Brookline’s first lawsuit over a Chapter 40B housing development Hancock Village has lost, in what looks tantamount to a final outcome. Following a hearing on September 14, 2015, the Massachusetts Court of Appeals issued a speedy decision with a written memorandum, dated September 25. Earlier, adverse superior court rulings were upheld on both their major points: the effects of a 1946 agreement with the John Hancock Life Insurance Company and the effects of 2008 changes to state regulations for Chapter 40B developments.
Arguments and rulings: The Appeals Court wrote that the 1946 agreement had expired in 30 years, under state law. In finding that the agreement was not currently recognizable under Massachusetts law, its memorandum cited procedures that had been followed. Quoting from a recent case, the court said that a recognizable agreement would have to be “land use restrictions imposed as a condition to the discretionary grant of regulatory approval.” [Samuelson v. Planning Board of Orleans, Court of Appeals, 2014]
Instead of restrictions imposed during regulatory approval, the 1946 procedures had involved a voluntary agreement by the original developer, the John Hancock Company, offered as an inducement to allow apartment zoning. The Court of Appeals found those procedures similar to ones of a will or trust, saying that the agreement had therefore expired in 30 years.
The main issue in the original superior court case brought by Brookline had been a challenge to a “project eligibility letter” for the Chapter 40B development, issued by the Massachusetts Development Finance Agency. The town contended that the agency had not followed state regulations, saying that a lawsuit was its only recourse, since 2008 changes in state regulations had eliminated administrative remedies.
The Appeals Court disagreed–writing, without explanation, that it was “unpersuaded by the plaintiffs’ argument.” According to the memorandum, “The issuance of a project eligibility letter is a necessary precondition to consideration of a comprehensive permit application, but it is not final action on the permit.” The Appeals Court cited the case relied on by the superior court. [Town of Marion v. Massachusetts Housing Finance Authority, Court of Appeals, 2007]
Prospects: Like its ruling on the 1946 agreement, the Appeals Court’s ruling on the 2008 regulations turns on a balance of factors and could conceivably have gone the other way. However, both are plainly stated interpretations of state law, citing recent cases at the Appeals Court. A further appeal to the Supreme Judicial Court is surely possible but would look to be a steep, uphill struggle.
The recent ruling appears to collapse a case that the Board of Selectmen filed later in the Land Court, challenging the comprehensive permit granted by Brookline’s Zoning Board of Appeals. A key argument in that case invoked the 1946 agreement, which the Appeals Court ruled has lapsed.
Other arguments, concerning suitability of the development plan for the Hancock Village site, have typically been difficult to sustain in legal challenges against Chapter 40B projects. The Board of Appeals heard over a year of testimony, received major concessions from the Hancock Village developers and imposed over 60 conditions–reducing the scale of the project.
An alternative: Pursuing an alternate vision for Hancock Village, Regina Frawley, a Precinct 16 town meeting member, filed Article 18 for annual town meeting of May, 2015. It sought a study of acquiring the Hancock Village “buffers” for permanent recreation and open space. Those are unbuilt strips of land near Russett and Beverly Roads that had been set aside, separating Hancock Village from the nearby single-family houses, following 1940s agreements with the Town of Brookline.
So far, no such study has been published. To surprise of many in the community, the Board of Selectmen has failed to appoint an independent, objective study committee–as generally expected when the May, 2015, town meeting approved Article 18. Seeing the lack of progress, Ms. Frawley filed Article 15 for the upcoming November, 2015, town meeting. It seeks an independent, objective study committee to be appointed by the moderator of town meeting and by the Advisory Committee.
Ms. Frawley found the recent Appeals Court decision on the Web and distributed it to people who have been concerned about the proposed Hancock Village development. However, she has not become involved with the Hancock Village lawsuits. She continues to pursue her original vision: to provide Brookline’s southernmost neighborhoods with permanent recreation and open space that, so far, they have never enjoyed.
– Beacon staff, Brookline, MA, September 29, 2015
Memorandum and order, case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, September 25, 2015
Martha Samuelson and another v. Planning Board of Orleans and others, 86 Mass. App. Ct. 901, July 2, 2014
Town of Marion v. Massachusetts Housing Finance Authority, 68 Mass. App. Ct. 208, February 12, 2007
Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015
Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015
Appeals Court: Brookline v. MassDevelopment, Brookline Beacon, September 15, 2015
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
Craig Bolon, Advisory Committee: reach for the reset button, Brookline Beacon, July 8, 2015
Craig Bolon, Board of Selectmen: poisoning the well, Brookline Beacon, July 2, 2015