Town of Groton Prevails in 40B Case

from the Office of State Rep. Robert S. Hargraves

According to State Representative Robert Hargraves, "The Supreme Judicial Court's opinion in favor of the Groton Zoning Board of Appeals is a narrow but important victory for cities and towns confronting 40B. Though well intended, chapter 40B of Massachusetts General Laws, sections 20 through 23, has proven ineffective in promoting affordable housing. At the same time, it has allowed developers to ignore reasonable restrictions and trump the local planning process."

The case pitted the Groton ZBA against a state agency, the housing appeals committee (HAC) of the Department of Housing and Community Development. HAC had effectively ordered Groton to provide two rights of use, or "easements," to benefit a proposed 40B project, one to clear and re-grade some Town-owned land and another to provide access across Town-owned land. The Town's appeal of this order to Superior Court failed. However, the Supreme Judicial Court overrode the Superior Court decision, finding that "The [40B] Act does not authorize the [housing appeals] committee, directly or indirectly, to order the conveyance of an easement over land abutting the project site of a proposed affordable housing development." Further, "In enacting G. L. c. 40B, the Legislature indicated that, in some circumstances, compliance with locally imposed barriers may need to yield to the regional need for affordable housing, but this legislative judgment cannot be stretched to empower the committee to act as the legislative body of a municipality for purposes of land transfers."

"Groton's case establishes a precedent as to the limits of 40B," commented Hargraves, "But the law's central problem remains: If a local planning authority doesn't approve a developer's plan, the developer can threaten to impose an alternate 40B project, and the municipality has nothing to say about it. 40B is a tool for blackmail."

"Groton chose to stand ground and fight. The ZBA and Board of Selectmen are to be commended."

Rep. Hargraves and legislative co-sponsors have offered a bill, H 1234, that would abolish onerous sections 20 through 23 of chapter 40B. A petition drive to place the question on the ballot failed for lack of certified signatures in 2007.

Find the Supreme Judicial Court's opinion at:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ma&vol=sjcslip/18026&invol=1

Find links to sections 20 through 23 of the Massachusetts General Laws at:
http://www.mass.gov/legis/laws/mgl/gl-40b-toc.htm

Find H 1234 at:
http://www.mass.gov/legis/bills/house/185/ht01pdf/ht01234.pdf