Introduction

In November of 2006, Herring Brook Meadow, LLC (developer / Herring Brook) submitted a comprehensive permit application pursuant to G.L. c. 40B, to the town of Scituate Zoning Board of Appeals (board) seeking approval for a sixty (60) unit condominium complex in Scituate. The board held public hearings and issued a decision denying the comprehensive permit application on November 9, 2007. The developer appealed the decision to the Massachusetts Housing Appeals Committee (HAC / Committee) pursuant to s. 22 of c. 40B.

The board filed a motion to dismiss the appeal before the Committee, asserting that the developer had failed to submit a sufficient application for the board to evaluate. The motion was denied, whereupon the parties submitted pre-filed testimony. A four day evidentiary hearing ensued before a HAC hearing officer. On May 26, 2010, HAC promulgated a final decision overturning the board’s denial and ordering that a comprehensive permit issue.

On June 24, 2010 the board appealed the Committee’s decision to this court pursuant to G.L. c. 40B, § 22 and G.L. c. 30A, §14 (Count I) and G.L. c. 231A (Count II & III). The board alleges that the hearings were improperly adjudicated, that the decision is arbitrary, capricious, constitutes an abuse of discretion, and is unsupported by substantial evidence. The board seeks declaratory relief and asks that the Committee’s decision be annulled.

The board has moved for a judgment on the pleadings while the developer has filed an opposition and a cross motion for judgment on the pleadings. Additionally, the Committee, represented by the Office of the Attorney General, has filed an opposition to the board’s motion for judgment on the pleadings. The administrative record on which the motions are based consists of three volumes of exhibits (2,122 pages), two volumes of pleadings, correspondences, and decisions (1,089 pages), and four volumes of hearing transcripts (742 pages). Arguments were heard on June 11, 2012 and taken under advisement. For the reasons set forth below, this court is satisfied that there is substantial evidence in the record to support the Committee’s decision. Accordingly, that decision will be affirmed.

Background

The proposed development is located on approximately fifteen (15) acres of land off state highway Route 3A in the southern part of Scituate, Massachusetts. The project site is composed of two adjacent parcels, one large northern parcel and one small southern parcel. (Ex. 3A, AR. 23-28). The smaller parcel approximates one (1) acre, directly abuts the state highway, and is improved by a single family dwelling that the developer proposes to demolish. (Ex. 3A, AR. 23; Ex. 22, AR. 556). The larger parcel is an area of open space directly abutting the state highway and consisting of a large meadow, a maritime forest community, and a salt marsh. (Ex. 3A, AR. 24; Ex. 23, AR. 556). The developer’s proposal calls for the construction of three separate buildings housing in the aggregate, sixty (60) garden-style condominium units. (Ex. 2, AR. 11, ¶ 4). The buildings will be located within a four acre portion of the property adjacent to the state highway. (Ex. 2, AR. 11, ¶ 4; Ex. 3A, AR. 24).

The proposed development would be located in the A-1 Residential Zoning District as well as the Saltmarsh and Tideland Conservation District, the Flood Plain and Watershed Protection District, the North River Scenic Corridor, and a Zone II Well-Head protection area. (Ex. 2 AR. 12, ¶ 10-12). The site also includes an area protected by the Natural Heritage and Endangered Species Program of the Massachusetts Division of Fisheries and Wildlife. (Ex. 81, AR. 1608, ¶ 7). The property is bounded on the east by an abandoned railroad bed that is owned by the Scituate Conservation Commission. (Ex. 3A, AR. 23; Ex. 22, AR. 556). Additionally, the property is adjacent to the First Herring Brook on its northern boundary, a river that flows into the North River which, in turn, flows into the Atlantic Ocean. (Ex. 2, AR. 11, ¶ 8; Ex. 3A, AR. 24).

Due to its elevation in certain areas, portions of the site are subject to significant periodic flooding. (Ex. 2, AR. 11-13, ¶ 8-14; Ex. 22; Ex. 84, AR. 1674-76, ¶ 4-8). An area of specific concern is a centrally located low lying depression identified as Isolated Land Subject to Flooding (ILSF ). (Ex. 3A, AR. 23) Within the ILSF is an area (disputed area) with a significant amount of Phragmites australis and purple loosestrife. [Note 1] (Ex. 3A, AR. 23; AR. 1674-76, ¶ 9). A large portion of the disputed area was subject to routine agricultural plowing and alteration by the previous owner. (Ex. 83, AR. 1646-48, ¶ 9, 13).

To accommodate the proposed project, the developer intends to fill and relocate the ILSF to an area with increased capacity. (Ex. 75, AR. 1563-64, ¶ 12). The developer asserts that this relocation will improve the wildlife habitat and vegetation at the site. (Ex. 86, AR. 1996-97, ¶ 34). In preparation for the application, the developer obtained the necessary approvals from the Massachusetts Department of Environmental Protection. (Ex. 74, AR. 1546-54, ¶ 17-31), and the Scituate Conservation Commission. (Ex. 22, AR. 566-68). In November of 2006, the developer submitted an application to the board for a comprehensive permit.

The Comprehensive Permit Act

“The Comprehensive Permit Act [Note 2] G.L. c 40B, ss. 20-23, 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 Bd. 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). The statute grants local zoning boards the authority to override local requirements and regulations that are inconsistent with the local need for affordable housing. Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 354 (1973) (“Our decision that the committee has the authority to override local requirements and regulations that are inconsistent with local needs by implication necessitates a construction of the statute which confers this same authority upon the boards.”). When a board denies an application for a comprehensive permit, a developer’s sole remedy consists of an appeal to the 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.”).

Housing Appeals Committee

The Housing Appeals Committee is a division within the Department of Housing and Community Development. G.L. c. 23B, s.5A. It 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 agency. 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 Committee’s promulgated rules and regulations govern both substantive and procedural aspects of the comprehensive permit application process. 760 CMR 56.00; See Board of Appeals of 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 [Committee]”); Cleary v. Cardullo’s Inc., 347 Mass. 337 , 344 (1964) (“[T]he details of legislative policy, not spelt out in the statute, may appropriately be determined, at least in the first instance, by an agency charged with administration of the statute”). The Committee can also develop agency policy through the adjudicatory process. See Board of Appeals of Woburn v. Housing Appeals Comm., 451 Mass. 581 , 584 (2008) (“‘It is a recognized principle of administrative law that an agency may adopt policies through adjudication as well as through rulemaking,’ and ‘the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.’” quoting Hastings v. Commissioner of Correction, 424 Mass. 46 , 49 (1997)). The decisive inquiry for the Committee to examine on appeal is whether the decision of a board is reasonable and consistent with local needs. Zoning Board of Appeals of Holliston v. Housing Appeals Comm., 80 Mass. App. Ct. 406 , 414 (2011).

Judicial Review

This court’s review of the HAC decision is governed by G.L. c 30A. See G.L. c. 40B, s. 22. “Under the State Administrative Procedure Act, we defer to the fact-finding function of the [Committee] where substantial evidence exists to support its findings and there is no error of law.” Wynn & Wynn, PC v. Massachusetts Commission Against Discrimination, 431 Mass. 655 , 658 (2000), citing G. L. c. 30A, s. 14 (7). In the matter at bar, the court is satisfied that the Committee’s conclusions were supported by substantial evidence appearing on the record.

In Rogers v. Conservation Comm. of Barnstable, 67 Mass. App. Ct. 200 (2006), the Appeals Court spoke of the “substantial evidence” standard, as follows:

An agency’s finding must be set aside if the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability to the contrary…. A finding is based upon substantial evidence if experience permits the reasoning mind to make the finding; [i.e.] whether the finding could have been made by reference to the logic of experience…. The substantiality of the evidence must take into account whatever in the record fairly detracts from its weight.” [Note 3]

Judicial review is confined to the record and this court must “give due weight to the experience, technical competence, and specialized knowledge of the [Committee], as well as to the discretionary authority conferred upon it.” G.L. c. 30A, s. 14 (7). The agency is also granted deference in determining the credibility of witnesses and inferences to be drawn from the testimony and factual record. Zoning Bd. of Appeals of Canton v. Housing Appeals Comm., 76 Mass. App. Ct. 467 , 472 (2010) (“[W]here, as here, a decision rests in part on an agency's assessment of witnesses, we give particular deference to credibility determinations and inferences drawn from the facts.”) “A court may not displace an administrative board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” (emphasis supplied) Middleborough, 449 Mass. at 529.

“In general, we give 'substantial deference' to an agency's interpretation of those statutes which it is charged with enforcing." Providence & Worcester R.R. v. Energy Facilities Siting Bd., 453 Mass. 135 , 141 (2009). Deference is particularly appropriate when the statute in question explicitly grants broad rule-making authority to the agency, contains an ambiguity or gap, or broadly sets out a legislative policy that must be interpreted by the agency. See Zoning Bd. of Appeals of Amesbury v. Housing Appeals Comm., 457 Mass. 748 , 759 (2010); Goldberg v. Board of Health of Granby, 444 Mass. 627 , 634 (2005); Massachusetts Org. of State Engineers & Scientists v. Labor Relations Commission, 389 Mass. 920 , 924 (1983).

Thus, the Committee’s regulations are deemed valid unless they cannot reasonably be interpreted in harmony with the legislative mandate of the agency. Zoning Bd. of Appeals of Canton v. Housing Appeals Comm., 451 Mass. 158 , 161 (2008) (“[R]eview of an agency's properly promulgated regulation is deferential; regulations ‘are not to be declared void unless their provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate.’”); Globe Newspaper Co. v. Beacon Hill Architectural Commission, 421 Mass. 570 , 583 (1996) (Administrative agency "has jurisdiction to establish regulations that bear a rational relation to the statutory purpose"); “Moreover, we recognize that ‘where the focus of a statutory enactment is reform,’ as is true of the act, ‘the administrative agency charged with its implementation should construe it broadly so as to further the goals of such reform.” Town of Middleborough v. Housing Appeals Comm., 449 Mass. 514 , 524 (2007), quoting Massachusetts Federation of Teachers, AFT, AFL-CIO v. Board of Education, 436 Mass. 763 , 774 (2002); Beth Israel Hospital Association v. Board of Registration in Medicine, 401 Mass. 172 , 176 (1987) ("[R]egulation may be authorized though not traceable to specific statutory language, [and] powers granted include those reasonably implied").

“A reasonable regulation of [the Committee] which is clear and unambiguous on its face must, like a comparable statute, be applied according to its terms.” Zoning Bd. of Appeals of Greenfield v. Housing Appeals Comm., 15 Mass. App. Ct. 553 , 559 (1983). Additionally, the Committee’s interpretation of its own rules and regulations is a determination to which the judiciary will generally defer, in the absence of clear error by the agency. See Finkelstein v. Board of Registration in Optometry, 370 Mass. 476 , 478 (1976) (“[A]n agency's interpretation of its own rule is entitled to great weight.”). “However, this principle is one of deference, not abdication, and courts will not hesitate to overrule agency interpretations of rules when those interpretations are arbitrary, unreasonable or inconsistent with the plain terms of the rule itself.” Finkelstein v. Board of Registration in Optometry, 370 Mass. 476 , 478 (1976).

In evaluating the instant decision, this court “must examine the committee’s decision upon consideration of the entire record’ and determine whether there was substantial evidence…to support HAC’s decision.” Zoning Bd. of Appeals of Canton v. Housing Appeals Committee, 76 Mass. App. Ct. 467 , 472 (2010), quoting Board of Appeals of Hanover, 363 Mass. at 376. In light of this highly deferential standard, the board as the appealing party bears a heavy burden of showing that the Committee’s decision is not supported by substantial evidence. Middleborough v. Housing Appeals Committee, 449 Mass. 514 , 524 (2007). See Zoning Bd. of Appeals of Canton v. Housing Appeals Committee, 76 Mass. App. Ct. 467 , 473 (2010) (“An agency decision will be upheld ‘unless it is based on an error of law, unsupported by substantial evidence, unwarranted by facts found on the record as submitted, arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.’”, quoting DSCI Corp. v. Department of Telecommunication & Energy, 449 Mass. 597 , 603 (2007)).

Count I: The HAC Decision

The board’s challenge to the HAC decision falls into three distinct categories. First, the board avers that the Committee erroneously denied its motion to dismiss. Second, the board alleges that the administrative record established the existence of local concerns that outweigh the community’s need for affordable housing. Third, the board argues that the Committee’s decision is flawed because it is predicated upon the “illegal” use of a hearing officer.

In view of the foregoing, the board contends that the Committee’s decision is (a) in excess of its jurisdiction, (b) based on errors of law and illegal procedures, (c) unsupported by substantial evidence, (d) unwarranted by the facts found on the record, (e) arbitrary and capricious, (f) an abuse of discretion and (g) not otherwise in accordance with law.

Each of the three categories will be addressed seriatim.

Motion to Dismiss

The board argues that HAC should have allowed its motion to dismiss due to Herring Brook’s failure to submit a sufficient and complete application. The board argues that the developer failed to adequately disclose required information concerning the project’s finances. [Note 4] The Committee considered the motion to dismiss and concluded that the board’s argument was unpersuasive and lacking merit. (Ruling on Motion to Dismiss, AR. 3046-3057).

The evidence before the Committee demonstrated that in November of 2006, Herring Brook submitted an application to the board. (Ex. 7, AR. 73) The application included a request for a public hearing (Ex. 7, AR. 76), a detailed description of the proposed development that includes plans and drawings (Ex. 7, AR. 83; 119-29), an intention to file as a limited dividend corporation (Ex. 7, AR. 85-105), a project approval letter from the Massachusetts Housing Finance Agency (Ex. 7, AR. 107-113), documentation alleging site control (Ex. 7, AR. 115-118), an existing site conditions report (Ex. 7, AR. 131), a list of requested waivers (Ex. 7, AR. 133-35), and a traffic report. (Ex. 7, AR. 136-51). The Committee found that the developer’s application was adequate. Specifically, it determined that the developer was not required to include a financial statement in its application to the board. (Ruling on Motion to Dismiss, AR. 3053-54).

Based upon its regulations, the Committee’s ruling did not constitute an error of law. Zoning Bd. of Appeals of Canton v. Housing Appeals. Comm., 76 Mass. App. Ct. 467 , 473 (2010) (“An agency decision will be upheld ‘unless it is based on an error of law . . . .”); Cf. Zoning Bd. of Appeals of Holliston v. Housing Appeals Comm., 80 Mass. App. Ct. 406 , 415 (2011) (“The regulatory scheme governing applications for comprehensive permits, however, requires only preliminary plans”). The developer’s application and description comport with the basic requirements set out in the applicable HAC regulation. See in this regard 760 CMR 56.05 (2). [Note 5]

Financial information is not a requisite and thus its omission from the initial filing could not invalidate the application. Cf Massachusetts Outdoor Advertising Council v. Outdoor Advertising Bd., 9 Mass. App. Ct. 775 , 783 (1980) (“What the [HAC’s] regulations establish is an administrative . . . procedure which enables the [HAC] to determine whether there exist any material disputes concerning facts which would have the effect of conclusively requiring refusal of a permit application.”). The Committee’s regulations do not require the developer to submit financial information to the board in order to constitute a sufficient application. See 760 CMR 56.05 (2).

However, even if such information were required, the “failure to submit a particular item shall not necessarily invalidate an application.” 760 CMR 56.05 (2). In light of applicable regulatory provisions together with HAC’s expertise in evaluating such submissions pursuant to G.L. c. 40B, its determination that the application in this matter was complete is entirely reasonable and will be affirmed. See G.L. c. 30A, § 14 (7) (“The court shall give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.”).

Issues of Local Concern

On appeal, the Committee is to determine whether "the decision of the board of appeals was reasonable and consistent with local needs." G. L. c. 40B, § 23. HAC may uphold the board’s denial of the comprehensive permit as "reasonable and consistent with local needs" if the community's need for low or moderate income housing is outweighed by valid planning objections to the proposal, based upon considerations such as health, site, design, and the need to preserve open space.” G.L.c. 40B, ss. 20-23. In order to determine if the board’s decision is consistent with local needs, HAC must conduct a de novo review. Taylor v. Board of Appeals of Lexington, 451 Mass. 270 , 275 (2008) (“[T]he HAC provides a de novo hearing . . . only to the limited issues before it.”).

At the outset, it is the developer, here Herring Brook, that bears the burden of proving it has met the project eligibility requirements for a Chapter 40B project. 760 CMR 31.01 (1). [Note 6] If the developer meets its burden, it next must submit evidence establishing, inter alia, a prima facie case that its application complies with federal and state law, and with local regulations, as well. Zoning Bd. of Appeals of Holliston v. Housing Appeals Committee, 80 Mass. App. Ct. 406 , 414 (2011), quoting, 760 Code Mass. Regs. § 56.07(2)(a)(2) (2008) (“Before the HAC, a developer whose comprehensive permit has been denied may establish a prima facie case by proving ‘that its proposal complies with federal or state statutes or regulations, or with generally recognized standards as to matters of health, safety, the environment, design, open space, or other matters of Local Concern.’”).

Once the developer has met these initial requirements, the burden shifts to the board to prove that there is a valid health, safety, environmental, design, open space, or other local concern which supports the board’s decision. Board of Appeals of Woburn v. Housing Appeals Committee, 451 Mass. 581 , 584 (2008) (“When a denial is reviewed by the committee, the local board of appeals has the burden of proving . . . that there is a valid local concern which supports such denial, and then, that such concern outweighs the regional housing need.”). (emphasis supplied) Zoning Bd. of Appeals of Canton v. Housing Appeals Comm., 76 Mass. App. Ct. 467 , 469 (2010) (“The board bears the burden of proving, . . . that such concern outweighs the regional housing need.”). Where, as here, the town has not achieved a ten percent minimum, there is a rebuttable presumption that the regional housing need outweighs local concerns. [Note 7] Zoning Bd. of Appeals of Holliston v. Housing Appeals Committee, 80 Mass. App. Ct. 406 , 414 (2011). If the board endeavors to rebut the presumption, regional housing need factors must be balanced against the board’s local concerns. [Note 8] Zoning Bd. of Appeals of Canton v. Housing Appeals Comm., 76 Mass. App. Ct. 467 , 469 (2010) (“Where the town attempts to rebut the presumption, [the regulation] prescribes the factors to be considered in balancing the housing need . . . against the local concerns.”). After review, if, in the case of a denial, the Committee finds that the decision of the board “was unreasonable and not consistent with local needs, it shall vacate such decision and shall direct the board to issue a comprehensive permit or approval to the applicant.” Board of Appeals of Hanover v. Housing Appeals Committee, 365 Mass. 339 , 346 (1973).

Eligibility

The developer first has the burden of proving that it has met the eligibility requirements for a project under G.L. c. 40B. 760 CMR 31.01 (1). In order for the Committee to review the board’s decision, the agency’s regulations require that the developer prove that (a) the applicant is or will be a public agency, a non-profit organization, or a limited dividend organization (760 CMR 31.01 (1)(a)); (b) the project is or will be fundable by a subsidizing agency under a low or moderate income housing subsidy program (760 CMR 31.01 (1)(b)); and (c) the applicant controls the site.

760 CMR 31.01 (1)(c).

In the case at hand, the Committee found that the developer met these preliminary requirements. This determination was based upon substantial evidence insofar as evidence in the administrative record demonstrates that the developer intends to qualify as a limited dividend organization (Ex. 78, AR. 1586, ¶ 9-10), has received approval from the Massachusetts Housing Finance Agency (Ex. 1, AR. 1-7 ), and has established site control. (Ex. 78, AR. 1584, ¶ 3-4; Ex. 56, AR. 1096).

Developer’s Prima Facie Case

If the developer meets the eligibility requirements, it next must submit evidence establishing, on a prima facie basis, that its application complies with federal and state law, as well as with applicable local regulations. 760 CMR 56.07 (2)(a)(2). “Prima facie evidence means evidence which, standing alone, maintains the proposition and warrants the conclusion to support which it is introduced.” Cincotta v. Dupuy, 294 Mass. 298 , 299 (1936). Contrary to the board’s assertion, the developer need not demonstrate full compliance in order to meet this burden. Board of Appeals of Hanover, 363 Mass. at 375, 381 (finding that permit can be conditioned on “completion of proposed work in accordance with identified plans or other certain standards.”). It is clear on the administrative record, that Herring Brook successfully made out a prima facie case regarding the two issues now in contention between the parties, i.e. municipal wetland concerns and municipal planning concerns.

The board argues that in rendering its decision, the Committee misconstrued its own regulations which establish the developer’s prima facie burden. Those regulations provide that “the Applicant may establish a prima facie case by proving, with respect to only those aspects of the Project which are in dispute… [Note 9] that its proposal complies with federal or state statutes or regulations, or with generally recognized standards as to matters of health, safety, the environment, design, open space, or other matters of Local Concern.” 760 CMR 56.07 (2)(a)(2) (emphasis supplied).

The Committee construes this regulation, 760 CMR 56.07 (2)(a)(2), as being limited to federal law, state law, and matters of local concern that have generally recognized standards. The board argues that HAC “fundamentally” misinterprets its own regulation and avers that the phrases “environmental matters” and “other matters of Local Concern” place the burden of proof on the developer to demonstrate compliance with the town’s wetlands regulations . (Plaintiff’s Motion for Judgment on the Pleadings and Memorandum in Support Thereof, 33, ¶ 1). For the reasons stated below, this court finds that HAC has reasonably construed its own regulations.

“[T]he application of a regulation to the particular facts of a case is within an agency's discretion and we accord an agency's interpretation of its own regulations substantial deference.” Biogen Idec MA, Inc. v. Treasurer and Receiver General, 454 Mass. 174 , 184 (2009). Under this standard, HAC’s interpretation may be overturned only if it is arbitrary, unreasonable or inconsistent with the plain terms of the regulation itself. See Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762 , 782 (1980) (“In the absence of clear error, the interpretation an administrative body gives to its own rule is entitled to deference.”); Town of Middleborough v. Housing Appeals Comm., 449 Mass. 514 , 524 (2002) (“Agency action will not be overturned unless it be proven arbitrary, unreasonable, or inconsistent with the agency's own rules.”). “However, this principle is one of deference, not abdication, and courts will not hesitate to overrule agency interpretations of rules when those interpretations are arbitrary, unreasonable or inconsistent with the plain terms of the rule itself.” Finkelstein v. Board of Registration in Optometry, 370 Mass. 476 , 478 (1976). In its argument, the board fails to address the regulation’s modifying phrase “generally recognized standards.” This phrase expressly limits matters of local concern that the developer must prove to ones that have generally recognized standards. See 760 CMR 56.07 (2)(a)(2). Applying common rules of statutory construction to the regulation, it is entirely reasonable to apply the modifying phrase to the residual clause “other matters of Local Concern.”

“[U]nder the doctrine of ejusdem generis, ‘where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.’”. Commonwealth v. Hamilton, 459 Mass. 422 , 432 n.12 (2011), quoting 2A N.J. Singer, Sutherland Statutory Construction § 47:17, at 358-60 (7th ed. 2007)); Powers v. Freetown-Lakeville Regional Sch. Dist. Comm., 392 Mass. 656 , 660 & n.8 (1984), quoting United States v. Powell, 423 U.S. 87, 91 (1975) (principle of ejusdem generis is a "rule of construction ... employed to ascertain the correct meaning of words by limiting `general terms which follow specific ones to matters similar to those specified'"). Additionally, the word “or” in the context of the regulation can reasonably be viewed as disjunctive. Bleich v. Maimonides School, 447 Mass. 38 , 46-47 (2006) (“It is fundamental to statutory construction that the word "or" is disjunctive "unless the context and the main purpose of all the words demand otherwise”); Eastern Massachusetts St. Ry. v. Massachusetts Bay Transp. Auth., 350 Mass. 340 , 343 (1966) (“The word ‘or’ is given a disjunctive meaning unless the context and the main purpose of all the words demand otherwise.”

Applying both of these well known cannons of statutory construction, HAC’s interpretation of its own regulation is entirely reasonable. The last phrase “other matters of Local Concern” can rationally be viewed to include only matters of local concern that carry with them generally recognized standards, such as the other specifically enumerated matters of local concern (health, safety, the environment, design, open space). See 760 CMR § 56.07 (2)(a)(2). This court is satisfied that the agency’s interpretation is not arbitrary, unreasonable or inconsistent with the plain terms of the regulation itself. See Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762 , 782 (1980). Viewing the administrative record in this light, there was substantial evidence to support HAC’s conclusion that the developer met its prima facie burden as to wetlands and municipal planning concerns.

In this regard, Herring Brook submitted evidence from the United States Army Corp of Engineers that demonstrated compliance with federal statutes and regulations. (Ex. 13, AR. 286-89; Ex. 74, ¶ 16). The developer demonstrated compliance with state statutes and regulations by means of documentary evidence from the Massachusetts Department of Environmental Protection and the Massachusetts Secretary of Energy and Environmental Affairs. (Ex. 27, AR. 756; Ex. 65, AR. 1145-50; Ex. 74, ¶ 17-28). To the extent that there are general standards for local environmental matters, the developer satisfied that burden with the submission of an Order of Resource Area Delineation (ORAD) from the Scituate Conservation Commission. (Ex. 22, 566-68).

The board argues that the ORAD expired on November 15, 2007 and as a matter of law could not have been considered by the Committee. However, this argument overlooks the fact that HAC’s de novo review examines the developer’s application to the board, not the appellants appeal to the HAC. See Taylor v. Board of Appeals of Lexington, 451 Mass. 270 , 275 (“While the HAC provides a de novo hearing, this standard of review applies only to the limited issues before it. By the terms of the statute, the issues before the HAC are ‘limited to the issue of whether, in the case of the denial of an application, the decision of the board of appeals was reasonable and consistent with local needs’”, quoting G.L. c 40B, § 23); 760 CMR 56.02 (“Local Requirements and Regulations – mean . . . [requirements] in effect on the date of the Project’s application to the Board.”).

Such evidence, standing alone, warrants the conclusion that the developer has complied with generally recognized standards regarding local wetland concerns. See Cincotta v. Dupuy, 294 Mass. 298 , 299 (1936) (““Prima facie evidence means evidence which, standing alone, maintains the proposition and warrants the conclusion to support which it is introduced.””). This court is of the opinion that there is ample evidence on the record to demonstrate that the developer has met its prima facie burden concerning the wetland requirements.

Second, there is substantial evidence on the record to support the Committee’s finding that the developer made out a prima facie case regarding municipal planning concerns. Since there are no specific state or federal statutes or regulations addressing municipal planning concerns, the developer may establish a prima facie case by showing that its proposal conforms to generally recognized standards. 760 CMR 56.07 (2)(a)(2) ; 28 Clay Street Middleborough, LLC v. Zoning Bd. of Appeals of Middleborough, No. 06-16, slip op. at 6 (HAC Sept. 28, 2009). Generally recognized standards for local planning include the Commonwealth’s Sustainable Development Principles (Ex. 69, AR. 1337) and the Metropolitan Area Planning Council’s Smart Growth Principals. (Ex. 68, AR. 1334-36; Ex. 73, AR. 1525-32, ¶ 17-18).

In this regard, HAC determined that Herring Brook had met its prima facie burden. The developer presented testimony from John Connery, a planning consultant with over thirty years of experience in community planning. (Ex. 73, AR. 1520, ¶ 1-3) Mr. Connery testified that the town’s 2004 Master Plan incorporates the Metropolitan Area Planning Council’s Smart Growth principals. (Ex. 70, AR. 1349; Ex. 68; Ex. 73, AR. 1521-22, ¶ 5-9). He also testified that he is familiar with these principles and the Commonwealth’s Sustainable Development principles. (69; Ex. 73, AR. 1522, ¶ 3-9). He concluded that the “proposed residential project is consistent with the Sustainable Development Principles of the Commonwealth and the applicable Smart Growth Principals of MAPC.” (Ex. 73, AR. 1532, ¶ 19).

The developer also submitted evidence from the Massachusetts Housing Finance Agency that found the proposed “housing design and land use plan are generally appropriate for the Site and Site location,” after an on-site inspection and review of pertinent information. (Ex. 1, AR. 1-2). These two items of evidence, standing alone, warrant the conclusion that the developer has complied with generally recognized standards regarding local planning concerns. See Cincotta v. Dupuy, 294 Mass. 298 , 299 (1936) (““Prima facie evidence means evidence which, standing alone, maintains the proposition and warrants the conclusion to support which it is introduced.””). The record thus establishes that the developer met its prima facie burden as to compliance with municipal planning concerns.

Validity of Local Concerns Put Forth by the Board

Inasmuch as the developer’s initial hurdles were met, the burden shifts to the board to prove that there is a valid health, safety, environmental, design, open space, or other local concern which outweighs the regional housing need. Board of Appeals of Woburn v. Housing Appeals Comm., 451 Mass. 581 , 584 (2008) (“When a denial is reviewed by the committee, the local board of appeals has the burden of proving, first, that there is a valid local concern which supports such denial, and then, that such concern outweighs the regional housing need.”). The Committee found that the developer failed to establish such valid local concerns. (Decision, AR. 3188-90). The board argues that this conclusion is erroneous and alleges that it established two valid local concerns: municipal wetland concerns and municipal planning concerns.

Wetlands

Before the Committee, the board first argued that the property contains a locally regulated wetland known as a wet meadow. (Tr. III, AR. 525). The board presented testimony and exhibits from a soil and wetlands scientist, Arthur Allen III (Allen) and a wetlands specialist, Lisa McIntosh (McIntosh). (Ex. 82; Ex. 83). These two individuals testified that a wet meadow, a type of Isolated Vegetated Wetland (IVW) under Scituate’s Wetland Regulations (SWR), exists on the property within the central disputed area. (Tr. III, AR. 525). Herring Brook countered with testimony and exhibits from Roderick Gaskell (Gaskell), a wetlands expert who had observed the project site for over four years and concluded that the area did not contain any IVW under the Scituate Wetlands Regulation. (Ex. 74, AR. 1540-61).

The Wetland Protection Act (WPA / Act) is a statutory scheme designed to defend wetlands from “destructive intrusion usually associated with . . . development.” Southern New England Conference Association of Seventh-Day Adventists v. Burlington, 21 Mass. App. Ct. 701 , 706 (1986). The scheme allows municipalities to impose greater restrictions on wetlands that are “consistent with the act, but which permissibly imposes ‘more stringent controls’ than the minimum Statewide standards set by the Legislature.” DeGrace v. Conservation Commission Of Harwich, 31 Mass. App. Ct. 132 , 135 (1991). Consistent with the WPA, Scituate has enacted a wetlands protection bylaw that authorizes the Scituate Conservation Commission to adopt regulations. (Ex. 66, AR. 1286-87; Ex. 67, AR. 1288-1333).

Unlike the WPA, vegetated wetlands under Scituate’s Wetlands Regulations include areas that do not border on open bodies of water. (Ex. 67, AR. 1299). Under the SWR, vegetated wetlands are defined as freshwater areas that have a dominant wetland plant community with hydrology [Note 10] sufficient to support such a community. (Tr. III, AR. 570). Sufficient hydrology exists in an area if the soil is adequately saturated or inundated by water. (Tr. III, AR. 570). Thus, IVW exist in an area in which: (1) 50% or more of the vegetation community consists of wetlands indicator plants; and (2) saturated or inundated conditions exist. (Ex. 67, AR. 1299). The SWR requires that wetland indicator plant identification and the determination of saturated or inundated conditions be made in accordance with the standards set out in the WPA. (Ex. 67, AR. 1299 (“The ground and surface water regime and the vegetational community which occur in each type of freshwater wetland are specified in M.G.L. c. 131, s. 40.”) Further, under the SWR, “[a]reas containing a predominance of wetland indicator plants are presumed to indicate the presence of saturated or inundated conditions." (Ex. 67, AR. 1300).

The Committee first established that the disputed area contains a predominance of wetland indicator plants. (Ex. 82, AR. 16-17, ¶ 17; Ex. 83, AR. 1648, ¶ 15). In its decision, HAC concluded that under the SWR, this evidence established the initial presumption that the disputed area contains saturated or inundated conditions. However, HAC also found that under the SWR evidence put forward by Herring Brook successfully rebutted this presumption.

The developer submitted the ORAD issued in 2004 by the Scituate Conservation Commission under the Act and the SWR. [Note 11] (Ex. 22, AR. 566-68). The Order specifically sets out the following resource areas within the site: North River Scenic River Corridor, saltmarsh, riverfront area, land subject to coastal storm flowage, isolated land subject to flooding. (Ex. 22, AR. 566-68). The ORAD does not identify any IVW within the ILSF. (Ex. 22, AR. 566-68; Ex. 81, AR. 1609, ¶ 10 (c)). The finding by the Commission was independently reviewed by its own environmental consultant firm, the BSC Group. (Ex. 22, AR. 569-72; Ex. 83, AR. 1984, ¶ 15).

This court also agrees with HAC that even without the ORAD, the testimony of Mr. Gaskell provided ample evidence as to the non-existence of IVW. Gaskell testified that the disputed area does not constitute IVW due to the nature of the vegetation in the area, the lack of credible evidence of inundation for the statutory time period, and the lack of hydric soils.

Regarding the nature of the vegetation within the ILSF, Mr. Gaskell testified that the phragmites and purple loosestrifes are unreliable indicators of wetlands due to the site’s soil having been previously altered. (Ex. 86, AR. 1972-73, ¶ 13). Gaskell stated that “[b]ecause of the alterations, these plant species by themselves are unreliable indicators of wetlands.” Gaskell observed that “[p]hragmites is not a reliable indicator of wetland hydrology by itself because 1) it often grows within highly disturbed sites that may or may not be wetlands such as along railroad tracks, roadside ditches and piles of dredge spoils, wherever even slight depressions hold water, and 2) Phragmites rhizomes can reach down almost 2 meters (over 6 feet) below ground, their roots penetrating even deeper, allowing the plant to reach low-lying groundwater (i.e., ground water not associated with wetland hydrology).” (Ex. 86, AR. 1994, ¶ 31). This testimony was bolstered by the inclusion of research articles detailing the plants at issue. (Ex. 86, AR. 2014-16, ¶ 13).

Mr. Gaskell also testified that his soil analysis revealed insufficient saturated or inundated conditions within the disputed area. Under the SWR, ground and surface water conditions that occur in each type of freshwater wetland are specified in the Act. (Ex. 67, AR. 1299; Ex. 74, AR. 1557-58, ¶ 37). Under the WPA, freshwater wetlands are “areas where groundwater, flowing or standing surface water or ice provide a significant part of the supporting substrate for a plant community for at least five months of the year.” G.L. c. 131, s. 40. Additionally, a wet meadow is more specifically defined as an area “where ground water is at the surface for the significant part of the growing season and near the surface throughout the year . . . .” G.L. c. 131, s. 40. Based upon this standard and upon his soil conditions analysis at the site recorded on DEP data forms, Gaskell testified that ground water does not remain near the surface of the property at issue, for the required five months to qualify as IVW under the SWR. (Ex. 74, AR. 1557-58, ¶ 37; Ex. 86, AR. 1970-71, ¶ 10).

Finally, Gaskell testified that hydric [Note 12] soil indicators are useful for determining the presence of wetlands where, as in the instant matter, soil has been altered. (Ex. 86, AR. 1971, ¶ 10 (e)). Hydric soils are typically those that exhibit indicators of long-term saturation by water, and develop certain color features and patterns. (Tr. III, AR. 493). In this regard, Gaskell testified that he performed extensive field research by completing a series of soil probes below the layer of soil that had been altered by farming. (Ex. 74, AR. 1548-50, ¶ 18-22). “The soil probes revealed the absence of hydric soil conditions indicative of vegetated wetlands . . . .” (Ex. 74, AR. 1549, ¶ 19). Based on all these observations, Gaskell concluded with his opinion that “there are no IVW subject to jurisdiction under the SWR on the property.” (Ex. 74, AR. 1559, ¶ 39).

These items of evidence presented to Housing Appeals Committee adequately rebutted the SWR’s presumption that an “[a]rea containing a predominance of wetland indicator plants [is] presumed to indicate the presence of saturated or inundated conditions.” (Ex. 67). See also Massachusetts Guide to Evidence § 301 (d), Note (2012) (“In civil cases, presumptions ordinarily require a party against whom the presumption is directed to come forward with some evidence to rebut the presumption; they ordinarily impose a burden of production, not persuasion, on that party.”).

Once the developer rebutted the presumption of the presence of saturated or inundated conditions, the board could no longer rely solely on the existence of wetland indicator plants. See Massachusetts Guide to Evidence § 301 (d) (2012) (“If that party comes forward with evidence to rebut or meet the presumption, the presumption shall have no further force or effect. A presumption does not shift the burden of persuasion, which remains throughout the trial on the party on whom it was originally cast.”). The burden was thus on the board to prove saturated or inundated condition existed within the disputed area. See 760 CMR § 56.07 (2)(b)(2) (“In the case of denial, the Board shall have the burden of proving, first, that there is a valid health, safety, environmental, design, open space, or other Local Concern which supports such denial, and then, that such Local Concern outweighs the Housing Need.”); (Ex. 67, AR. 1299).

The board’s first witness, Mr. Allen, conducted observations of the site on two separate occasions, once in February 2009 and once May of 2009. (Ex. 83, AR. 1645-48, ¶ 6, 14). During the February visit, Allen observed evidence on the surface of seasonal flooding, stained leaves, and partially frozen inundated soil conditions. (Ex. 83, AR. 1648, ¶ 15). He also conducted soil analysis that primarily failed to find evidence of hydric soil within the disputed area. (Ex. 83, AR. 1648-1649, ¶ 16; Tr. III, AR. 516).

During his May visit, Allen conducted additional soil analysis to examine whether saturated or inundated conditions existed during the growing season. (Ex. 83, AR. 1650-5`, ¶ 19-20). In this regard, he testified that the common industry standard for determining the existence of wetlands hydrology is the presence of groundwater within twelve (12) inches of the surface for as little as 7 to 21 days during the growing season. (Ex. 83, AR. 1650, ¶ 19). Allen also testified that he examined National Weather Service records for Logan Airport and found that there had been not been a significant amount of precipitation in the area since May 7, 2009, eleven days prior to his visit. (Ex. 83, AR. 1650, ¶ 19).

To conduct the soil analysis, Allen dug seven bore holes to determine whether the presence of groundwater existed within twelve (12) inches of the surface. (Ex. 83, AR. 1650, ¶ 19). Out of the seven holes, he observed six fill with water to within twelve inches of the surface with an average depth to groundwater from the surface of 8.7 inches. (Ex. 83, AR. 1650, ¶ 19).Based upon the soil analysis and using his stated industry standard, Mr. Allen concluded that the soil conditions support a finding of inundated and saturated conditions that, along with wetland vegetation, support the existence of IVW. (Ex. 83, AR. 1650-1651, ¶ 19).

The board’s second witness, Ms. McIntosh, conducted observations on the site the same two days as did Mr. Allen. McIntosh offered no evidence of saturation or inundation and instead relied upon Allen’s findings. (Ex. 82, AR. 1614-20, ¶ 14-18). Additionally, she prepared and presented a plan overlaid on an aerial photo that approximated what she believed to be the IVW delineation based upon Allen’s findings, her on site observations, and different shades of vegetation depicted on the aerial photograph. (Ex. 82, AR. 1619-20, ¶ 18; Ex. 82C, AR. 1640; Tr. IV, AR. 692).

Predicated upon the evidence adduced from both parties, HAC found that the board failed to prove the existence of IVW. Critically, HAC found that, once the developer had rebutted the presumption of saturated or inundated conditions, the board failed to provide adequate proof of their existence. It is this court’s view that HAC’s determination was based upon substantial evidence and otherwise comported with the applicable legal standard.

The Committee concluded that Allen’s field test results, which established inundation over a period of 7 to 21 days, were credible. However, HAC did not find credible Allen’s assertion that the common industry standard for determining the existence of wetlands hydrology is as little as 7 to 21 days. Based upon the SWR, which incorporates the WPA definitions of vegetation and water conditions, HAC determined that Allen’s evidence failed to establish soil saturation or inundation for the five month statutory time period. (Ex. 67, AR. 1299). This conclusion by HAC is not erroneous as a matter of law, is entirely reasonable under the SWR, and is grounded on substantial evidence. See Zoning Bd. of Appeals of Canton v. Housing Appeals Comm., 76 Mass. App. Ct. 467 , 472 (2010) (“[W]here, as here, a decision rests in part on an agency's assessment of witnesses, we give "particular deference to credibility determinations and inferences drawn from the facts”).

At the same time, HAC had before it, much evidence provided by Gaskell which it deemed credible. See Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 375-76 (1973) (“In reviewing the committee's decisions, the court, . . . must decide whether there was substantial evidence to support those decisions, that is, such evidence as a reasonable mind might accept as adequate to support a conclusion.”). Based upon this evidence, the Committee found that due to the nature of the vegetation in the area, the lack of credible evidence of inundation for the statutory time period, and the absence of hydric soils, the disputed area does not constitute an Isolated Vegetated Wetland. The board thus failed to prove that the disputed area constituted a valid local concern. See Middleborough v. Housing Appeals Comm., 449 Mass. 514 , 524 (2007). (“[T]he burden of proving the invalidity of administrative action rests with the party challenging that action.”). For the reasons discussed supra, this court is satisfied that HAC’s determination as regards wetlands, was based upon substantial evidence and was not legally erroneous. See Zoning Bd. of Appeals of Canton v. Housing App. Comm., 76 Mass. App. Ct. 467 , 473 (2010) (“An agency decision will be upheld ‘unless it is based on an error of law, unsupported by substantial evidence, unwarranted by facts found on the record as submitted, arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.’”, quoting DSCI Corp. v. Department of Telecomms. & Energy, 449 Mass. 597 , 603 (2007)).

Long Term Planning Concerns

A second local concern raised by the board is the alleged inconsistency of the proposed development with the town’s articulated long term planning goals. Municipal and regional planning issues are valid local concerns. See 760 CMR 56.02. In evaluating this type of local concern, HAC considers: 1) a municipality's master plan, comprehensive plan, housing plan, housing production plan, or community development plan, and the regional policy plan; and 2) the results of the municipality's efforts to implement such plans. See 760 CMR 56.07 (3)(g). Through the adjudicatory process, HAC has developed a three prong test that effectively weighs these planning concerns against the need for regional housing. See Board of Appeals of Woburn v. Housing Appeals Comm., 451 Mass. 581 , 584 (2008) quoting Hastings v. Commissioner of Correction, 424 Mass. 46 , 49 (1997) (“‘It is a recognized principle of administrative law that an agency may adopt policies through adjudication as well as through rulemaking,’”); Finkelstein v. Board of Registration in Optometry, 370 Mass. 476 , 478 (1976) (“[A]n agency's interpretation of its own rule is entitled to great weight.”).

Under the standard adopted by Housing appeals Committee, a board must present sufficient evidence to establish that: (1) there is a bona fide plan; (2) the plan promotes affordable housing; and (3) the plan has been implemented in the area of the project. Only if these three elements are established by the board, will the master plan and its effectiveness be then weighed against the regional housing need. 28 Clay Street Middleborough, LLC v. Zoning Bd. of Appeals of Middleborough, No. 06-16, slip op. at 6 (HAC Sept. 28, 2009). A plan that has actually resulted in the construction of a substantial amount of affordable housing shall be given considerable weight in the balancing test. 760 CMR 56.07 (3)(g). (emphasis supplied)

However, the Committee determined that Scituate’s plan failed adequately to promote affordable housing. To support its contrary argument, the board cites a number of subsequent planning actions that the town has taken in recent years. (Plaintiff’s Motion for Judgment on the Pleadings and Memorandum in Support Thereof, pp.50-54). However, only municipal planning efforts in effect at the time of the developer’s application are relevant to this review. See G.L. c. 40B, § 23 (“The hearing by the housing appeals committee in the department of housing and community development shall be limited to the issue of whether . . . the decision of the board of appeals was reasonable and consistent with local needs . . . .”) (emphasis supplied); 760 CMR 56.07 (1)(b) (“In the case of the denial of a Comprehensive Permit, the issue shall be whether the decision of the Board was Consistent with Local Needs.”) (emphasis added). These subsequent actions were not therefore applicable to the Committee’s inquiry and are thus not relevant for this court’s review. See G.L. c. 40B, § 22.

The Committee found, in a conclusion that is not disputed, that the Town of Scituate 2004 Master Plan (Plan) was a bona fide plan. (Ex. 70, AR. 1338; Ex. 80, ¶ 8; Tr. I, 181). See Herring Brook Meadow, LLC’s Memorandum in Support of its Cross Motion for Judgment on the Pleadings, 25. However, as noted, the Committee also found, inter alia, that the plan did not promote affordable housing.

A valid master plan must contain a housing component that actually promotes affordable housing rather than merely references it as an objective. 28 Clay Street Middleborough, LLC v. Zoning Bd. of Appeals of Middleborough, No. 06-16, slip op. at 6 [MHACR (2009)] (HAC Sept. 28, 2009) (“[T]he housing component must actually promote affordable housing and not merely pay lip service to the idea.”). The Committee found that while the Plan recites important affordable housing goals, these general statements do not sufficiently promote such housing. There is substantial evidence in the record to support HAC’s conclusion. By way of example, while the Plan recommends the creation of twenty-two (22) subsidized housing units per year (Ex. 70, AR. 1382), from the time of the Plan’s adoption until the time of the developer’s application in 2006, the town fell far short of its stated goal. (Tr. I, AR. 108-11).

Further, while the Plan recommends concentrating dense residential development in the town’s business districts, the town has never performed an inventory of land suitable for the development of G.L. c. 40B housing in these areas. (Tr. I, AR. 120-122). Moreover, the developer presented evidence that during the past fifteen years, less than an average of two affordable housing units per year have been constructed within the town. (Ex. 85, AR. 1690, ¶ 26). Consequently, HAC’s conclusion that the Plan fails to promote affordable housing was based upon substantial evidence.

Consequently, under HAC’s three part test for evaluating municipal planning concerns, the board was unable to prove the existence of a local concern. Even accepting arguendo, that it were otherwise and that the board had succeeded in demonstrating the existence of legitimate local concerns, [Note 13] the board would still be obliged to show that such concerns trump need for affordable housing. The Committee concluded, reasonably so, that there had been no such showing that local concerns outweighed the need for affordable housing. Moreover, the Committee concluded as follows:

We find that the project would satisfy affordable housing goals [set forth in the Plan] by adding 15 affordable units. The project preserves the major portion of the site as open space by clustering the buildings toward Route 3A. The project uses established infrastructure and its own wastewater treatment facility…. Finally, the state and federal approvals of the project is not inconsistent with the Town’s Master Plan and certainly does not undermine the Plan.

Given HAC’s conclusion concerning the wetlands and local planning, findings which in the view of this court, were amply supported by substantial evidence on the administrative record, there could be no legitimate local concerns to be balanced against the need for affordable housing.

The Use of a Hearing Officer

The board also claims that HAC unlawfully delegated the four day evidentiary hearing to a nonmember hearing officer. While the board acknowledges agency regulations permit this, they nonetheless contend that such a delegation exceeds the HAC’s statutory authority. See 760 CMR § 56.06 (7)(e)(1) (“Hearing by Committee or Hearing Officer. The hearing shall be conducted before a member of the Committee, before a hearing officer appointed by the Chairman, or before the full Committee.”).

The statutes mandate that the HAC “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.” G.L. c. 23B, § 5A; see also G.L. c. 40B, § 22 “[An] applicant shall have the right to appeal to the housing appeals committee in the department of housing and community development for a review . . . . Such appeal shall be heard by the committee within twenty days after receipt of the applicant's statement.”). The Legislature has also required the director of the Department of Housing and Community Development to promulgate “regulations for the conduct of the + of the department, and such other regulations as may be required by law. G.L. c. 23B, 5A

Case law has established a two-part test for assessing the validity of an administrative regulation. Taylor v. Housing Appeals Comm., 451 Mass. 149 , 153 (2008). “First, we determine, using conventional tools of statutory interpretation, whether the Legislature has spoken with certainty on the topic in question, and if we conclude that the statute is unambiguous, we give effect to the Legislature's intent.” Goldberg v. Board of Health of Granby, 444 Mass. 627 , 632-633 (2005). Second, if the Legislature has left an ambiguity or a gap in the statute, this court must determine if the regulation can be reconciled with the governing statute. Taylor v. Housing Appeals Committee, 451 Mass. 149 , 154 (2008) (“[I]f there is ambiguity or a gap in the statute, we determine whether the agency's resolution of the pertinent issue may be reconciled with the governing legislation.”). The second step substantially defers to the administrative agency’s expertise and statutory interpretation. Goldberg v. Board of Health of Granby, 444 Mass. 627 , 632-633 (2005) (“The second stage of our analysis requires substantial deference to the expertise and statutory interpretation of the agency charged with primary responsibility for administering a statute.”).

The board contends that the statute’s language stating that the “committee shall hear all petitions for review” mandates that only a member of the Committee is allowed to hear a petition for review under G.L. c. s. 40B. Further, the board argues that “nothing in the HAC’s enabling statue or G.L. c. s. 40B authorizes [it] to entrust such proceedings to a hearing officer that is not a member of the HAC.” Plaintiff’s Motion for Judgment on the Pleadings and Memorandum in Support Thereof, 65. This court disagrees with the board’s interpretation of the statute.

The enabling statute explicitly grants the agency the authority to promulgate rules and regulations governing the conduct of hearings at the HAC. G.L. c.40B, s. 22. See 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 board can direct this court to no legitimate statutory provision that explicitly bars the agency’s regulation. See Goldberg v. Board of Health of Granby, 444 Mass. 627 , 632-633 (2005) (“The statutes do not prohibit the department from instituting specialized procedures . . . . The department has not sought to assert its authority beyond the subject matter delegated to it. Nor has the department attempted to take action that the statutory language bars.”); See also Zoning Bd. of Appeals of Brookline v. Housing Appeals Comm., 79 Mass. App. Ct. 1129 , No. 10-P-1468 (July 14, 2011) (unpublished memorandum and order issued pursuant to Appeals Court rule 1:28 and cited for its persuasive value) (“The board also claims that the HAC's decision was an error of law as it was based upon a hearing overseen by a nonmember hearing officer. We disagree. . . . [T]he statute requiring the HAC to hear appeals of decisions issued by the board does not prohibit this practice.”).

Because the Legislature has explicitly left a gap in the statue by delegating the task of establishing procedures for hearings to the HAC, the court must proceed to step two and consider whether its regulation may “reasonably be harmonized with the legislative mandate.” Meyer v. Town of Nantucket, 78 Mass. App. Ct. 385 , 390 (2010); Taylor v. Housing Appeals Committee, 451 Mass. 149 , 154 (2008) (“[I]f there is ambiguity or a gap in the statute, we determine whether the agency's resolution of the pertinent issue may be reconciled with the governing legislation.”).

At this second stage, “regulations are not to be declared void unless their provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate.” Berrios v. Department of Public Welfare, 411 Mass. 587 , 595-96 (1992). “[D]eference is especially appropriate where, as here, the statutes in question involve an explicit, broad grant of rule-making authority.” Goldberg v. Board of Health of Granby, 444 Mass. 627 , 632-633 (2005), citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984).

"By enacting G. L. c. 40B, ss. 20-23, the Legislature's intent was to “provide relief from exclusionary zoning practices which prevented the construction of badly needed low and moderate income housing." Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 353-354 (1973). The act establishes a streamlined comprehensive permitting procedure for construction of low or moderate income housing. Zoning Board of Appeals of Amesbury v. Housing Appeals Committee, 457 Mass. 748 , 761 (2010). “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 Bd. of Appeals of Andover, 447 Mass. 20 , 29 (2006).

This legislative mandate requires the Committee to adjudicate complex issues involving substantial volumes of evidentiary material. The regulation at issue allows the five member committee to delegate the task of conducting complicated evidentiary hearings to subordinate employees. This regulation is easily reconcilable with the legislative mandate. In this regard, it reasonably relates to the promotion of affordable housing by affording HAC greater flexibility and capacity in managing hearings, thereby “minimizing lengthy and expensive delays occasioned by court battles.” See Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 29 (2006). The regulation is valid and the board has failed to prove that it constitutes an unreasonable interpretation of the statute. Cf. Goldberg v. Board of Health of Granby, 444 Mass. 627 , 632-633 (2005) (“We conclude that the plaintiffs have not met their burden of showing that the department's regulations constitute an unreasonable interpretation of the statute.”).

Additionally, the regulation complies with other requirements of administrative law. The Supreme Judicial Court has indicated that an officer who hears evidence in a proceeding before an administrative agency is required to participate in the final decision when the credibility of witnesses is at issue. Cf. Salem v. Massachusetts Comm’n. Against Discrimination, 404 Mass. 170 , 175 (1989) (“Commissioner Cote could not evaluate the credibility of the witnesses without observing their demeanor when testifying.”). “[A]n individual or group other than the hearing officer can prepare findings provided either that “(a) the hearing officer participated in the board's deliberations in a meaningful manner, or (b) credibility or evidentiary weight determinations are inessential to the board's decision.” Fox v. Commissioner of Revenue, 51 Mass. App. Ct. 336 , 343 (2001) (citations omitted).

The Committee’s regulation comports with this mandate because “[i]n cases in which the presiding officer is not a member of the Committee, he or she shall participate in deliberations of the Committee, but shall not vote.” 760 CMR § 56.06 (7)(e)(2)(d). This court is satisfied, therefore, that the HAC regulation allowing a non-member to preside over evidentiary a hearing accords with the law of the Commonwealth. See also Zoning Bd. of Appeals of Brookline v. Housing Appeals Comm., 79 Mass. App. Ct. 1129 , No. 10-P-1468 (July 14, 2011) (unpublished memorandum and order issued pursuant to Appeals Court rule 1:28 and cited for its persuasive value) (“The board also claims that the HAC's decision was an error of law as it was based upon a hearing overseen by a nonmember hearing officer. We disagree. . . .”).

Counts Two and Three: Prayers for Declaratory Relief

Counts II and III of the complaint seek declaratory relief. Count II raises the aforementioned issue of local wetland delineation. Count III restates the allegation that HAC’s use of a “mere hearing officer” is beyond its statutory authority. In effect, Count II and III simply reassert those issues first broached in Count I. The board does not differentiate between judicial review and declaratory judgment in its brief for a judgment on the pleadings. Additionally, the Legislature has mandated that review of the Committee’s decision be conducted within the purview of G.L. c. 30A. Accordingly, for the reasons set forth supra, this court declares that the Housing Appeals Committee has not mischaracterized the nature and status of the local concerns and has not exceeded its statutory authority by promulgating regulations that allow for the assignment of a hearing officer to a case.

Conclusion

Given the evidence before the Housing Appeals Committee, the Committee's broad experience and expertise, and the deferential standard that is to be accorded such expertise, this court concludes that the Board has failed to meet its burden of demonstrating that the Committee’s decision was unsupported by substantial evidence. So too, it has failed to demonstrate that the Committee’s decision was arbitrary, capricious, or legally untenable. It is apparent from this record that the Committee’s decision is not only thoughtful and well reasoned, but fully consistent with the regulatory and statutory scheme, and predicated upon ample evidentiary support, as well.

Accordingly, it is

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

ORDERED that Defendant Herring Brook Meadow, LLC's Cross Motion for Judgment on the Pleadings be, and hereby is, ALLOWED.

Judgment to issue accordingly.

SO ORDERED.

By the Court. (Grossman, J.)


FOOTNOTES

[Note 1] See infra, page 24, paragraph 1.

[Note 2] The “Act.”

[Note 3] Id, pp. 205-206.

[Note 4] The board put forth additional arguments at the agency level but declined to reargue those in its motion for a judgment on the pleadings.

[Note 5] 760 CMR 56.05 (2) (“Elements of Submission, Filing Fees. The Applicant shall submit to the Board an application and a complete description of the proposed Project. Normally the items listed below will constitute a complete description. Failure to submit a particular item shall not necessarily invalidate an application. . . . (a) preliminary site development plans showing the locations and outlines of proposed buildings; the proposed locations, general dimensions and materials for streets, drives, parking areas, walks and paved areas; and proposed landscaping improvements and open areas within the site. . . .; (b) a report on existing site conditions and a summary of conditions in the surrounding areas, showing the location and nature of existing buildings, existing street elevations, traffic patterns and character of open areas . . . .; (c) preliminary, scaled, architectural drawings. For each building the drawings shall be prepared by a registered architect, and shall include typical floor plans, typical elevations, and sections, and shall identify construction type and exterior finishes; (d) a tabulation of proposed buildings by type, size (number of bedrooms, floor area) and ground coverage, and a summary showing the percentage of the tract to be occupied by buildings, by parking and other paved vehicular areas, and by open areas; (e) where a subdivision of land is involved, a preliminary subdivision plan; (f) a preliminary utilities plan showing the proposed location and types of sewage, drainage, and water facilities, including hydrants; (g) the Project Eligibility letter, showing that the Applicant fulfills the requirements of 760 CMR 56.04(1); (h) a list of requested Waivers.”).

[Note 6] Effective February 22, 2008, the Department of Housing and Community Development (DHCD) promulgated a revised regulation, 760 CMR 56.00, which, by its terms supersedes 760 CMR 30.00 and 31.00 in most respects. However, the former regulation, 760 CMR 31.01(1), continues to apply to the project eligibility requirements in this case. See 760 CMR § 56.08 (3)(c).

[Note 7] (Ex. 57, AR. 1136).

[Note 8] 760 CMR 56.07 (3)(b) (“Balancing: If a municipality attempts to rebut the presumption, . . . that there is a substantial Housing Need which outweighs Local Concerns: 1. the weight of the Housing Need will be commensurate with the regional need for Low or Moderate Income Housing, considered with the proportion of the municipality's population that consists of Low Income Persons; 2. the weight of the Local Concern will be commensurate with the degree to which the health and safety of occupants or municipal residents is imperiled, the degree to which the natural environment is endangered, the degree to which the design of the site and the proposed housing is seriously deficient, the degree to which additional Open Spaces are critically needed in the municipality, and the degree to which the Local Requirements and Regulations bear a direct and substantial relationship to the protection of such Local Concerns; and 3. a stronger showing shall be required on the Local Concern side of the balance where the Housing Need is relatively great than where the Housing Need is not as great.”).

[Note 9] Which shall be limited, in the case of a pre-hearing order, to contested issues identified in 760 CMR 56.06(7)(d)(3)(a)-(g).

[Note 10] The American Heritage College Dictionary, 680 (Fourth Ed. 2002) (defining hydrology as “[t]he scientific study of the properties, distribution, and effects of water on the earth’s surface, in the soil, and underlying rock, and in the atmosphere.”).

[Note 11] For the reasons explained supra, this certificate is neither invalid nor irrelevant.

[Note 12] The American Heritage College Dictionary, 679 (Fourth Ed. 2002) (defining hydric as “[r]elating to, characterized by, or requiring considerable moisture.”).

[Note 13] I.e. those related to wetlands and planning.