Supreme Judicial Court - Mass Cases
Supreme Judicial Court - Mass Cases Supreme Judicial Court - Mass Cases
a e a e e e e a R reyui.reinents. I-n support. of its Motion, AttiLash submitted LI letter from a represcntative of MassHousiny staling that cert.ai.n of Chc cor1dj.t.i ons were inconsistent w i t h agency rcquirement.s, arld Lhat j.f such conditi ons were not. removed, the aqency would not issue final approval. (undcr the NEE' proyrm) or furid the projecl (under the Housinq Starts program). See RA Vol.1, 67. 760 CMR 31.. 07 (1) (f) states tfic proof necessary Lo establish "agency refusal. t o furid": Une c on omi c /A y cnc y KF: fu s ill . t. o Fu n d " Pro o f t h a t the subsidizing agency w i l l not fund tiic project. because of a condition Imposed by thc Board, that the applicant has request-ed a waiver of tiic subsidizing agency requirement Lhat leads to this result, and that the subsidizing aqency has denied a waiver, shall creat.e a rcbuttab1.e presumption that the condition of the Board makes the project uneconomic. " Attitasti was thus required to ofLcr proof that it ~riadc a request. to MassHoiising Lhat the agency waive t.hose requireriicnts wi.th which the Board's Der!: sion is inconsistent arid fur%her, ofter proof that MassNousing denied any such request for a waiver. Attitash made no These conditions are numbercd, in the order ident.ified by MassHousinq, as 38, 39, 23, 26, 28, 23, 43K, 43F, 43G and 43il. RA Vo1.3, 69-70. MassHouslng makes no mention of the reroakninq fourteen condit.ions imposed by the Board. Thcse conditions are numbered 18, 19, 20, 40, 42, 43, 43A, 43H, 43D, 43K, 431,, 43N, 43w and 59. 14
showing that 1) iC reqi.iested a waiver; and/or 2) MassHousinq denied the waiver. 'Thus, i L fajled t.o establ.ish a presumpti on of "agency refusal to fiind. " Where Attitash fa< led Lo establish either "aqency refusal Lo fund," or that the conditions "make it impossible to proceed in buildiriy or operatiny low or moderate incomc housj ng arid stil1 realizc L? reasonahle return as defined by the applichible subsidiziny aqency," the develoller failed to satjsfy its burden of prnof on t.he motion for siimmary decision. The HAC and the 'Trial Court ignored Attitash's failure to oifer any proof that the conditi.ons rendered the project "uneconomic, " and t.he develuper's failure to satisfy either burden under 760 CMH 31 . 06(3). .I.nste;id, the HAC excused Attitash from its burden of proof on grnunds nenti oned nowhere in G. 1,. c. 40ti or the applicable requlations. Specifically, the HAC concludcd "that the normal requirement that the devel-oper prove that the condit.ions imposed render the proposed deveI.ojmerit urieconoInic is not applj cable since the challenyc is to thc legality of Lhc conditions." KA Vol.1, 461. This was error. The Trial Coiirt brushed aside the affj.rmatjve obligati oris of the devcloper-specifically codified
- Page 1 and 2: ... COMMONWEALTH OF MASSACHUSETTS S
- Page 3 and 4: C. Ucfendant Attitash Views, W C fa
- Page 5 and 6: 0 0 r) I. * a 0 Simiuns v. Clcrk-Ma
- Page 7 and 8: Statement of Issues Presented for R
- Page 9 and 10: Decision. Ttic Fresidj-nq Of fic.cr
- Page 11 and 12: I'roced~irc Act. See G.L.r: . 4I)D,
- Page 13 and 14: t.o decide this case hy summary dec
- Page 15 and 16: sucii hr>usi.ng uricconomj.r: 2nd w
- Page 17 and 18: cniirli tioris imposed by ?.he boar
- Page 19: (3 f c h Lhe HAC: in t.hat one at.
- Page 23 and 24: iiny such condiLion. The HAC is a h
- Page 25 and 26: 0 0 0 a 0 a comprehensive pcrmit. a
- Page 27 and 28: 'The HAC frames t.his care as prese
- Page 29 and 30: 'The board of appeals shall request
- Page 31 and 32: 111. The Trial CourL ... jmproperly
- Page 33 and 34: . . .. specific statute that. the L
- Page 35 and 36: e 0 rn a a rn 0 Conunittee on Urban
- Page 37 and 38: 0 and Reqiil atory Agreement. tc; b
- Page 39 and 40: document.s may be inconsi .?tent wi
- Page 41 and 42: for cost. certification arid sugges
- Page 43 and 44: 0 e e e e e 0 a Inat L c r s ; res
- Page 45 and 46: characterizing them as ":juperflwus
- Page 47 and 48: and the Tr;.al CourL erred in uphol
- Page 49 and 50: the Hoard WAS wilhj.n its aiuthoril
- Page 51 and 52: CommiLlee’s authority and the TT-
- Page 53 and 54: propriety of 53G iunds, tho SJC sta
showing that 1) iC reqi.iested a waiver; and/or 2)<br />
<strong>Mass</strong>Housinq denied the waiver. 'Thus, i L fajled t.o<br />
establ.ish a presumpti on of "agency refusal to fiind. "<br />
Where Attitash fa< led Lo establish either "aqency<br />
refusal Lo fund," or that the conditions "make it<br />
impossible to proceed in buildiriy or operatiny low or<br />
moderate incomc housj ng arid stil1 realizc L? reasonahle<br />
return as defined by the applichible subsidiziny<br />
aqency," the develoller failed to satjsfy its burden of<br />
prnof on t.he motion for siimmary decision.<br />
The HAC and the 'Trial <strong>Court</strong> ignored Attitash's<br />
failure to oifer any proof that the conditi.ons<br />
rendered the project "uneconomic, " and t.he develuper's<br />
failure to satisfy either burden under 760 CMH<br />
31 . 06(3). .I.nste;id, the HAC excused Attitash from its<br />
burden of proof on grnunds nenti oned nowhere in G. 1,.<br />
c. 40ti or the applicable requlations. Specifically,<br />
the HAC concludcd "that the normal requirement that<br />
the devel-oper prove that the condit.ions imposed render<br />
the proposed deveI.ojmerit urieconoInic is not applj cable<br />
since the challenyc is to thc legality of Lhc<br />
conditions." KA Vol.1, 461. This was error.<br />
The Trial Coiirt brushed aside the affj.rmatjve<br />
obligati oris of the devcloper-specifically codified
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