MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
White Barn Lane, LLC (White Barn) filed an application with the town of Norwells zoning board of appeals (board) for a comprehensive permit under G. L. c. 40B to construct a forty-unit residential development; twenty-five percent of the units to be affordable. Although the board granted the comprehensive permit, it denied White Barns request for a waiver of the board of healths regulation limiting the amount of nitrogen that may be released into the wastewater system and imposed other conditions. On appeal to the Housing Appeals Committee of Massachusetts Department of Housing and Community Development (committee), White Barn argued and presented evidence that the denial of the waiver and other conditions imposed by the board, would cause a reduction in the number of units from forty to nineteen and render the development uneconomic under G. L. c. 40B, § 23. The committee agreed and issued a decision striking certain conditions and ordered the board to waive the nitrogen regulation. Multiple parties, including the board, appealed to the Superior Court and the cases were consolidated in that court. With regard to the boards appeal (docket no. 2011-0954), a judge of the Superior Court affirmed the committees decision and granted White Barns cross motion for summary judgment. The board now appeals from that judgment.
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Discussion. The Comprehensive Permit Act, G. L. c. 40B, §§ 20-23, facilitates the development of low and moderate income housing by permitting a developer to file a single application to the local zoning board of appeals, which is authorized to issue a single comprehensive permit with input from the various local municipal boards. See Eisai, Inc. v. Housing Appeals Comm., 89 Mass. App. Ct. 604, 608-609 (2016); Zoning Bd. of Appeals of Sunderland v. Sugarbush Meadow, LLC, 464 Mass. 166, 169 (2013). “The zoning board has ‘the same power to issue permits or approvals as any local board or official who would otherwise act with respect to such application.’ ” Sugarbush Meadow, LLC, supra, quoting G. L. c. 40B, § 21. In some circumstances, the board “has the power to override requirements or restrictions that would normally be imposed by those local boards.” Dennis Hous. Corp. v. Zoning Bd. of Appeals of Dennis, 439 Mass. 71, 77 (2003). Appeal from the boards decision is to the committee, see G. L. c. 40B, § 22, and the committee also has authority “to ‘override local “requirements and regulations” ’ ” in certain circumstances. See Taylor v. Board of Appeals of Lexington, 451 Mass. 270, 278 (2008), quoting Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 355 (1973). “If the committee finds, in the case of an approval with conditions and requirements imposed, 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 or requirement so as to make the proposal no longer uneconomic and to issue any necessary permit or approval․” G. L. c. 40B, § 23.
The committees decision “may be reviewed in the [S]uperior [C]ourt in accordance with the provisions of” G. L. c. 30A. G. L. c. 40A, § 22. “The reviewing judge considers whether the [committee]s decision was arbitrary, capricious, lacking substantial evidence, or otherwise contrary to the law, and whether the substantial rights of any party have been prejudiced.” Eisai, Inc., 89 Mass. App. Ct. at 610. The committee assesses credibility of witnesses, and “we must indulge all rational presumptions in favor of the validity of the [committee]s determinations, including its choice between two fairly conflicting views, giving due weight to its experience, technical competence, and specialized knowledge.” Id. at 611, quoting Zoning Bd. of Appeals of Holliston v. Housing Appeals Comm., 80 Mass. App. Ct. 406, 415 (2011).
Here, the sole issue raised before us is whether the committee erred in concluding that White Barn met its burden of demonstrating that the proposed project, as approved, would be uneconomic.
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The committees regulations defined “uneconomic” to mean:
“any condition imposed by a Board in its approval of a Comprehensive Permit, brought about by a single factor or a combination of factors, to the extent that it: ․ (b) makes it impossible for a Limited Dividend Organization to proceed and still realize a reasonable return in building or operating such Project․ See 760 [Code Mass. Regs.] § 56.05(8)(d).”
760 Code Mass. Regs. § 56.02 (2008).
Where the board approved the comprehensive permit with conditions, White Barn bore the initial burden of proving that the boards decision made the project “uneconomic.” Board of Appeal of Woburn v. Housing Appeal Comm., 451 Mass. 581, 583-584 (2008). See 760 Code Mass. Regs. § 56.07(2)(a)(3). White Barn presented evidence, credited by the committee, that enforcement of the nitrogen requirement would cause a reduction in the number of units from forty to nineteen. White Barn presented a pro forma which demonstrated that the project would be constructed at a loss of $512,000 to White Barn if it were limited to nineteen units. The manager of White Barn testified that the project as conditioned was unbuildable. Moreover, he specifically testified that constructing a nitrogen treatment plant in order to increase the number of units would not make the project economic. He said, “I know what they cost and we were under [fifteen] percent to begin with so we didnt feel it was economical.”
Before the committee, the Superior Court, and on appeal to this court, the board did not take issue with White Barns assertion that the failure to waive the nitrogen limit would reduce the project to nineteen units as designed; instead, it argued that a wastewater treatment plant, a recirculating sand filter, or other “nitrogen-decreasing alternatives might be designed and implemented at reasonable cost to allow for greater density with reduced impact.” On cross examination, White Barns expert agreed that a wastewater treatment plant with nitrogen loading improvement or a recirculating sand filter would allow increased nitrogen loading under Title V. He testified that a recirculating sand filter would allow between twenty-two and twenty-six units.
Based on White Barns experts concession that an alternative design would allow twenty-two to twenty-six units, the board argues that the premise of White Barns pro forma that showed construction of nineteen units would be uneconomic was based on an error. The problem with that argument, as the committee and the Superior Court judge pointed out, is that there was no evidence in the record to rebut the testimony that even at twenty-six units, the project would not be uneconomic. There simply was no evidence that an alternate nitrogen-reducing design was economically feasible and would result in a reasonable rate of return. Instead, the committee credited White Barns managers testimony that construction of a nitrogen treatment plant would not make the project economical.
The board argues that the committee and the judge, by noting the absence of evidence that alternative technology would make the project economical, shifted the burden of proof to the board. We disagree. White Barn presented evidence, credited by the committee, that demonstrated that the project as approved without the waiver was uneconomic. Where, in response, the board sought to refute that conclusion by suggesting alternative technology but offered no evidence of the economic impact of such alternative design, the committee was warranted in rejecting the boards argument that an alternative design would prevent the project from being uneconomic.
The board argues that the committee and the judge improperly relied on guidelines promulgated by the Department of Housing and Community Development (DHCD) then in effect that created a rebuttable presumption that a condition that decreases the number of units in a project by five percent or more would cause the developer to be unable to achieve a reasonable return. The board contends that the committee and the judge improperly gave the guideline “the force of law.” Because there was substantial other evidence credited by the committee to support the conclusion that the project, as approved, would be uneconomic, it was not necessary to rely on the DHCD guidelines. Moreover, we note that after a lengthy discussion about the evidence White Barn submitted demonstrating that the substantial reduction in the number of units would render the project uneconomic, the committee merely noted that under the DHCD guidelines, White Barn also prevails. We need not consider whether the guideline, since deleted, could be relied upon as the sole rationale for concluding that the project, as approved, was uneconomic.
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Judgment affirmed.
FOOTNOTES
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. Although consolidated with other appeals in the Superior Court, the boards appeal on the issue of whether White Barn proved that the project as approved is uneconomic is the only appeal before us.
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. At least in the absence of an argument that the boards conditions exceeded the authority of the board, G. L. c. 40B, § 23, requires the committee to conduct an “uneconomic” analysis before balancing the conditions against local needs. See Zoning Bd. of Appeals of Amesbury v. Housing Appeals Comm., 457 Mass. 748, 762-763 (2010), quoting Board of Appeals of Woburn v. Housing Appeals Comm., 451 Mass. 581, 584 (2008). Here, however, the board does not argue that the proposed project is not consistent with local needs, thus we need not consider that issue.
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. The board also requests this court to declare that the trial court erred in concluding that White Barn was not required to return to the planning board for further subdivision approval. The issue was addressed by the trial court in a November 27, 2019 decision on the boards motion for reconsideration. For the reasons stated in the judges order denying the motion for reconsideration, we decline the boards request.
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. We deny White Barns request for attorneys fees.