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Massachusetts Appeals Court Finds Zoning Board’s Waiver of Waste Disposal Limitations for Housing Project Unreasonable

In a recently published opinion, the Massachusetts Court of Appeals reversed a decision by a local zoning board that waived the requirements of a zoning bylaw regarding sewage limitations for a proposed housing project in Stow. In Reynolds v. Zoning Board of Appeals of Stow, a neighboring property owner of the housing project filed a complaint against the board after it granted a comprehensive permit to the Stow Elderly Housing Corporation for the construction of a low and moderate income elderly housing project. The proposed housing project and its sewage disposal system is situated in the town’s water resource protection district (WRPD). Despite findings that the proposed project would generate approximately six times the amount of sewage and waste water permitted by the WRPD regulations, the board granted waivers from the WRPD regulations. That decision was then appealed.council-estate-1210201-639x852

The Comprehensive Permit Act, sometimes referred to as “the anti-snob zoning act,” was enacted to provide relief from exclusionary zoning practices that prevented the construction of badly needed low and moderate income housing in Massachusetts. The Act provides a streamlined application process to a local board that is authorized to waive local regulations, including zoning ordinances and bylaws, if they are not “consistent with local needs.” Under the Act, regulations that are “consistent with local needs” are those that are reasonable in view of the regional need for low and moderate income housing, the protection of the health or safety of the occupants of the proposed housing and residents of the town, and promoting better site and building design in relation to the surroundings or to preserve open spaces. These requirements must be applied as equally as possible to subsidized and unsubsidized housing. A board can justify denying an application for a comprehensive permit by identifying a health or other local concern that supports the denial, is not adequately addressed by compliance with Massachusetts standards, and outweighs the regional housing need.

In Reynolds, the plaintiff produced evidence that the housing project would cause excessive nitrogen levels at the neighboring well. The Court of Appeals found that when presented with evidence that one or more adjacent private wells would have elevated nitrogen levels, and that there is no public water source in the area and no proposal to provide the neighboring residents with clean water, it is unreasonable to conclude that the local need for affordable housing outweighs the health concerns of the existing residents. In these circumstances, the court held, the board’s waiver of the bylaw provision limiting the flow into waste disposal systems within the WRPD was unreasonable. The court remanded the case for entry of a judgment revoking the comprehensive permit.

The Massachusetts attorneys at Pulgini & Norton advise clients on a variety of real estate matters, including land use and zoning issues, easements, home purchases and sales, and other property transactions. To discuss your real estate needs with one of our attorneys, call (781) 843-2200, or contact us online.

More Blog Posts:

Massachusetts Land Court Affirms Denial of Homeowner’s Application for Zoning Variance, Special Permit, Massachusetts Real Estate Lawyer Blog, published August 14, 2015

Massachusetts Land Court Finds Property Owners Have Standing to Challenge Neighbor’s Zoning Variance, Massachusetts Real Estate Lawyer Blog, published August 21, 2015

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