464 Mass. 166 - Appellee Sugarbush Brief - Mass Cases

COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
FRANKLIN, SS. SJC-11100
SUNDERLAND ZONING BOARD OF APPEALS,
aintiff-Appellant,
v.
SUGARBUSH , LLC and THE MASSACHUSETTS HOUSING APPEALS
COMMITTEE.
Defendants-Appellees.
ON APPEAL FROM A JUDGMENT OF THE SU COURT FOR FRANKLIN
COUNTY (Lower Ct. Docket No. FRCV2010-00076) and granted Direct
Appellate ew from the Appeals Court Doc No. 2011-P-1775
BRIEF OF SUGARBUSH MEADOW, LLC
February 22, 2012
Defendant-Appellee
Peter L. Freeman (BBO 179140)
FREEMAN LAW P LLC
86 Willow Street
Yarmouthport, MA 02675
508-3 -4700
pfreeman@freemanlawgroup.com
Attorn r Sugarbush Meadow, LLC

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Massachusetts Supreme Judicial Court Rule
1:21, Defendant-Appellee Sugarbush Meadows, LLC hereby
states that it has no parent corporations and that no
publicly held corporation owns 10% or more of
Sugarbush Meadows, LLC's stock.
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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT i
TABLE OF AUTHORITIES iv
ISSUES PRESENTED FOR REVIEW 1
STATEMENT OF THE CASE 2
STATEMENT OF FACTS 2
SUMMARY OF ARGUMENT 14
ARGUMENT 18
STANDARD OF REVIEW 18
• 1. The Superior Court Was Correct in
Affirming The HAC sion that the
Board Failed to Meet s Burden
Establishing that there is A Specific
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Local Fire-Safety Concern with
Regard to the Proposed Buildings that
Outweighs The Regional Need Housing. 20
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2. The Superior Court Was Correct to Find
that Inexpensive Market Rate Housing
that Does Not Constitute Low or
Moderate Income Housing Under The
Statute Should Not Factored Into
The Consideration the Regional Need
Housing, And that the Board led
to Prove that the Town has Satisfied its
Burden on the Housing Need. 25
A. A Presumption Exists that the Substantial
Regional Housing Need Outweighs
Concerns. 25
B. Sugarbush Provided Compelling Evidence
Of a Substantial Regional Housing Need. 26
C. The Board's Evidence Concerning Market-Rate
Housing is Irrelevant as a Matter of Law. 26
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• CASES
TABLE OF AUTHORITIES
Lisbon v. Contributory Ret. Appeal Bd.,
41 Mass App. Ct. 246, 257 (1996)
• Zoning Bd. Appeals of Wellesley v. Housing
Appeals Comm., 385 Mass. 651, 654 (1982)
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Middleborough v. Housing Appeals Comm.,
449 Mass. 514, 4 (2007)
Zoning Bd. Of Appeals of Amesbury vs.
Housing AR2eals Comm., 457 Mass. 748,
759 (2010)
Board of Appeals of Hanover v. Housing
Appeals Committee, 363 Mass, 339 (1973)
Hollis Hills, LLC v. Lunenburg
Zoning Board Of Appeals,
Housing Appeals Decision 07-13
Zoning Board of Appeals of Wellesley v.
Ardemore Apts. Ltd, 436 Mass. 811 (2002)
Zoning Bd. Of App. Of Canton v. Housing
App. Comm., 76 Mass. App. Ct. 467 (2010)
Zoning Bd. Of App. Of Greenfield v.
Housing Appeals Committee,
15 Mass App. Ct. 553 (1983)
Zoning Board of Appeals of Holliston v.
Housing Appeals Committee, 80 Mass.
App. Ct. 406 (2011)
Silva v. City of North Attleboro,
454 Mass. 165 (2009)
STATUTES and REGULATIONS
• M.G.L. c.40B, o
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19,20,45
19,40,44,45
27,40,44
28,29,33
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31,32
32
39
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1,6,15,
26,27,45

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M.G.L. c. 143, § 98 3,23,24
• M.G.L. c. 30A, § 14 (7) 18
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M.G.L. c. 30A, § 1 (6) 19
780 CMR 901. 7 20,21
760 CMR 56.07 (3) (a) 26
760 CMR 56.06 (II) (b) (c) 33
• 760 CMR 56.07(2) (b) (4) 34,35,36
760 CMR 56.07 (2) (a) (4) 37,41
760 CMR 56.05(2) 39
• 760 CMR 56.05 (5) (a) 42,44
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760 CMR 56.07 (6) (d) 44
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ISSUES PRESENTED FOR REVIEW
A. Was the Superior Court correct in affirming
Decision of the Housing Appeals Committee that:
• 1. the Sunderland Zoning Board of Appeals ("the
Board") failed to meet it burden of establishing
that there is a specific local fire- concern
• with regard to the proposed buildings that
outweighs the regional need for housing?
2. inexpens market rate housing that does not
• constitute "low or moderate income housing" as
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defined in G.L. c 40B, s. 20 should not
factored the consideration of· the regional
for housing, and that the Board failed to
prove that the Town has satisfied its burden on
the housing need?
3. the Board failed to establish that fiscal impacts
from proposed project just the denial of
the Comprehensive Permit?
44 Sugarbush Meadows, LLC ("Sugarbush") met prima
• facie case that the proposed proj is consistent
with standards arising under the State Wetlands
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Protection Act?
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and limited commercial uses along Route 116.HAC
Deci , A p.258.
Fire - Safety Concern
• 3. The Sunderland Zoning Bylaw allows certain
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residential and commercial building ights up to
45 feet. Sunderland Zoning Bylaw, A pp.33-35.
4. The maximum height the Sugarbush
buildings will be 42 feet. Ahearn Direct
stimony, A p. 155 (#8).
5. Under State Building Code, only "a
or town which is not served by a municipal water
system may, with the approval of the [state
of building regulations and standards], adopt
• rules and regulations with regard to
protection systems which are more restrictive
than those established by state building code
• " G. L. c. 143 , § 98. Appendix.
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6. Sunderland is served by a municipal water
system. Hastings Direct Testimony, A p. 311, #6.
7. Sugarbush I s witness, Kevin S. Hastings, an
engineer with R. W. Sullivan Engineering,
that the Project "will comply with Federal, State
and local codes relating to fire safety and good
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• A p. 309, #3.
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fire safety practices." Hastings Direct Testimony,
B. Hastings testi that a state-of-the
sprinkler system will installed throughout
each building, as required by the State Building
Code and National Protection' Association
• standards ("NFPA"). Hastings Direct Testimony, A pp.
309-310 #3-4.
9. Hastings testified that the Proj
• incorporates safety measures that are even
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greater than those
red by the Building Code
and NFPA standards were effective at the
of the Application, e it includes sprinkler
protection in attics and other concealed
Hastings Direct Testimony, A pp. 309-310 #3.
10. Hastings c,oncluded that the Project's
structures "do not
sent an unusual fire or
life safety hazard which would require a
truck ...." Has Rebuttal Testimony, A p.32S,
• #7. as "these additional protection features,
of which will be present this proposed project,
provide an overall 1 of occupant and
• fighter safety which that provided in a
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building complying with the 35 foot height
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limitation but without sprinkler protection. "
• Hastings Direct Testimony, A p. 311 #5.
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11. Hastings testified that Fire Chief Adams
misinterprets the meaning of section of 760 CMR
901.7, which clearly "is intended to allow the fire
official to have approval of required fire lane
locations and vehicle access to the building but
was not intended to allow a fire official to limit
the building size in area or height to levels more
restrictive than that specifically allowed under
Chapter 5 of the Massachusetts State Building
Code." Hastings Rebuttal Testimony, A pp. 326-327
#4.
12. The Town of Amherst abuts the Town of
• Sunderland and based on conversations with the
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Sunderland Fire Chief, Amherst does have a 48' long
aerial platform fire truck that could respond to the
site and that truck would be of sufficient size to
reach the highest levels of the buildings; and that
the site access and vehicle lanes were designed to
accommodate the turning radius of that truck.
Darnold Direct Testimony, A pp. 305-306 #27.
Housing Need
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13. Sunderland's percentage of low or moderate
• income housing as determined by the Commonwealth of
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Massachusetts
of Housing & Community
Development ("DHCD") its Subsidized ing
Inve!).tory ("SHI")is 0.4%. HAC Decision, A p. 262.
14. The Town not satisfied any of the
• statutory minima fined in sentence two of the
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definition of "consistent with 10 needs"
criterion in G.L. c. 40B, § .. 20. Joint Pre-Hearing
Order, A p. 345, Stipulation No.3.
15. Undisputed data and expert testimony
presented by Sugarbush's housing expert, Lynne D.
Sweet, establi s that Sunderland's region
(which includes the towns of Sunderland, Amherst,
• Deerfield, Hadley, Montague, and Whately) is
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lacking in low or moderate income ing. Sweet
Rebuttal Testimony, A p. 224, #25.
16. While Amherst, Hadley, and Montague are each
slightly over statutory minimum of 10%, the
• remaining muni i ties in the region are well
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below: Sunderl is at .36%, Deerfield at 1.56%,
and Whately .310/0. Sweet Rebuttal stimony, A
p. 224, #'s 26 and 28.
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17. The three housing authorities in the
• region have a combined total of 434 residents
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waiting for low or moderate income housing, with a
two to five year wait for family units. Sweet
Rebuttal Testimony, A p.225, #31.
18. There are nine privately owned low or
• moderate income housing developments located in
the region, all of which are at 100% capacity with
an average wait of two years for a unit. Sweet
• Rebuttal Testimony, A p.225, #31.
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19. A market study conducted by Ms. Sweet
concludes that the occupancy in the market-rate
developments in the region is over 98%,
demonstrating an immediate need for additional
• rental housing. Sweet Rebuttal Testimony, A p. 226,
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#34.
20. Ms. Sweet provided statistical data showing
that based on 2008 household income, there are
approximately 6,000 households in the six town
region that earn below 50% of the annual Area Median
Income ("AMI"), which is 30% of all households in
the region, and there are approximately 9,200
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households, or 47%, that earn below 80% AMI.
• Sweet Rebuttal Testimony, A p. 227, #39.
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21. Ms. Sweet concluded there is still demand
for an addit 2, 000 units of affordable rental
housing for households at or below 50% AMI and
for more than 5,000 units for households or below
80% of AMI. Sweet Rebuttal Testimony, A p.227, #39.
22. According to the United es Census 2007
American Community Survey ("ACS") the greater
Amherst area, approximately 3, 000 household or 24%
of the population are living ow the poverty
level. Sweet Rebuttal Testimony, A p. 226, #36.
23. According to the ACI, in greater Amherst
area which includes approximately 12,600 households,
there are 4,143 renter households, or 67%, which pay
more than 30% of their toward rent and
• fore, according to HUD, are considered rent
burdened; and there are 2,785 renter households, or
45%, paying more than 50% their income towards
• and therefore, according to HUD, are considered
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severely- rent burdened. Rebuttal Testimony, A
pp. 225-226, #33.
Fiscal Impacts
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24. The Board submitted no evidence that the
• alleged seal impacts to the Town are tied to
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any "unusual topographical, environmental, or
other physical circumstances which make the
installation the needed service prohibitively
costly."
Wetlands
25. Sugarbush submitted substantial data on the
wetlands sue, "including proj ect drainage
calculations, soil investigations, [and] wetland
and resource area delineation." Darnold Rebuttal
Testimony, A p. 313, #2.
26. Sugarbush's consultant, Michael Marcus, is
a profess wetlands scienti certified
professional in erosion and se control,
certified
sional in storm water quality, and
under his supervision his firm New England
Environment ("NEE") conducted the resource area
delineation and obtained a seding Order of
• Resource Delineation ("ORAD") from the State
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DEP. Marcus Testimony, A pp. 284-288, #'s 1­
7.
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27. After obtaining the ORAD, NEE prepared a plan
• depicting all of the Project site's wetland
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resource areas and the location of 14 proposed
groundwater monitoring wells. Marcus Direct
Testimony, A pp. 284-288, #'s 1-7.
28. Marcus also reviewed the Proj ect I s site
• plan depicting work areas in the buffer zone and
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the locations of three detention basins. Marcus
Direct Testimony, A pp. 289-291, #'s 11-14. Marcus
further testified that all the Proj ect I s proposed
improvements "are located outside of the
jurisdictional areas under both the State Wetlands
Protection Act ["WPA"] and the Sunderland Zoning
Bylaw," with the exception of certain Buffer Zone
work, and that "no alteration of any wetland
resource is proposed." Marcus Direct Testimony, A
pp. 288-290, #'s 8-10.
29. Marcus provided detailed testimony and
documentation of the proposed buffer zone work,
• and he concluded that it all complies with
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standards under the WPA. Marcus Direct Testimony,
A pp.292-293, #19.
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30. On the subject of stormwater management,
• Marcus reviewed a plan developed for Sugarbush by
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The Berkshire Design Group and opined that "[t]here
are no site obstacles to prevent final design of
[the] stormwater management system in accordance
with the DEP' s s management regulations
," and further that "the stormwater issues
and site related to this project are
standard and do not present any unusual
• challenges." Marcus Direct Testimony, A pp. 293-294,
#'s 20-24.
• 31. Marcus concluded that the Sugarbush Project
is permittable under the WPA and applicable
• 294, #'s 20-24.
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regulations. (Marcus Direct Testimony, A pp. 293­
32. Mark Darnold, a civil
with
subst i education and experience wetlands
and stormwater management, also reviewed the
Proj Darnold Direct Testimony, A pp. 296-298,
3's 1-5.
33. Darnold concluded that "[t] project was
designed so as to avoid if sible and
ze if necessary any wetland or resource area
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disturbance." Darnold Direct Testimony, A p. 300,
#11. He noted that "no work is proposed within any
wetland resource areas as described in State
Wetlands Prot Act or regulations." Darnold
Direct Testimony, A p.300, #11.
34. Darnold thoroughly reviewed the ect "to
• ensure it will meet and comply with the
technical
rements of standard ice and
environmental regulations and pol " Darnold
• Direct imony, A p. 300, #12. He concluded that
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the Proj will comply with the "stringent and
detailed Stormwater Standards" DEP. Darnold
Direct imony, A pp.300-306, #11-26.
35. In considering a detailed s 1 analysis of
• the ect site, and the Project's stormwater
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management design, Darnold stated that the
assertion by John Furman (an expert witness for
Board) that Darnold did not address new DEP
regulations is incorrect, because Darnold's
"pre-filed direct testimony was clearly based upon
compliance with the 'current' regulations. "
Darnold Rebuttal Testimony, A p. 314, #5.
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36. Marcus concluded that the Proj ect complies
• with both the standards under the local wetlands
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bylaw and the WPA. Marcus Direct Testimony, A pp. 289­
290, I's 11-12; Marcus Rebuttal Testimony, A p. 324,
#4.
37. Marcus fied that it the practice of
• the Sunderland Conservation Commission to approve
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work in a buffer zone. Marcus Direct Testimony, A
pp. 289-290, # 11). As an example, he cited to the
approval of American Lease Insurance Building
(directly across Route 116 from the Sugarbush
• Project site), consisting of 60,000 square of
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buffer zone work and the alteration of 500 square
feet of wetl Marcus Direct Testimony, A pp.
• 289-290, # 11. He cited as other examples the
Sunderland Conservation Commission's prior
approvals work at the Sugarbush Proj ect site
and at an abutting property, both of which
permitted work in buffer zones. Marcus Direct
• Testimony, A pp. 289-290, # 11.
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The Board's Improper Requirement that
Sugarbush Pay $10,000 for the Board's Legal.
Fees
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38. The Board's "Comprehensive Permit Rules"
• include a Section 4. 00 entitled "Review Fees"
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and states in Section 4.01 that the Board may
require the Applicant to pay a reasonable
"project review fee." A p. 11.
39. Section 4.02 of the Board's Comprehensive
Permit Rules includes "lawyers" among the type
of outside consultants whom the Board can hire
and require the Applicant to pay for. A p. 11.
SUMMARY OF ARGUMENT
1. The Board has failed to prove that there is a
• valid fire-safety concern that outweighs the
regional housing need. The proposed buildings
comply with the fire safety provisions of the State
• Building Code, and in fact exceed them. The
•
Sunderland Fire Chief bases his objection to the
project on the fact that Sunderland does not own a
fire ladder truck that can reach the roofs of the
proposed 42 foot high buildings. However, his
• judgment that this creates a safety issue is not
supported by the facts and he is not given
unfettered discretion under the ,State Building Code
• to rej ect the plans based on the building height.
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Indeed, the Town's position is entirely hypocritical
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and unfounded because its own Zoning Bylaw allows
• building heights of 45 feet for commercial and
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certain multifamily buildings.
2. The Board's position that the existence of a
substantial number of inexpensive market
(unsubsidized) rental units in Sunderland proves
that it has satisfied its housing need and that
there is not a regional need for housing that
outweighs the Town's local concerns is unfounded as
• a matter of law and fact. G.L. c. 40B, s. 20
•
explicitly defines the term "low or moderate income
housing" and uses that term in the "consistent with
local needs" balancing test. The inexpensive rental
units cited by the Board are not created pursuant to
a federal or state governmental subsidy program and
are thus not low or moderate income units. There
are many sound reasons why the legislature used such
• a definition: the federal and state subsidizing
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agencies invariably require that only income
eligible low or moderate income households live in
such units, that a long term affordable housing use
restriction insuring such occupancy be placed on the
property, that the structures are designed and built
to good quality standards, and that there is good
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management to insure a good quality housing.
• Further, although market housing might be
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inexpensive one year, it may well not one or two
or more years in the future, and with no controls on
rents and the occupants as there are on the
subsidized units, housing need could easily not
met.
As a fact matter, Sugarbush provided
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substantial evi showing a real need for
affordable hous in a six town region, including
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Sunderland and 5 surrounding towns. Such evidence
went beyond sumption to which Sugarbush is
entitled bas on the Board's stipulation that
Sunderland not met any of the statutory
• arithmetical ing goals in statute:
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presumption the regional housing need outweighs
the local concerns.
3. The Board did not meet its burden to show the
proposed ect created fiscal impacts that
supported Board's of the comprehensive
permit. Board raised only generalized impacts
on schools and budget. Both as to such concerns and
• as to its argument on the scal impact bas on the
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purported need to buy a ladder fire engine if the
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proj were built, the Board completely failed to
• show, as required by the applicable regulation, that
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such impacts were based on any unusual
topographical, environmental, or other physical
circumstances. The Board had in fact, in the Joint
Pre-Hearing Order, stated that would do so, thus
agreeing to such a standard, but it failed to do so.
4. The Board bases its argument that Sugarbush did
not prove its prima case on wetlands impacts
• primarily on legations that Sugarbush did not
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provide the Board with enough detailed information
so that the Board could determine such impacts.
This is wrong both legally and factually. Legally,
both the Regulations and the Chapter 40B case law
• make very clear that only preliminary plans are
required, and that any concerns about specificity or
impacts can be met by a condition requiring that the
• plans receive the necessary approval of local
•
conservation commission under the state Wetlands
Protection Act. In any event, as a factual matter,
Sugarbush did provide substantial data and detailed
plans and analysis by experts who testified that the
• plans complied with applicable state and federal
•
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laws and regulations, and that they would not
• adversely the wetland resource areas.
5. The Board improperly made Sugarbush pay $10,000.00
•
for legal se ces provided to the during the
local hearings. The Board hollowly argues that this
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payment was a legitimate filing , but in fact
its own 4 DB Rules describe such services as
consultant review fees. Under the applicable
Regulations, is impermissible a zoning board
• to make an applicant pay for the cost of such
•
general
representation.
ARGUMENT
Standard of Review
G.L. c. 30A states that the Superior Court, in
• deciding Board's appeal of the HAC Decision,
"shall give weight to the , technical
competence, and specialized knowledge of the
• agency, as well as to the discretionary
•
authority conferred upon it. " G.L. c. 30A, §
14(7). Addendum. The HAC's findings can be
overturned only if they are not supported by
"substant evidence," M.G.L. c. 30A,§ 14 (7) (e)
• Addendum, which Chapter 30A defines as
•
"such evidence as a reasonable mind might accept
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Mass. 748, 759 (2010), quoting Middleborough, 449
• Mass. at 523.
• 1. The Superior Court Was Correct in
Affirming the HAC Decision that the Board
Failed to Meet its Burden of Establishing
that there is a Specific Local Fire-Safety
Concern with Regard to the Proposed
Buildings that Outweighs the Regional Need
for Housing
•
•
The Board as s that its concern about adequacy
of access for fire-s is a local concern which
outweighs the regional housing need. The Board has
failed to prove that the project will create a fire­
• safety ha or that such local concern outweighs the
need for low or moderate income housing in Sunderland's
region.
• The Board's argument is very simple: the Proj ect
•
•
raises a concern for the local Fire Chief, Robert
Ahearn, that the Sunderland Fire Department does not
possess a ladder truck that reaches the highest
elevation of the Proj ect' s buildings. Ahearn Direct
Testimony, A pp. 155-156 #12; Adams Direct Testimony, A
P 169 #10; and Board therefore concludes that
buildings are unsafe from a fire-safety perspective.
• The Board claims that the State Building Code, 780
•
CMR 901. 7, gives a local fire chi unfettered
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codes relating to fire safety and good safety
• practices." Hastings Direct Testimony, A p. 309 #3;
•
•
and that the Project incorporates -of-the-art
safety measures that are even than those
required by the Building Code National Fire
Protection Association ("NFPA") standard, NFPA 13R,
that was in effect at the the Application.
NFPA l3R is intended for occupant protection and does
not require sprinkler
attics or other
• combustible concealed Hastings Direct
•
Testimony, A p. 309 #3. Sugarbush's Project complies
with the more stringent NFPA , which is intended for
occupant and property on, because it includes
sprinklers in attics and other concealed spaces.
• Hastings Direct Testimony, A p. 309 #3. Hastings
concluded that the Proj ect' s structures "do not
represent an unusual re or life safety hazard which
• would require a ladder truck . . " Hastings Direct
•
Testimony, A p. 309 #4, as "these additional protection
features, all which will be present in this proposed
project, provide an overall level of occupant and fire
fighter s which exceeds that provided in a
• building with the 35 foot height limitation
•
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but without sprinkler protection." Hastings Direct
• Testimony, A p. 309 #5.
•
•
Therefore, contrary to the Board's argument I the
HAC's determination does not have the effect of
overturning a provision of the State Building Code.
There was ample testimony by Sugarbush expert that
the buildings not only comply with the requirements of
the fire safety provisions of the State Building Code,
but in fact exceed them. It rather a question of
• whether the Fire Chief l s scretionary j udgrnent that
•
the buildings would be unsafe due to their height was
well founded and enough weight to outweigh the local
and regional housing need.
The Board's assertion unfettered discretion
• concerning building height for the Fire Chief is
further undercut by G.L. c. 143, s. 98, which states
that only "a city or town which is not served by a
• municipal water system may, with the approval of the
•
[state board of building regulations and standards],
adopt rules and regulations with regard to fire
protection systems which are more restrictive than
those established by state building code . "
• G.L. c. 143, § 98. Addendum. Sunderland cannot avail
itself of this statute, as is served by a municipal
• n

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water system. Therefore, since the buildings comply
• with the State Building Code, and since under said
Chapter 143, s. 98 the Town has no right to adopt
enforce a more stringent standard, the Board cannot use
• the Fire Chief's standard as grounds for denying
•
Project.
Finally, it is of great significance that
Sunderland Zoning Bylaw allows residential
commercial building s up to 45 feet, and
• height of the proposed buildings is 42 feet. The
•
•
Sunderland Zoning Bylaw, under the Planned Unit
Development Overlay rict section referring to
residential buildings, provides that "a building height
45 feet is permitted." Sunderland Zoning Bylaw,
Section 121-5.1E (4), A p. 35. Moreover, under Section
125-5.E, the "Maximum Building Height (feet)" in the
1 Commercial District is 45 A p. 33. The HAC
• logically determined "the conclusion
•
inescapable that the policy expressed in the bylaw of
lowing for some multiple-story buildings up to a
ight of 45 feet is an acknowledgement that some such
buildings are safe-even though the fire department
• no ladder truck." HAC Decision, A p. 268.
Accordingly, Chief Ahearn's purported concern as to
•
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Project's building height is ill-founded, as buildings
• greater than Project's 42 feet are allowed in the
•
Town of Sunderland.
The HAC fore correctly concluded that "the
Board has to meet its burden establishing
that there is a fie local fire-sa concern with
• regard to proposed buildings that outweighs the
regional need housing." HAC Decision, A p. 268.
The HAC also concluded that applying a restrictive
• height limitat to the Project when heights of 45
•
•
feet are
for non-subsidi housing "calls
into question whether the requirement is being 'applied
as equally as possible to both subsidized and
unsubsidized housing.'" HAC Decision, A p. 268, fn 10.
Therefore, the Superior was correct to affirm the
HAC Decis on this issue.
•
2. The Superior Court Was Correct to Find that
Inexpensive Market Rate Housing that Does Not
Constitute Low or Moderate Income Housing Under
the Statute Should Not Be Factored Into the
Consideration of the Regional Need for Housing,
and that the Board Failed to Prove that the Town
has Satisfied its Burden on the Housing Need
•
•
•
A. A Presumption Exists that the Substantial Regional
Housing Need Outweighs Local Concerns.
25

•
•
•
•
levels red by a subsidizing agency serves the
need for low or moderate income housing in Sunderland.
The HAC correctly ruled that as a matter of law,
evidence market housing is not relevant and
cannot properly be considered in determining whether
the need for subsidized housing has been met. This is
because the statute itself defines "low or moderate
income housing" as "any housing subsidized by the
federal or state government under any program to
• assist the construction of low or moderate income
•
•
housing as defined in the applicable federal or state
statute.... " G.L. c. 40B, s. 20. Likewise, the very
balancing test (the "consistent with local needs"
standard in the statute) weighs "the regional need for
low and moderate income housing considered with the
number of low income persons in the city or town
affected" against the local concerns. G. L. c. 4 DB, s.
• 20. The importance these definitions has long been
•
•
•
upheld: see Board of Appeals of Hanover v. Housing
Appeals Committee, 363 Mass. 339, (1973) where its
first rpretation of Chapter 40B, the Supreme
Judicial Court held housing "need" is not judged
by looking at the availability of just any inexpensive
housing; rather "the municipality's failure to meet
27

•
HAC Hollis Hills Decision, Addendum pp. 6-7. In
• addition, the HAC warned that allowing market rate
•
housing to be included in low and moderate housing
inventory "would likely dissuade developers from
pursuing Chapter 40B projects" and would introduce
"unpredictability" the market, all contrary to the
• goals of Chapter 40B. HAC Hollis Hills Decision,
•
•
•
•
•
Addendum pp. 6-7.
For these reasons, the HAC ruled that "the
existence of inexpensive housing cannot factored
into determining extent of the need for low and
moderate income hous ," HAC Hollis Decision,
Addendum pp. 6-7, and that "[h]ousing available on the
open market cannot meet the statutory and regulatory
standards, and cannot further the statutory goals
long-term decent, affordable housing avail e to
income eligible households. FI HAC Hollis Hills
Decision, Addendum pp. 6-7. See Zoning Bd. of App. of
Wellesley v. Ardemore Apts. Ltd., 436 Mass. 811, 824-25
(2002) (intent of Chapter 40B to serve the public
interest is not met by market rental housing).
In attempting to distinguish the Hollis Hills
• case from this case, the Board argues that rental
•
housing 'is different from ownership housing because it
29

•
is counted differently by DHCD on the SRI: for
• ownership housing, only the affordable units in a
•
proj count towards a municipality's 10% goal; for a
rental project, both the affordable units and the
market rate units count towards a municipality's 10%
goal. The argument is mistaken. First, all units in
• such rental housing are created under the auspices a
federal or st subsidized housing agency and program.
Thus, they are subj ect to the same level of design
• standards, quality, and operational oversight as the
•
•
affordable units. Further, they are creat only in
concert with, and as a result of, housing developments
that provide a certain minimum percentage of units
low or moderate income eligible households as required
by the particular subsidized program (usually at least
20% or 25% of the units must be for low or moderate
income households) and thus the creation of market
• units still helps to achieve low or moderate income
•
•
•
units serving the housing need, which cannot be side
for randomly existing market housing units cited by
the Board. Secondly, such argument does nothing to
disprove the SUbstantial evidence of regional housing
need submitted by Sugarbush, such as percentages of
rental households who are rent burdened or severely
30

•
rent burdened, the waiting lists for local Housing
• Authority units, the need for an additional 2,000 low
•
or moderate income housing units, and the significant
number households living at or below the poverty
level.
The
I
Board so mischaract zes Massachusetts
• court sions addressing the significance the
shold ten-percent statutory minimum subsidized
housing. For example, the Board argues that Zoning Bd.
• of App. of Canton v. Housing App. Corom., 76 Mass. App.
•
Ct. 467 (Mass. 2010), stands for the proposition that
the ten-percent minimum requirement should not be
mechanically applied to municipalities that fail to
reach But is not an accurate reading of the
• Canton de sion. In case, the local board argued
•
•
that Canton was close to ten-percent minimum, and
therefore it should not be required to issue a
comprehens permit a large project that would
increase its subsidized housing inventory to 12.6
percent. Id. at 468. ·The court disagreed and stated,
" [A] ttainment of the ten percent will not necessarily
demonstrate that a locality's need affordable
• housing s been sfied. " Id. at 469 (citing
•
Boothroyd v. Zoning Bd. App. of Amherst, 449 Mass.
31

•
333, 341 (2007). See Zoning Bd. of App. of Greenfield
• v. Housing App. Comm., 15 Mass. App. Ct. 553, 562 n.13
•
•
(1983): Chapter 40B "provides an adequate decisional
framework for ing with the problem of proposed
developments which could cause a community to overshoot
substantially ten percent benchnlark for low and
moderate income housing").
The Canton and Greenfield sions do not support
the Board's asse ion that market housing qualifies as
• subsidized low or moderate income housing. Rather,
•
•
•
•
•
•
they hold that attainment of ten-percent subsidized
housing minimum does not conclusively prove that the
housing need is met.
D. The Board Misrepresents the Evidence as to
the Definition of Sunderland's "Region."
The Board asserts that Sugarbush's regional need
expert, Lynne Sweet, de
Sunderland's region as
land within a 20 mile radius of the project, and
therefore, according to the Board, the region exceeds
the ten-percent subsidized housing minimum. The
Board's argument fails on numerous levels.
First, the Board moved to allow this argument with
new evidence after the HAC hearing on the merits and
the of evidence. Board's motion, A p.244; and
32

•
Sugarbush's opposition, A p. 247. HAC properly
• denied the motion as untimely. HAC Decision, A p. 264
•
fn 6. Admission of new evidence er the hearing
requires a showing of good cause. 760 CMR 56.06(11) (b)
and (c); Sugarbush's opposition, A p. 247. The Board's
purported reason for the late ling was the then­
• recently issued Hollis Hills ion, but nothing in
Hollis Hills created a novel sue upon which the Board
could justify its late filing. Sugarbush's Opposition,
• A p. 247-248. Even the Board's motion were timely,
•
the Board had taken out of context Ms. Sweet' s live
testimony as to a 20 , because (as the HAC
found) her written testimony quite clearly defined the
region as "The Six Town Area" of Sunderland, Amherst,
• Deerfield, Hadley, Montague, and Whatley. Sugarbush's
Opposition, A pp. 248; Sweet Rebuttal Testimony, A p
224, #26 & 28. l Thus, Ms. Sweet and the HAC firmly and
• correctly concluded there is a need for low or
•
•
•
1 Although the Board's motion was denied, the HAC nonetheless addressed fue
Board's argliment and concluded that it was "based only upon a contrived
interpretation ofthe testimony of [Lynne Sweet], one ofthe developer's
witnesses." (HAC Decision, A .p 264) (emphasis in original). The HAC found
that Ms. Sweet "used the term 'radius' loosely, and she did not intend to replace
the six-town region she described-which does approach twenty miles across in
its greatest dimension-with a much larger one." (HAC Decision A p. 264.)
(emphasis in original).
33

•
moderate income housing in Sunderland region.
• Sweet Rebuttal Testimony, A p 224, #26 & 28; HAC
•
Decision, A p. 264).
The Board's argument on inexpensive market-rate
housing satisfying Sunderland's housing need and
tipping the balancing t in favor of the Town's local
• concerns, instead of the well supported regional
housing need, would simply turn Chapter 40B on s
head.
• The Superior Court was therefore correct
•
affirming the HAC Decision on this issue.
3. The Superior Court was Correct in Affirming
the HAC's Decision that the Board Failed to
Establish that Fiscal Impacts from the
Project Justified the Denial of the
Comprehensive Permit
• Under governing regulations, the is
required to submit evidence that its purport cal
• concerns are tied to "unusual topographical,
environmental, or other physical circumstances which
make the installation of the needed service
• prohibitively costly." 760 CMR 56.07(2) (b) (4). In the
•
•
HAC Ruling on Cross Motions for Summary (A p.
335) , presiding officer determined that B'oard
neither made this showing nor identi "any specific
34

•
municipal services and infrastructure would be
• burdened." Ruling on Cross Motions, A. pp. 339-340.
•
However, the Board was given the opportunity to prove
at pursuant to 760 CMR 56.07(2) (b) (4)that the
co purchasing a fire ladder truck a
prohibitive fiscal impact: as part of Joint Pre­
• Order, A p.344, the Board that its
burden was to "show that acquisition of a ladder truck
is not financially feasible, and that dence
• of unusual topographical, environmental, or other
•
•
physi circumstances that make
sition
prohibitively costly." Joint Pre-Hearing , A. p.
348. The Board purely and simply fa do so.
Rather, the Board argues that fi impacts are
properly cognizable under the Sunderland Zoning Bylaw.
However, this is beside the point, and was never even
as an issue as shown by statement of the
• s Burden of Proof on the a fire ladder
•
truck quoted above. Joint Pre-Hea Order, A p. 348.
Although the HAC stated that because of its
determination on the fire-safety sue it need not
the question of the impact of the
• purported need to purchase a ladder truck, HAC
sian, A p. 260, nonetheless the simply failed
•
35

•
to set forth any evidence that were any unusual
• topographical, environmental, or other physical
•
•
circumstances that were related to the Town's inability
to afford the purchase of a ladder truck.
Significantly, the Board does not even attempt to argue
that the regulations are improper.
Consequently, the HAC was correct to hold that
Board's generalized arguments on fiscal impacts were
outside purview of 760 CMR 56.07(2) (b) (4), and the
• Superior court correctly the HAC Decision on
•
•
this issue.
4. The Superior Court was Correct in Affirming the
HAC Decision that Sugarbush Met its Prima Facie
Case that the Proposed Project is Consistent
with the State Wetlands Protection Act and that
the Town's Concern did not Outweigh the Housing
Need
The HAC ruled that "the Board has not sented
substantive evidence show that local wetlands
• concerns outweigh the
need for housing." (HAC
•
sion A. p. 274. HAC's ruling is supported by
substantial evidence the record and should be
upheld.
Sugarbush met prima facie burden by
• demonstrating that with respect to wetlands, its
Project "complies with federal or state statutes or
•
36

•
• II
•
regulations, or with generally recognized standards . .
7 60 CMR 5 6 • a7 (2) (a) (4) • Sugarbush submitted
substant data on the issue and through testimony
of its expert witnesses it met its burden. See
Statement of Facts numbers 25-37 herein.
To meet its burden to prove that a I concern
• on wetlands outweighs regional housing need, the
Board primarily asserts the Sugarbush provided
insufficient information to make a determination, and
• Sugarbush did not s sfy the Board's demands for
•
details demonstrating an absence of wetland impacts.
However, as the HAC Decision stated, the Bo did not
claim this as an issue in the Joint Pre-Hearing Order,
and thus waived it. HAC Decision, A p. 273; and Joint
• Pre-Hearing Order section on the Board's A p.
347. In fact, the Board's Case section of Joint
Pre-Hearing Order, the Board stated that "will show
• that because of the property's propensity for flooding
•
and the stormwater facilit s' proximity to wetlands,
the development will not adequately protect wetlands
resource areas as defined locally and that the
development's stormwater management design is
• inadeguate. u It failed to do so.
•
37

•
Although the Superior Court found "there is
• merit to ZBA ' s obj ection that the HAC erred in
•
concluding that the Town Wetlands Bylaw is not more
restrictive" than the state Wetlands Protection Act,
the Judge correctly found that such error not merit
reversal of the HAC Decision. or court
• Memorandum Order, A p.488.
That is because the HAC correctly found that even
if the bylaw were stricter than WPA, the
• Board to prove wetland impacts that outweigh the
•
regional
need. HAC Decision, A p. 274. As the
HAC stated, "just as under the state law, the local
bylaw permits such construction with review and
approval. The testimony submitted by the Board
• simply s that there will be construction in
•
•
the
zone, and argues that more information
should provided. [The Board] does not
affirmatively even state that damage to wetlands will
occur or scribe that damage, much s prove that it
will Thus, the Board has its burden of
proof. II Decision, A p. 274.
Although it need not have, because the Board
• waived issue, Sugarbush has shown that its plans
•
and information were sufficient. Further, even if it
38

•
had not been waived, the argument would 1 based on
• the statutory scheme and Regulations. Under the 40B
•
Regulations, an Applicant is not required to submit
detailed plans to a board of s. 760 CMR
56.05{2} states that applications shall include: " {a}
preliminary site development plans showing the
• locations, general dimensions materials for
streets, drives, paiking areas, wal and paved areaSi
and proposed landscaping and open areas
• within the site..." and "(f) a preliminary utilities plan
•
showing the proposed location and types of sewage,
drainage, and water facil ies, including hydrants."
Appendix 454. In Zoning Board of Appeals of Holliston
v. Housing Appeals Committee, 80 Mass. App. Ct.
• 406,415-416 (2011), the of Appeals made precisely
the same argument as the Board as to the insufficiency
of the plans information submitted. The Court
• rejected that
, stating: "The regulatory scheme
•
governing
for comprehensi ve permit s,
however, only preliminary plans" (citing the
above Regulat ) . The Court went on to state: "It
has long been held that it is unreasonable for a board
• to withhold approval of an application for a
•
comprehens permit when it could condition approval
39

•
on the tendering of a suitable plan would comply
• with standards. Board of Appeals of Hanover, Id.
•
at 381 ("Since the board could have is a permit
subject to the condition of a suitable
dispos plan and since these plans had to comply with
State standards, whatever their particular design, the
• [HAC's} decision that the board had unreasonably
rej the applicant's original plans was
warranted") . See Zoning Bd. Of Appeals of Amesbury v.
• Housing Appeals Comm., 457 Mass. 748, 765 & n. 21
•
(2010) (board does not exceed by imposing
condition of compliance with stormwater management
requirements) ."
In Hanover, Id., at p. 381, the Court also held
• demands by a board of appeals detailed plans
are unreasonable, given that compl with such
would be extremely expens and that there
• was considerable doubt whether a would be
•
is by the board even if new
were forthcoming.
Finally, there is no the Town
s more stringent protections to a buffer zone
than is provided by the WPA. Marcus testified that it
• the practice of the Sunde and Conservation
•
Commission to approve work in a zone. Marcus
40

•
Direct Testimony, A p. 284 #11. As an example, he
• cited to the approval of the American se Insurance
•
Building (directly across Route 116 from Sugarbush
Project site), consisting of 60,000 feet of
buffer zone work and the alteration of 500 square feet
of wetlands. Marcus Direct Testimony, A p. 284 #11.
• He also noted other examples Sunderland
Conservation Commission's prior approvals of buffer
zone work at the Sugarbush Project site and an abutting
• property. Marcus Direct Testimony, A p. 284 #11.
•
•
Marcus concluded the Project compl with, and is
permittable, under both the State WPA local by­
laws. Marcus Dire Testimony, A p. 284 #12.
This testimony establishes that Sugarbush also met
the alternative burden of proof as to the wetlands
issue as stated the Joint Order:
"Alternately, to prove that local requirements or
• regulations have been applied as equally as
•
possible to subs and unsubsidized ing." Joint
Pre-Hearing Order, A. p. 347; 760 CMR 5 6 . 07 (2) (a) 4 .
Therefore, Board did not meet s burden of
proof and the Superior Court was correct in affirming
• the HAC Decision Sugarbush proved prima facie
•
case and that the Board did not prove that this local
41

•
• need.
•
concern on wetlands outweighed the regional hous
5. The Superior Court was Correct in Affirming the
HAC Decision that the Board Improperly Required
Sugarbush to Pay $10,000.00 to pay for the
Services of the Board's Legal Counsel During
the Local Hearings and to Order the Board to
Reimburse it to Sugarbush
• The Board tries, unsuccessfully, to erize
the $10,000.00 as a "mere R filing as opposed to a
consultant review fee that is governed by 760 CMR
• S6.0S{S) (a), which allows a Board reviewing an
•
•
application a comprehensive
to impose
reasonable consultant review but which
speci ly states: "Legal s for general
representation of the Board or other Local Boards shall
not be imposed on the Applicant." However, as shown in
the Statement of Facts, even the Board's own
Comprehensive Permit Rules the hiring of a
• lawyer by the Board within same section of the
•
•
•
Rules which permit the Board hire other "outside
consultants" and charge the for same; Section
4.02, A p. 11. The fact that amount to be paid for
the hiring of a lawyer is included in the Section of
Board's Rules dealing with "Filing Fees," (A p. 10)
42

•
• charge.
•
does not in any way change the true nature of the
The Board submitted no evidence as to why the
nature of the legal services provided to it were due to
unusual or novel issues which might arguably pull the
legal services outside the penumbra of "General
• Representation H in the above cited Regulat Rather,
argues that an entity challenging a fee "has the
burden of proving the invalidity of the exaction,"
• citing Silva v. City of North Attleboro, 454 Mass. 165,
.'
168 (2009). However, that case is inapposite:
involved a funeral director's claim that a municipal
charge for the issuance of burial permits was an
improper tax rather than a valid regulatory fee. It did
• not involve the validity of an action by a state
administrative agency. Further, the nature of the
legal services for which the Board assessed the
• consultant review is contained expressly within the
•
Board's own Comprehensive Rules cited above: Section
3.02 states that the cost being assessed is reasonable
"for couns retained to assist the Board with the
multitude of legal issues that must be explored in the
• c. 4DB process." A pp. 10-11. Thus, the fee was
•
43

•
clearly assessed for general representation and is not
• permitted by 760 CMR 56.05(5) (a). Addendum.
•
•
•
Finally, the Board also argues that the HAC has no
authority to order the refund of the $10,000.00
payment. However, the HAC's enforcement powers are
clearly spelled out in 760 CMR 56.07(6) (d), which
states: "After the issuance of a Comprehensive Permit,
the Committee may issue such orders as may aid in the
enforcement of its decision. I a party fails to comply
• with an order issued by the Committee, may impose
appropriate sanctions, including the imposition of
costs." Ac:idendum. Further, the HAC's power to order a
refund of an improperly assessed derives from its
authority to remedy the actions of a board of appeal
• that imposes conditions f or in this case a fee, that
are impermissible under regulations carrying out
the statutory scheme. See Zoning Board of Appeals of
• Amesbury v. Housing Appeals Committee, 457 Mass. 748,
•
761-763. As stated in Amesbury, "where the focus of
the statutory enactment is one of reform, as is
indisputably true of the act, see Board of Appeals of
Hanover v. Housing Appeals Comm., 363 Mass. 339 at 347,
• 'the administ ive agency charged with its
•
implementation should construe it broadly so as to
44