Hancock Village 40B: parties try further appeal

Private parties to the original lawsuit over the proposed Chapter 40B housing project at Hancock Village have filed for an appeal at the Massachusetts Supreme Judicial Court (SJC). That lawsuit challenged the “project eligibility letter” that the Massachusetts Development Finance Agency issued, allowing the project to be considered by Brookline’s Zoning Board of Appeals.

Further appeal: At superior court for Norfolk County and recently at the Massachusetts Court of Appeals, the Town of Brookline and the allied homeowner group lost. The appeals court issued an abbreviated “rule 1:28″ decision, indicating it saw “no substantial question of law.” That could make the task of obtaining SJC review problematic.

The SJC has discretion over “further appellate review” and does not routinely accept an application unless there is disagreement at the Court of Appeals or what the SJC sees as significant unresolved issues. The Brookline parties might see the appeals court’s summary approach to its case as cause to claim that issues they have are significant and unresolved.

Unresolved issues: When explaining its ruling, the appeals court took a formalist view of a prior case, citing procedures but not substance of events that the Brookline parties had relied on. A key element of their case was an agreement on conditions for how Hancock Village would be developed. It was presented to the 1946 annual town meeting as part of the text of Article 23. After reviewing it, the town meeting voted to change land now called Hancock Village from single-family zoning to apartment zoning.

As a key argument, the Brookline parties had cited a recent appeals court ruling saying that conditions on a subdivision in the town of Orleans were permanent. According to the appeals court, because the Orleans conditions were part of a “discretionary grant of regulatory approval” they did not expire after 30 years, like restrictions in a deed. [Samuelson v. Planning Board of Orleans, 2014]

Surely Brookline’s 1946 rezoning to allow apartments in Hancock Village also was a “discretionary grant of regulatory approval,” and its conditions for development also would not expire in 30 years. According to the Court of Appeals in 2015, that was not enough. The exact procedures had not been followed in Brookline. To make conditions permanent, it was necessary that “land use restrictions” be “imposed” as in Orleans.

That’s actually what Brookline does today, with its specialized and overlay zoning districts of the past 20 years–like ones for Cleveland Circle, Commonwealth Avenue and Brookline Place. These are heavily customized types of zoning, designed around specific development projects. In 1946, however, such concepts were decades away. With its innovative 1946 plan for Hancock Village, the town did what looked reasonable at the time.

Instead of conditions “imposed” by a zoning district or a Zoning Board of Appeals decision, the 1946 town meeting reviewed conditions agreed to by the developer, who stated that the conditions would apply to “itself, its successors and assigns.” The agreement did not specify any particular process through which the conditions would be carried forward, leaving that to the developer.

Prospects: Under the U.S. Constitution, Congress–and by extension other legislatures–are not able to make “ex post facto laws,” applying after events happen. Courts are not so restricted, and that is what the Court of Appeals seems to be trying to do. No doubt, had the Town of Brookline known in 1946 that in 2015 the Court of Appeals would insist that it “impose” conditions, it would have found a way to do that–consistent with understandings that Hancock Village conditions were meant to be permanent.

Now the Brookline parties need to persuade the SJC that the Court of Appeals made a mistake, insisting on procedures that the appeals court prescribed decades after the facts of 1946, rather than considering the substance of what happened in Brookline then.

– Craig Bolon, Brookline, MA, November 13, 2015


Docket, Town of Brookline and others v. Massachusetts Development Finance Agency and another, case number FAR-23838, Massachusetts Supreme Judicial Court, filed October 16, 2015

Memorandum and order, Town of Brookline and others v. Massachusetts Development Finance Agency and others, case number 2014-P-1817, Massachusetts Court of Appeals, September 25, 2015

Martha Samuelson and another v. Planning Board of Orleans and others, 86 Mass. App. Ct. 901, Massachusetts Court of Appeals, July 2, 2014

Hancock Village 1946 Agreement, Article 23, Annual Town Meeting, March 19, 1946, from Brookline, MA, 1946 Annual Town Report, pp. 32-34

Rule 1:28, summary disposition, Massachusetts Court of Appeals, 2009

Stephanie J. Mandell, The history of rule 1:28, Massachusetts Bar Association, 2008

Hancock Village lawsuit: Brookline’s appeal dismissed, Brookline Beacon, September 29, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

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