WOBURN ZONING BOARD OF APPEALS v. HOUSING APPEALS COMMITTEE of the DEPARTMENT of HOUSING and COMMUNITY DEVELOPMENT; CIRSAN REALTY TRUST, and WOBURN 38 DEVELOPMENT, LLC.

This is an appeal pursuant to G. L. c. 40B, §22, of a decision of the defendant Housing Appeals Committee of the Department of Housing and Community Development (“HAC”) overturning a denial by the plaintiff Woburn Zoning Board of Appeals (the “Board”) of an application by defendant Woburn 38 Development, LLC (“Developer”) for a change in an approved comprehensive permit previously issued for an affordable housing development to be constructed at 1042 Main Street in Woburn. The project, as proposed to be modified, would consist of 168 dwelling units in four buildings on a nine-acre site. The HAC ruled in its “Decision on Project Change” that the proposed change would make the project significantly less uneconomic than the originally approved project, that the modified project was consistent with local needs, and ordered the Board to grant the changes to the previously approved comprehensive permit.

The Board’s appeal of the HAC’s decision overturning the Board’s denial of the requested change in the project was filed in Suffolk County Superior Court, C.A. No. SUCV2015-01544, pursuant to G. L. c. 40B, §22. Upon the request of the Developer, by an order of the Chief Justice of the Trial Court dated July 20, 2015, the case was transferred to the Land Court’s Permit Session, pursuant to G. L. c. 185, §3A, which gives the Land Court concurrent jurisdiction with the Superior Court over, among other actions, appeals under the comprehensive permit law, G. L. c. 40B.

Because this case seeks judicial review of administrative agency proceedings based on an administrative record pursuant to the standards set forth in G. L. c. 30A, §14, the procedures set forth in Land Court Standing Order 2-06 govern. Accordingly, the HAC filed the Administrative Record (“A.R.”) of its proceedings, in six volumes, consisting of the transcript of the hearings before the HAC, pleadings, exhibits, and other documents filed by the parties or considered by the HAC. The Board filed a motion for judgment on the pleadings with a supporting memorandum and an appendix. The HAC and the Developer filed oppositions to the Board’s motion, and each filed cross-motions for judgment on the pleadings, along with supporting memoranda and appendices. The Board filed a reply to the HAC’s and the Developer’s cross- motions. A hearing was held on the motion and cross-motions for judgment on the pleadings on February 11, 2016, after which the court took the matter under advisement.

For the reasons set forth below, the Board’s motion for judgment on the pleadings is DENIED, the Developer’s and the HAC’s cross-motions for judgment on the pleadings are ALLOWED, and judgment will enter affirming the Decision on Project Change of the Housing Appeals Committee.

FACTS

Accepting, for the purposes of these Mass. R. Civ. P. 12(c) motions for judgment on the pleadings, the well-pleaded facts in the Complaint, along with the documents referred to in the Complaint, and the facts shown in the Administrative Record filed by the Board, the court finds the following facts:

Prior Administrative Proceedings

1. The present Developer’s predecessor-in-title, Cirsan Realty Trust (“Cirsan”), applied in 2000 to the Board for approval of a comprehensive permit pursuant to G. L. c. 40B, §§20-23. Cirsan proposed to build a mixed-income affordable rental development on a nine-acre site at 1042 Main Street in Woburn (the “Property”). The project was to include 168 dwelling units in one six-story building, with an underground garage. The Property is primarily in a two-family zoning district and partially in a one-family zoning district.

2. The Board denied Cirsan’s application for a comprehensive permit in a decision dated October 4, 2001. Cirsan appealed to the HAC and the HAC overturned the Board’s denial in a decision dated June 11, 2003. The Board appealed the HAC’s 2003 decision to Superior Court, which upheld the HAC, and thereafter to the Appeals Court, which affirmed the Superior Court decision on May 31, 2006.

3. Following the granting of an extension of the comprehensive permit by the Board, the present Developer purchased the Property and Cirsan’s rights in the comprehensive permit on February 25, 2011. Subsequently, the Board denied a further extension of the comprehensive permit, but was reversed by the HAC. The Board granted a further extension on January 19, 2012.

4. On February 6, 2012, the Developer filed a request to modify the approved comprehensive permit. The Board found, without objection, that the proposed modification was substantial, and conducted seven hearings on the proposed modification.

5. The Board issued a decision denying the proposed modification on October 19, 2012, which the Developer appealed to the HAC.

6. In accordance with HAC procedures, on November 22, 2013 the parties submitted a Pre- Hearing Order that the HAC adopted on January 7, 2014. In accordance with the Pre- Hearing Order, the parties provided pre-filed direct testimony by affidavit of fact and expert witnesses.

7. The HAC conducted an evidentiary hearing over two days in November, 2014 and on April 23, 2015 issued a decision entitled, “Decision on Project Change.” In its decision, the HAC ruled that the decision of the Board denying the proposed modification was not consistent with local needs, ordered that the decision of the Board be vacated, and directed the Board to permit the change in the comprehensive permit as proposed by the Developer, subject to certain conditions.

8. One of the conditions imposed by the HAC (Condition No. 5(b)) provided that, “All construction shall comply with all Massachusetts and federal regulations and requirements concerning noise and vibration, and with similar local requirements, that is, Woburn Municipal Code, § 9-2. Local officials and residents may take whatever actions are normally taken to ensure enforcement of such requirements.”

9. The present appeal followed. [Note 1]

The Project

10. The original application for a comprehensive permit, as denied by the Board and as later approved by the HAC and upheld by the Superior Court and the Appeals Court, called for construction of a single, six-story building with 168 dwelling units and two stories of underground parking on the nine-acre Property.

11. The proposed modified project that was approved by the HAC in its April 23, 2015 Decision on Project Change, calls for the construction of the same number of dwelling units (168), but in four three-story buildings, plus a one-story community building, occupying a larger portion of the Property than would have been occupied by the project as originally approved.

12. The Property is on a steep hilltop, well above the elevation of the street from which it will be accessed, with much ledge and rock that must be removed for the creation of a winding access road from Main Street to the building locations, and for the excavation of foundations, stormwater structures, and utility trenches. Construction of the buildings as proposed in the modified project will require removal of approximately fifty feet of the elevation of the present undeveloped hill, from an elevation of approximately 130 feet above Main Street to approximately 80 feet above Main Street.

13. Site preparation under either the original or the modified project will require significant blasting for removal of ledge, and will require thousands of truck trips for removal of the debris. The number of truck trips for removal of debris will depend on whether the ledge removed from the site is processed, i.e., crushed, on site or elsewhere. In either case, the number of truck trips required for ledge removal and the number of days required for blasting and site work, will be roughly double for the modified four-building project what it would have been for the project as originally approved.

14. As found by the HAC, if the ledge and other removed material is processed on-site, the number of days of blasting and ledge removal would be approximately 122 days for the project as originally approved, as opposed to approximately 233 days for the project as modified. If the material is not processed on-site, the number of days for blasting and ledge removal for the project as originally approved would be approximately 155 days, as opposed to approximately 276 days for the project as modified.

15. Notwithstanding the difference in the number of days required for blasting, other site work, and ledge removal between the original project and the project as modified, the level of noise generated by these operations on any given day will be no different for the modified project than it would have been for the project as originally approved.

DISCUSSION

1. REVIEW UNDER CHAPTER 40B.

This action is an appeal from a decision of the HAC overturning the Board’s denial of a modification of a comprehensive permit. The HAC is charged with the resolution of certain disputes arising under G. L. c. 40B, §§20-23 (“Chapter 40B”), the comprehensive permit law. The core purpose of Chapter 40B is to “streamline the process for obtaining the necessary authorization to build much needed low and moderate income housing.” Zoning Bd. of Appeals of Amesbury v. Hous. Appeals Comm., 457 Mass. 748 , 759 (2010). Chapter 40B provides a vehicle for “overriding local zoning restrictions,” but not State regulations, so as to prevent “cities’ and towns’ . . . use of their zoning powers to exclude” affordable housing. Taylor v. Lexington, 451 Mass. 270 , 278 (2008), citing Bd. of Appeals of Hanover v. Hous. Appeals Comm., 363 Mass. 339 , 347 (1973); Dennis Hous. Corp. v. Zoning Bd. of Appeals of Dennis, 439 Mass. 71 , 76 (2003). A developer seeking to build affordable housing may apply to the local board of appeals for a Chapter 40B comprehensive permit instead of obtaining separate approval “from each local board having jurisdiction over the project.” Zoning Bd. of Appeals of Wellesley v. Ardemore Apartments Ltd. Partnership, 436 Mass. 811 , 815 (2002). The board of appeals is empowered to either grant the application, with or without conditions, or deny it. G. L. c. 40B, §21. If the board of appeals denies a permit application, as here, the applicant may appeal the decision to the HAC. G. L. c. 40B, §22.

Before the HAC, when a change to a previously issued comprehensive permit has been denied, the burden is initially upon the applicant/developer to prove not only that the denial makes the proposed project uneconomic, but also that the original project is significantly more uneconomic than the developer’s current proposal. G. L. c. 40B, §§22-23; Bd. of Appeals of Hanover v. Hous. Appeals Comm., 17 LCR 243 , 245 (2009). It is only after the developer meets this standard that the burden shifts to the board of appeals to show that there is an overriding local concern that exceeds the regional need for affordable housing. Id. at 245. If the HAC finds that the decision denying the changes to the comprehensive permit was unreasonable, made the project uneconomic, and was not consistent with local needs, an order shall issue directing the board of appeals to approve the applicant’s permit. Id. at 246.

The hearing before the HAC is de novo. The HAC has the authority to override the board of appeals and may issue the comprehensive permit itself if it finds that the decision of the board of appeals was unreasonable and inconsistent with local needs. G. L. c. 40B, §§22-23; Bd. of Appeals of Hanover, supra, 363 Mass. at 371. Section 23 of Chapter 40B recites the level of review the HAC gives the decision of the board of appeals:

The hearing by the [HAC] shall be 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 and, in the case of an approval of an application with conditions . . . imposed . . . whether such conditions . . . make the construction or operation of such housing uneconomic and whether they are consistent with local needs. . . . If [HAC] finds, in [such a] case . . . that the decision of the board makes the building or operation of such housing uneconomic and is not consistent with local needs, it shall order such board to modify or remove any such condition . . . so as to make the proposal no longer uneconomic . . . Decisions or conditions . . . imposed by a board of appeals that are consistent with local needs shall not be vacated, modified or removed . . . notwithstanding that such decisions or conditions . . . have the effect of making the applicant’s proposal uneconomic.

Decisions or conditions imposed by the board of appeals are considered consistent with local needs if they are “reasonable in view of the regional need for low and moderate income housing considered with the number of low income persons in the city or town affected and the need to protect the health or safety of the occupants of the proposed housing or of the residents of the city or town, to promote better site and building design in relation to the surroundings, or to preserve open spaces.” G. L. c. 40B, §20. There is a rebuttable presumption that where the town’s existing stock of low and moderate income housing is less than ten percent, the need for regional affordable housing outweighs local concerns. Zoning Bd. of Appeals of Canton v. Hous. Appeals Comm., 76 Mass. App. Ct. 467 , 469-470 (2010). However, even where a town has failed to satisfy the statutory minimum of low or moderate income housing, the HAC may still uphold the denial of a comprehensive permit if it finds the community’s need for such housing is “outweighed by valid planning objections to the proposal based on considerations such as health, site, design, and the need to preserve open space.” Town of Hingham v. Dep’t of Hous. & Community Dev., 451 Mass. 501 , 504, n. 6 (2008), quoting Zoning Bd. of Appeals of Greenfield v. Hous. Appeals Comm., 15 Mass. App. Ct. 553 , 557 (1983)

Section 22 of Chapter 40B provides that HAC decisions may be reviewed in accordance with the provisions of G. L. c. 30A, §14. This form of judicial review has a limited scope and is confined to the administrative record. Zoning Bd. of Appeals of Holliston v. Hous. Appeals Comm., 80 Mass. App. Ct. 406 , 414 (2011). In reviewing such decisions, courts apply a substantial evidence standard of review of the administrative record “in light of the heavy burden borne by a local board that denies a comprehensive permit application” to prove “a specific health or safety concern of sufficient gravity to outweigh the regional housing need.” Zoning Bd. of Appeals of Canton, supra, 76 Mass. App. Ct. at 473. The HAC decision must be upheld if found to be supported by substantial evidence. Zoning Bd. of Appeals of Holliston, supra, 80 Mass. App. Ct. at 415-416. “[T]he scope of review of an administrative decision pursuant to G. L. c. 30A, §14, leaves little room for appellate discretion. . . the agency’s decision must be upheld if supported by ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’” Town of Middleborough v. Hous. Appeals Comm., 449 Mass. 514 , 524 (2007), quoting Bd. of Appeals of Hanover, supra, 363 Mass. at 376. “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.” Zoning Bd. of Appeals of Lunenberg v. Hous. Appeals Comm., 464 Mass. 38 , 43 (2013), quoting G. L. c. 30A, § 14(7). “A reviewing court ‘must apply all rational presumptions in favor of the validity of the administrative action and not declare it void unless its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate.’” Town of Middleborough, supra, 449 Mass. at 524, citing Zoning Bd. of Appeals of Wellesley v. Hous. Appeals Comm., 385 Mass. 651 , 654 (1982). “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.” Id. at 529.

However, the reviewing court must not confuse “judicial deference and restraint [with] abdication.” Nat’l Amusements, Inc. v. City of Boston, 29 Mass. App. Ct. 305 , 310 (1990). The HAC’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.’” Rogers v. Conservation Comm’n of Barnstable, 67 Mass. App. Ct. 200 , 205 (2006), quoting New Boston Garden Corp. v. Assessors of Boston, supra, 383 Mass. 456 , 466 (1981); Bd. of Appeals of Canton, supra, 76 Mass. App. Ct. at 473 (stating an agency decision will not be upheld if 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. Dep’t of Telecomm. & Energy, 449 Mass. 597 , 603 (2007).

In evaluating the instant decision, this court must examine the HAC’s decision “‘upon consideration of the entire record’ and determine whether there was ‘substantial evidence’” to support it. Bd. of Appeals of Canton, supra, 76 Mass. App. Ct. at 472, quoting Bd. of Appeals of Hanover, supra, 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 HAC decision is not supported by substantial evidence. Town of Middleborough, supra, 449 Mass. at 524.

Acknowledging the limited nature of the Court’s review in this action, the Board ascribes three legal errors to the decision of the HAC, each of which, the Board maintains, is sufficient to annul the HAC’s decision. First, the Board argues that the HAC incorrectly concluded that the developer met its burden of proving that the project, as modified, was significantly less uneconomic than the project as originally approved. Second, the Board argues that the HAC incorrectly ruled that the developer did not have to meet its burden as set out in the Pre-Hearing Order, of making a prima facie showing that the project, as proposed to be modified, will comply with state and federal regulations relating to noise associated with blasting during construction. Third, the Board argues that the HAC incorrectly ruled that compliance of the project with federal and state regulations was not a matter properly before the Board pursuant to Chapter 40B. Each of these arguments is considered below.

2. THE BOARD DID NOT ERR IN FINDING THE MODIFIED PROJECT TO BE SIGNIFICANTLY LESS UNECONOMIC THAN THE PROJECT AS ORIGINALLY APPROVED.

The standard of review for an appeal to the HAC of a denial by the Board of an application to make a substantial change to a project already approved is not one that is directly addressed in Chapter 40B. Section 23 of Chapter 40B provides that the hearing before the HAC, “shall be 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 and, in the case of an approval of an application with conditions and requirements imposed, whether such conditions and requirements make the construction or operation of such housing uneconomic and whether they are consistent with local needs.” In the case of a denial by a board of appeals of a request for a substantial change in an already-approved project, the HAC’s task is to determine whether the project as originally approved is significantly more uneconomic than the project as proposed to be modified. Avalon Cohasset, Inc. v. Cohasset Zoning Bd. of Appeals, HAC No. 05-09, at 13 (2007).

The parties agree that the HAC appropriately used the “Return on Total Cost” (“ROTC”) method in determining the economics of the project as originally approved and as proposed to be modified. See MHP Guidelines, A.R., Vol. III, p. 19. The ROTC is the projected net operating income of the project in its first year of operation divided by total development costs. Id. Where the parties differ is in the determination of the components of the ROTC. In support of its argument that the HAC erred in finding the modified project to be significantly less uneconomic than the project as originally approved, the Board points to the date from which the HAC determined the projected project costs and income, the inclusion of a “developer’s fee” as an element of the costs of the project, and the HAC’s acceptance of the Developer’s expert testimony on project costs. The Board also contests the HAC’s use of the same date to measure the yield on 10-year U.S. Treasury notes, which provided the basis for the “uneconomic” determination.

a. Time of the Hearing.

Here again, the parties agree that it was appropriate for the HAC to determine whether the project was consistent with local needs, including the determination as to the project’s economics, “as of the time of the hearing.” Bay Watch Realty Trust v. Bd. of Appeals of Marion, HAC No. 02-28, at 21 (2005); Avalon Cohassett, Inc., supra, HAC No. 05-09, at 17-18. However, the parties differ as to the meaning of “time of the hearing,” with the Board arguing that economic costs and income should be projected as of the date of the commencement of the hearing, and the Developer arguing that the Board correctly used a date agreed upon in the Pre- Hearing Order—November 22, 2013. In its decision, the HAC ruled that the date for measurement of the economics of the project is “the date the Pre-Hearing Order is signed, or another date, if agreed to by the parties.” Decision on Project Change, p. 6, A.R. Vol. VI, p. 2605. The parties agreed by joint motion, allowed by the HAC, that “the date for determining Reasonable Return also be moved to November 22, 2013.” Joint Motion to Extend Date for Pre- Hearing Order, A.R., Vol. VI, p. 2554. Given that the hearing process takes place over an extended period, in excess of a year, it is reasonable and desirable that the economics of the project be determined as of a single date that allows the parties to prepare for a hearing that will allow for an “apples to apples” comparison of the projections by both sides. Since the hearing before the HAC is de novo, it is also sensible that the date is one that is relatively close to the time that the HAC actually hears the testimony. Although the hearing technically commences with the conference of counsel soon after the filing of the appeal, 760 CMR 56.07(7)(d)(1), the actual taking of testimony typically occurs, as it did in this case, many months later. That the technical commencement of the hearing with the conference of counsel is not really part of the evidentiary process is acknowledged by the fact that the “Pre-Hearing Order,” agreed to by the parties and issued by the HAC, was issued more than a year after the “commencement” of the hearing. The use of a date determined in the Pre-Hearing Order, and one that was in fact agreed to by the Board and the Developer, was neither arbitrary nor unreasonable, and it was consistent with the Board’s prior practice and its statutory obligations.

b. Inclusion of Developer’s Fee as an Element of Costs.

The Board acknowledges, as it must, that a developer’s fee is properly included as an element of costs, and not as part of the developer’s profit, in calculating the relative “uneconomics” of the project as originally approved and as proposed to be modified. The Board nevertheless contends that the developer’s fee cannot be included as an element of costs if it is “waived” in the developer’s pro forma financials for the project.

The MHP Guidelines counsel including a developer’s fee as an element of costs, and not as profit. “Developer overhead and fees are necessary project expenses that should not be considered as a component of developer profit. Accordingly, an 8 percent allowance for developer fees and overhead should be included in the pro forma for purposes of estimating rates of return and estimating whether a project is uneconomic.” A.R., Vol. III, p. 526. In addressing the Board’s argument that the developer’s fee cannot be included as a cost if it is waived in the pro forma, the Developer’s real estate expert testified that it is standard in the construction industry to waive such fees at the inception of a project and to treat the waived fee as a contribution of equity by the developer, leaving open the possibility of collecting the fee later if the cash flow of the completed project allows for the payment of the fee. Rebuttal Testimony of Edward J. Marchant, A.R., Vol. IV, pp. 1397-1398. It cannot be known with certainty at the time the pro forma is created, or for that matter, at the time of the hearing, whether any of the costs listed in the pro forma actually will be incurred in the amounts they are projected. A pro forma is, after all, just a projection of costs based on reasonable assumptions. Whether the developer’s fee will be incurred to the full amount projected is no less a projection than is a projection that excavation will cost a certain amount or that rents will generate a certain amount of income. The HAC properly exercised its discretion in accepting the testimony of the Developer’s expert that the developer’s fees may be incurred in the future and that it is standard in the industry in any event to treat waived fees as a contribution to equity. Decision on Project Change, p. 6, A.R., Vol. VI, p. 2611; see Town of Middleborough, supra, 449 Mass. at 529.

c. Acceptance of Developer’s Expert’s Testimony on Project Costs.

Additionally, the Board finds fault with the Developer’s construction cost expert updating the change in construction costs to November 22, 2013 from an earlier pro forma by getting revised prices from subcontractors, as opposed to the method used by the Board’s expert, which was to multiply the costs on the earlier pro forma by an inflation factor. The HAC, in assessing the testimony of the Developer’s expert and that of the Board’s expert, was in a position to assess their relative credibility, as they were subjected to cross-examination with respect to their justifications for the use of their respective methods, and the Developer’s expert, in particular, was subject to cross-examination on his efforts to obtain accurate and realistic revised prices for construction cost items. It was within the HAC’s discretion to credit the Developer’s expert’s testimony on his efforts to obtain updated prices and to accept the testimony of the Developer’s expert over that of the Board’s expert. Where, as here, the determination is one of the credibility of witnesses and there is no question that there is substantial evidence to support an administrative agency’s decision, a reviewing court may not substitute its determination of credibility for that of the administrative agency. The court “must indulge all rational presumptions in favor of the validity of the HAC's determinations, including its choice between two fairly conflicting views, giving due weight to its experience, technical competence, and specialized knowledge.” Zoning Bd. of Appeals of Holliston, supra, 80 Mass. App. Ct. at 415.

3. THE HAC DID NOT ERR IN THE ALLOCATION OF THE BURDEN OF PROOF TO PRESENT A PRIMA FACIE CASE WITH RESPECT TO COMPLIANCE WITH STATE AND FEDERAL REGULATIONS.

The Board argues that the HAC erred in failing to require the Developer to meet its burden of making out a prima facie case that the project, as proposed to be modified, would comply with federal and state regulations relating to noise, dust, and vibrations generated by blasting during construction. The Board points to the Pre-Hearing Order, which specifically imposes such a burden on the Developer. Pre-Hearing Order, p. 8, A.R., Vol. VI, p. 2563. The Pre-Hearing Order also imposed a related burden on the Developer to present a prima facie case that “the Board’s stated reasons of denial of the proposed modification relate to matters outside the scope of the proposed modification, pursuant to 760 CMR 56.05(11)(c).” Pre-Hearing Order, p. 9, A.R., Vol. VI, p. 2564. That regulation provides in relevant part: “Only the changes in the Project or aspects of the Project affected thereby shall be at issue in such hearing.” In its decision, the HAC ruled that the Developer does not bear such a burden, and that the statement to the contrary in the Pre-Hearing Order “misstates, or at least obfuscates, the burdens of proof in this case.” Decision on Project Change, pp. 4, fn. 4, 15, A.R., VI, pp. 2603, 2614.

The Board can point to no law or regulation requiring the imposition of a burden of proof on the applicant to show compliance with federal or state regulations in the case of the denial of a proposed modification of an already-approved project. The regulations do not explicitly provide for the burden of proof in such a situation, and to the extent that the regulations describe a burden of proof in “denial” cases, the regulations appear to make the allocation of the burden on the applicant permissive. The applicable regulation tellingly requires the allocation of an initial burden on the applicant to prove that it has met project eligibility requirements. 760 CMR 56.07(2)(a)(1) (“The Applicant shall have the burden…”) (emphasis added). In the very next paragraph, the regulations on the issue of compliance with state or federal regulations indicate that the allocation of the burden will be permissive and of a limited nature. 760 CMR 56.07(2)(a)(2) (“In the case of a denial, the Applicant may establish a prima facie case by proving, with respect to only those aspects of the Project which are in dispute (which shall be limited), in the case of a Pre-hearing Order, to contested issues identified in the pre-hearing order, that its proposal complies with federal or state statutes or regulations.”) (emphasis added). Thus, the HAC correctly ruled that as a matter of law, the Developer did not have a burden to establish a prima facie case that the project will comply with federal and state regulations relating to noise, dust, and vibration.

However, by including the burden with respect to noise (neither side in this dispute appears to pursue arguments with respect to dust and vibration) the HAC’s Pre-Hearing Order, whether mistakenly or not, did purport to impose a burden of proof on the Developer to show that its proposal complies with federal or state law pursuant to 760 CMR 56.07(2)(a)(2). To the extent the HAC failed to address in its decision whether the Developer met this initial burden, such a failure was harmless error, because the record discloses that the Developer unquestionably met this burden by demonstrating that the noise levels generated by the modified project would be no greater than the noise levels generated by the originally approved project. The Developer presented evidence with respect to noise levels and the HAC made the factual finding that, “the operations and the noise generated by rock removal for the modified development are no different from those for the development already approved—although construction will continue for twice as long.” Decision on Project Change, p. 15, A.R., 2614. This was a finding that, in effect, the Developer had not only met its burden pursuant to 760 CMR 56.05(11)(c) to show that the denial related to matters outside the scope of the proposed modification (because there would be no increase in the level of noise), but also that the modified project would not violate applicable state and federal regulations. There is no question that there was sufficient factual support in the record for the HAC to make this finding. See, e.g., Pre-Filed Testimony of Marc C. Wallace, QEP, A.R. Vol. III, p. 1021; Rebuttal Testimony of John M. O’Connor, A.R. Vol. IV, p. 1464.

4. THE BOARD DID NOT ERR IN CONCLUDING THAT IT HAD NO JURISDICTION TO ENFORCE STATE AND FEDERAL LAWS AND REGULATIONS.

In response to the Board’s insistence that the Developer show that the construction operations for the modified project would comply with state and federal regulations regarding noise, dust, and vibration, the HAC ruled that it had no authority to override non-local regulations, and therefore had no jurisdiction to adjudicate whether the project would comply with such state and federal regulations. Consequently, the HAC noted, in a passage that could almost be considered more of an observation or statement of the existing law than a condition of its decision that “the developer must simply comply with all state and federal requirements. Construction of the development will not go forward unless it is in compliance with those requirements.” Decision on Project Change, p. 16, A.R., 2615. The HAC goes on to note that local officials may inspect the construction site and make appropriate referrals to state and federal officials. Id. The HAC’s observation (or condition) in its decision was an accurate statement of the law, and it accurately concluded that it did not have jurisdiction to usurp the jurisdiction of state and federal agencies that are empowered to enforce state and federal laws and regulations.

There is no showing that there are any local regulations with respect to noise, dust, or vibration that are any more stringent than the existing state and federal regulations. Therefore, the HAC’s decision in this respect is in accordance with its authority under Chapter 40B. “It has long been held that it is unreasonable for a board to withhold approval of an application for a comprehensive permit when it could condition approval on the tendering of a suitable plan that would comply with State standards.” Zoning Bd. of Appeals of Holliston, supra, 80 Mass. App. Ct. at 416. “[T]he comprehensive permit scheme was designed to override local ordinances, bylaws, and regulations that impeded the development of affordable housing, not Statewide requirements set by the Legislature and State agencies.” Dennis Hous. Corp., supra, 439 Mass. at 80. “[T]he power of the board derives from, and is generally no greater than, that collectively possessed by [other local boards and agencies of the municipality enforcing municipal building regulations and bylaws].” Zoning Bd. of Appeals of Amesbury, supra, 457 Mass. at 756.

In Holliston, the Appeals Court upheld a Land Court determination that the HAC properly ruled that it could not adjudicate compliance of a project with state wetlands and environmental laws because they “were not regulated under the town’s zoning by-law and, therefore, were not properly before the HAC.” Zoning Bd. of Appeals of Holliston, supra, 80 Mass. App. Ct. at 410. The Board attempts to distinguish Holliston because the environmental compliance of the project in Holliston would be reviewable pre-construction by the appropriate state authorities, whereas the modified project at issue here would only be subject to review for compliance with noise regulations during construction. This is a distinction, however, without any legal significance. In either circumstance, the HAC lacks jurisdiction to oversee or override state or federal regulations, but the proper authorities still have an opportunity to enforce those regulations should the need arise. Thus, it was appropriate for the HAC to simply note in its decision that the developer would be required to comply with state and federal regulations relating to noise, dust, and vibration, without requiring the developer to prove that it would do so in advance.

CONCLUSION

For the foregoing reasons, the plaintiff’s motion for judgment on the pleadings is DENIED, and the defendants’ cross-motions for judgment on the pleadings are ALLOWED.

Judgment will enter accordingly.