Appeals Court: Brookline v. MassDevelopment

This Monday, September 14, at the Massachusetts Court of Appeals, Brookline presented arguments contesting a state-issued “project eligibility letter” for a proposed Chapter 40B housing development at Hancock Village. The case had begun at superior court in November, 2013. It was on appeal from an adverse ruling issued in September, 2014, allowing motions for summary judgment.

Twenty judges now serve on the Appeals Court. The panel for case number 2014-P-1817 consisted of Elspeth B. Cypher, appointed in 2000, Mark V. Green, appointed in 2001, and Sydney Hanlon, appointed in 2009. The case and court hearing attracted considerable interest, with five amicus briefs filed. Half a dozen Brookline town meeting members came to the hearing, held at the 1893 John Adams Courthouse in Boston on a sunny, mild day.

Town Counsel Joslin Murphy argued for the Town of Brookline. Benjamin Tymann argued for the Massachusetts Development Finance Agency (MDFA) and its chief, Martha “Marty” Jones of Winchester. Jason Talerman argued for other plaintiffs, several homeowners whose properties abut Hancock Village. Kevin O’Flaherty argued for the subsidiary of Chestnut Hill Realty (CHR), owner of Hancock Village, that applied for the 40B development.

Issues and arguments: Issues that were argued Monday emerged in briefs submitted early this year. With the procedure the Appeals Court follows, each lawyer got seven or eight minutes of presentation plus questions and answers–a brisk pace. The underlying contested issues were well known:
(1) Whether MDFA followed regulations when issuing a “project eligibility letter,” and
(2) Whether a 1946 agreement with the Town of Brookline still regulates Hancock Village.

Ms. Murphy and Mr. Tymann argued about the “project eligibility letter.” Mr. Talerman and Mr. O’Flaherty argued about the 1946 agreement. The basic issue about whether MDFA followed regulations for a “project eligibility letter” had been confounded by MDFA and CHR lawyers at superior court, contending that Brookline had not exhausted administrative remedies, citing a 2007 case. That side-issue dominated the Appeals discussions. [Town of Marion v. Massachusetts Housing Finance Authority, Court of Appeals, 2007]

Initial questions from judges showed some unfamiliarity with Chapter 40B law and regulations, particularly those from Judge Green, who seemed to confuse the role of a local zoning appeals board with that of the state Housing Appeals Committee. Both plaintiff and defendant lawyers tried to fill gaps. Judges seemed to grasp circumstances somewhat better as the hearing went on.

Project eligibility: In arguing about the “project eligibility letter,” Ms. Murphy stressed a point made in the Town of Brookline brief: that MDFA failed to follow state regulations. Judge Green tried to steer toward MDFA and CHR viewpoints, but Ms. Murphy would not go there. After Judge Hanlon asked for clarification, she taught a short course: Chapter 40B in half a minute.

State regulations in 760 CMR 56.04(4)(b) require an agency reviewing a 40B project to consider whether a site is “generally appropriate for residential development” and whether a “conceptual project design is generally appropriate for the site.” For both elements, they require a “finding, with supporting reasoning, to be set forth in reasonable detail.” According to regulations as revised in 2008, if a state agency fails to follow the rules, there is no administrative remedy. Only developers now have any administrative appeal rights.

As in the MDFA defense brief, Mr. Tymann tried to string a tripwire, arguing that a “project eligibility letter” reflected only a “preliminary review.” Judge Green, perhaps having absorbed some instruction, queried, “The town can’t appeal to HAC?”–meaning the state’s Housing Appeals Committee.

“The town,” responded Mr. Tymann, “has opportunities…at ZBA hearings”–meaning at its local zoning board. “The project eligibility letter is a ticket to the dance contest. It does not mean you win.” Judge Hanlon sounded unconvinced. She asked, “Then anything else is off the table? Appropriateness of the site?” Mr. Tymann tried to skirt the issue. “The Land Court,” he said, “is reviewing all those issues.”

The Brookline case in Land Court, challenging a “comprehensive permit” issued by the Brookline Zoning Board of Appeals, did not begin for more than a year after its case against MDFA in superior court, challenging the “project eligibility letter.” If Brookline had been able to obtain prompt and thorough consideration in superior court, the Appeals Court and Land Court cases might not have happened.

Contract zoning: Mr. Talerman sketched background of the 1946 agreement between the Town of Brookline and the John Hancock Life Insurance Company, which convinced town meeting to rezone the property now called Hancock Village for apartments. As in the Town of Brookline brief, he cited two prior Appeals Court cases finding that public agreements over use of land were permanent.

Judge Green asked how the 1946 agreement differed from deed restrictions that expire after 30 years. Mr. Talerman responded that the distinction was made on the basis of public participation, involving a discretionary grant of regulatory authority. It has been a developing area of law, he said.

Mr. O’Flaherty called the 1946 agreement a “private agreement,” claiming it had lapsed after 30 years. Judge Hanlon asked how the circumstances differed from prior cases Mr. Talerman cited, in which towns allowed some zoning privileges in return for some restrictions. Mr. O’Flaherty said the 1946 agreement had “preceded a change in zoning.” Indeed it had, but only by a few days before Brookline’s town meeting voted on zoning.

Moreover, said Mr. O’Flaherty, by its terms the 1946 agreement lapsed if Brookline did not maintain the zoning enacted at the 1946 town meeting. Later, he said, Brookline had changed the Hancock Village zoning, claiming that “abrogated the agreement.” What happened was that in 1962 Brookline changed to a new zoning system. Within the new system, it created a special type of zone designed to be equivalent to the older type of apartment zoning assigned to Hancock Village in 1946.

After the hearing, Mr. Talerman explained that the Town of Brookline brief for the case had covered that issue. It was expected to be addressed during trial in superior court. So far, the trial has not occurred, because the superior court judge allowed a motion for summary judgment without considering such arguments.

Awaiting justice: Decisions in Court of Appeals cases are often accompanied by published opinions when they involve new directions in law, as this one seems to. However, those decisions are not particularly speedy. A survey of recent civil cases suggests Brookline might expect an Appeals Court decision in early 2016, probably well before the annual town meeting.

– Beacon staff, Brookline, MA, September 15, 2015


Docket for case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, filed November 14, 2014

Plaintiff’s initial brief, Case 2014-P-1817, Massachusetts Court of Appeals, January 12, 2015

Town of Marion v. Massachusetts Housing Finance Authority, 68 Mass. App. Ct. 208, February 12, 2007

Craig Bolon, Court of Appeals: Brookline’s first lawsuit over Hancock Village, Brookline Beacon, September 12, 2015

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

One thought on “Appeals Court: Brookline v. MassDevelopment

  1. Nancy

    My property was DESTROYED by a 40b housing complex. I went from having 2+ acres of woods next to my home, with a small home made ice cream shop (a football field away from my property line), to having enormous, expensive (over $500,000), towering condos pressed up against my property line. I now have 60+ Windows looking into my yard, and 5 condo back porches, feet from my house. I hear every phone ring, TV set, domestic disputes, fight, loud sex, parties, dogs barking all day & night, and I have been threatened. My son was also threatened by a boy on the bus who lives there, who told him he could see into his room, and he would sneak into our house at night and shoot him in the head!!!! The school suspended his bus privileges for a month, and made him apologies, but this sick, unhappy, abused kid looks INTO my yard from his unit. I have anxiety every time my son plays in the yard now. My family bought this house in 1968, and we have paid Hamilton, MA taxes for over 40 years. We can no longer open any windows, open curtains, enjoy our back porch, or spend any peaceful time in the yard. It has been a LIVING HELL. Recently, I found out that the original, scumbag, greedy, selfish, condo developer who built these HUGE condos, petitioned the town to have the remainder of the unbuilt units be sold at FULL PRICE. So, now, there are only a few units that are “low income”. What? Doesn’t this make this whole project illegal? How does the town get away with this? Our property is literally unsellable now. Ruined. I’m NOT exaggerating at all. Could someone PLEASE comment here, and tell me if I have any legal recourse? These 40 b (but non-compliant 40b) condos have destroyed my life. Last weekend, FIVE visitors to a party there, urinated on my bushes, and I found a drunk teenager CRYING in my driveway at 4:00am (right under my 78 year old mother’s bedroom window). I am FURIOUS. Please tell me what I can do!???

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