issue such orders as may aid in the enforcement of its decision. If a party fails to comply with an order issued by the Committee, it may impose appropriate sanctions, including the imposition of costs.

Notably, the board has failed to allege that it has a constitutional right to an agency hearing. See Warren v. Hazardous Waste Facility Site Safety Council, 392 Mass. 107 , 116-17 (1984) (“Since the town does not contend that [any] other statute required such a hearing, the question whether the council's . . . determination was made in an adjudicatory proceeding depends on whether the town had a constitutional right to an adversary hearing. We conclude that it did not have such a right.”). The court is satisfied that the board had neither a statutory nor a constitutional right to a hearing inasmuch as the Committee’s order was not the result of an "adjudicatory proceeding" as that term is defined in G.L. c. 30A(1). Therefore, the board may not rely on G.L. c. 30A, s. 14, to secure review of that order.

Count II: Certiorari

Count II of the complaint seeks certiorari review of the Committee’s order pursuant to G.L. c. 249, s. 4. [Note 7] "An action in the nature of certiorari serves to correct errors of law in administrative proceedings where judicial oversight is not otherwise available.” Friedman v. Conservation Commission of Edgartown, 62 Mass. App. Ct. 539 , 542 (2004). "The court's power on certiorari is not exercised to remedy mere technical errors that have not resulted in manifest injustice." Massachusetts Prisoners Assn. Political Action Comm. v. Acting Governor, 435 Mass. 811 , 824 (2002). Certiorari does not provide an additional avenue of appellate review. Cumberland Farms, Inc. v. Planning Bd. of Bourne, 56 Mass. App. Ct. 605 , 607 (2002). “Certiorari cannot be requested where administrative remedies terminating in judicial review are available and unexhausted." St. Botolph Citizens Comm., Inc. v. Boston Redev. Authy., 429 Mass. 1 , 7 (1999).

“The requisite elements for the availability of certiorari are (1) a judicial or quasi judicial proceeding (2) from which there is no other reasonably adequate remedy (3) to correct substantial error of law apparent on the record (4) that has resulted in manifest injustice to the plaintiff or an adverse impact on the real interests of the general public.” State Bd. of Retirement v. Woodward, 446 Mass. 698 , 703-704 (2006). The board’s pleadings fail to satisfy the majority of these requisites.

The board has an alternative, adequate remedy. In this case, the statutory scheme established by the Legislature allows the board to seek relief from the effects of the Committee’s order of May 2010, the operative comprehensive permit. That permit is subject to judicial review under G.L. c. 40B, s. 22. (See in this regard, companion case 10 PS 432685, referenced supra, wherein the board has elected to pursue that remedy.) The comprehensive permit does not become a “final permit” until all appeals have been exhausted. 760 CMR 56.05 (12)(a) (“A Comprehensive Permit shall become final . . . on the date the last appeal is decided . . . .”). Any construction commenced under the operative permit can be ordered to be taken down at the developer’s expense. See 760 CMR 56.05 (12)(a) (“[I]f a Comprehensive Permit is issued by the Board or the Committee and is subsequently subject to legal appeal, an Applicant may elect to proceed at risk with construction of the Project.”). If the board were to prevail in the related case, the Committee’s decision of May 26, 2010 would be rendered null and void. In that event, the operative permit would be terminated. Such remedy would readily provide the relief the board seeks.

Additionally, the board has failed to allege in its pleadings that certiorari is necessary in this situation to correct a “substantial error of law apparent on the record” that will have an “adverse impact on the real interests of the general public.” State Bd. of Retirement v. Woodward, 446 Mass. 698 , 703-704 (2006). In its complaint, the board alleges that the Committee’s order is unlawful, made in excess of its authority, arbitrary, capricious, and constitutes an abuse of discretion. (Compl. ¶ 28-32). Nowhere in the pleadings does the board point to a substantial error of law that is readily apparent on the record. [Note 8] Moreover, the board does not allege any severe injury to the general public resulting from the Committee’s order.

Consequently, the board may not rely upon an action in the nature of certiorari under G.L. c. 249, s. 4, to obtain relief from HAC’s order.

Counts III: Declaratory Judgment

In Count III, the board seeks a declaration (a) invalidating the Committee’s order pursuant to G.L. c. 231A; (b) that HAC acted improperly by issuing the order, and (c) that the board acted both timely and within its authority by issuing its amended decision.

If certain prerequisites are met, a complaint for declaratory relief provides an appropriate avenue for challenging the legality of an administrative action, even though such action comprises neither an adjudication nor promulgation of a regulation. Haverhill Manor, Inc. v. Commissioner of Pub. Welfare, 368 Mass. 15 , 30 (1975). To secure declaratory relief in a case involving administrative action, a plaintiff must demonstrate that “(1) there is an actual controversy; (2) he has standing; (3) necessary parties have been joined; and (4) available administrative remedies have been exhausted.” Villages Dev. Co. v. Secretary of the Executive Office of Envtl. Affairs, 410 Mass. 100 , 106 (1991).

Here, a controversy plainly exists which arises from Committee’s order and its impact upon the board’s legal rights. This court is satisfied, as a consequence, that the board possesses the necessary standing, as well. Villages Dev. Co. v. Secretary of the Executive Office of Envtl. Affairs, 410 Mass. 100 , 106 (1991). Moreover, as the board has no other avenue for relief from the Committee’s Order on the Motion to Quash, this court is satisfied that it has exhausted its administrative remedies. Consequently, this court may properly hear the board’s claim for declaratory relief. It is readily apparent to this court, however, that the Committee’s order is not erroneous as a matter of law, and that it was properly issued pursuant to its statutory authority.

Comprehensive Permit became Operative after Thirty Days

“The board was obligated to ‘carry out the order of the Committee within thirty days of its entry and, upon failure to do so, the order of said committee shall, for all purposes, be deemed to be the action of said board’” Taylor v. Board of Appeals of Lexington, 451 Mass. 270 , 276 (2008), quoting G. L. c. 40B, s. 23. As previously noted, the Committee’s decision was promulgated on May 26, 2010. The board filed its appeal seeking judicial review twenty nine days thereafter. The board purported to act on that decision on September 21, 2010 four months later. Consequently, its actions were untimely in the extreme. By operation of statute, “the board is deemed, for all purposes, to have issued the comprehensive permit as ordered by the Committee. [Note 9] Taylor v. Board of Appeals of Lexington, 451 Mass. 270 , 276-77 (2008). HAC correctly issued an order to enforce its decision in accordance with its legislative mandate and regulations. G.L. c. 40B, s. 23; 760 CMR 56.07 (6)(d)

The board argues that it acted timely by appealing the Committee’s decision within the thirty day period and requesting a stay. Without citing to any decisional precedent (Plaintiff’s Motion for Judgment on the Pleadings, p. 7), the board contends that by merely requesting a stay in its complaint, the mandatory thirty day time period for the board to comply with the May 2010 decision was tolled until the court denied said request. This argument lacks merit, however.

The contention that merely requesting a stay [Note 10] in a complaint somehow operates to toll the mandatory thirty day time period, flies in the face of the governing statutes and regulations. “It is incumbent on all parties in [40B proceedings], and the HAC, to proceed as expeditiously as possible.” [Note 11] Taylor v. Board of Appeals of Lexington, 451 Mass. 270 , 276-77 (2008). General Laws c. 40B, s. 23 obligates the board to carry out HAC’s decision within thirty days. See also 760 CMR 56.07 (6)(a) (“The Board shall carry out an order of the Committee within 30 days of its entry, and, upon failure to do so, the order of the Committee shall for all purposes be deemed the action of the Board.”).

Critically, the statue under which the board seeks judicial review, recites in explicit terms that commencement of an action does not operate to stay the enforcement of the agency decision. See G.L. c. 30A, § 14 (3) (“The commencement of an action shall not operate as a stay of enforcement of the agency decision, but the agency may stay enforcement, and the reviewing court may order a stay upon such terms as it considers proper.”). The Committee’s regulations also allow developers to proceed at their own risk pending the outcome of all appeals. 760 CMR 56.05 (12)(a) (“if a Comprehensive Permit is issued by the Board or the Committee and is subsequently subject to legal appeal, an Applicant may elect to proceed at risk with construction of the Project.”).

Accordingly, without a timely stay of enforcement either from the Committee or from this court, the May 2010 decision remained in full force and effect. Longo v. Board of Appeals on Motor Vehicle Liability Policies & Bonds, 356 Mass. 24 , 27-28 (1969) (“[R]eview under G. L. c. 30A, Section 14 does not stay an agency decision until so ordered by the reviewing court. . . . . Until that date it was the duty of the petitioner to obey the agency's decision.”). Neither HAC nor this court ever issued a stay. As a consequence, the Committee’s decision of May 26th remained in effect. The mandatory time period within which the board was obliged to comply had not been tolled. By operation of G.L. c 40B, s. 23, “[T]he board is deemed, for all purposes, to have issued the comprehensive permit as ordered by the HAC.” Taylor v. Board of Appeals of Lexington, 451 Mass. 270 , 276-77 (2008).

A motion to stay was not filed with this court until July 1, 2010, thirty six days after the board’s decision was rendered. Consequently, the time for the board to comply with the order of May 26, 2010 had already passed. By operation of law, the comprehensive permit as conditioned by the Committee, had been deemed for all purposes, to have issued as directed by HAC. Taylor v. Board of Appeals of Lexington, 451 Mass. 270 , 276-77 (2008).

As to whether the board had the authority to render an “amended decision” imposing additional conditions while disregarding those of the Committee, that question has in a technical sense, been rendered moot inasmuch as the Committee’s order had long since become operative. Even were it otherwise, however, this court is satisfied that the board’s “amended decision” was in no way consistent with the order of the Housing Appeals Committee. It is this court’s view that the “amended decision” would, if allowed to stand, effectively recast the G.L.c. 40B procedure in a manner at variance with the underlying Legislative mandate and intent. [Note 12]

Accordingly, it is

ORDERED that Plaintiffs Motion for Judgment on the Pleadings be, and hereby is, DENIED. It is further

ORDERED that the plaintiff’s complaint shall be dismissed.

Judgment to issue accordingly.

SO ORDERED.

By the Court (Grossman, J.)