“We have long recognized that the Legislature's intent in enacting [the act] is ‘to provide relief from exclusionary zoning practices which prevented the construction of badly needed low and moderate income housing’ in the Commonwealth.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 28–29, 849 N.E.2d 197 (2006), quoting Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 354, 294 N.E.2d 393 (1973). “The structure of the act itself reflects a ‘careful balance between leaving to local authorities their well-recognized autonomy generally to establish local zoning requirements ... while foreclosing municipalities from obstructing the building of a minimum level of housing affordable to persons of low income.’ ”
In determining whether to issue a comprehensive permit, the ZBA has the "same power to issue permits or approvals as any local board or official who would otherwise act with respect to such application," including the power to impose various conditions on the proposed development. G.L.c. 40B, § 21. Not only does the ZBA, in evaluating a comprehensive permit application, have the power to issue whatever permits or approvals are needed to commence construction, but the ZBA also has the power to override local zoning by-laws and ordinances when they are not "consistent with local needs," as that phrase is defined in G.L.c. 40B, § 20. Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 354-55 (1973). When the ZBA denies a comprehensive permit application, the applicant may appeal the denial to the HAC, which reviews the denial and issues a written decision.
Zoning Bd. of Appeals of Wellesley v. Ardemore Apartments Ltd. Partnership, 436 Mass. 811, 814, 767 N.E.2d 584 (2002)( Wellesley II ). “We have long recognized that the Legislature's intent in enacting [the act] is ‘to provide relief from exclusionary zoning practices which prevented the construction of badly needed low and moderate income housing’ in the Commonwealth.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 28–29, 849 N.E.2d 197 (2006), quoting Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 354, 294 N.E.2d 393 (1973). “The structure of the act itself reflects a ‘careful balance between leaving to local authorities their well-recognized autonomy generally to establish local zoning requirements ... while foreclosing municipalities from obstructing the building of a minimum level of housing affordable to persons of low income.’ ”
In order to place them in context, we describe briefly the relevant portions of the act, inserted by St. 1969, c. 774, "which [have] been thoroughly canvassed in earlier opinions." Middleborough v. Housing Appeals Comm., 449 Mass. 514, 516 (2007), citing Dennis Hous. Corp. v. Zoning Bd. of Appeals of Dennis, 439 Mass. 71, 76-78 (2003), and Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 347-354 (1973). The primary purpose of the act is "to provide relief from exclusionary zoning practices which prevent[] the construction of badly needed low and moderate income housing."
1. The statutory scheme. Although other Massachusetts appellate decisions have described the provisions of the comprehensive zoning law, see, e.g., Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 (1973) (upholding constitutionality of statute); Zoning Bd. of Appeals of Greenfield v. Housing Appeals Comm., 15 Mass. App. Ct. 553, 555-557 (1983) (discussing statutory and regulatory scheme), a brief overview of the relevant provisions is helpful. General Laws c. 40B, §§ 20-23, sometimes referred to as the anti-snob zoning act, id. at 555, was enacted "to provide relief from exclusionary zoning practices which prevented the construction of badly needed low and moderate income housing."
1. General Laws c. 40B, §§ 20-23 (the Act), and the regulations adopted thereunder, 760 Code Mass.Regs. §§ 30.02 et seq. (1993), were enacted and promulgated to provide relief from exclusive zoning practices which prevented construction of badly needed low and moderate income housing. Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 353-54 (1973). 2.
We add the word " generally" because the board may override a local regulation or requirement-such as a zoning provision-if it finds that the requirement is not " consistent with local needs." See Mahoney v. Board of Appeals of Winchester, 366 Mass. 228, 232-233, 316 N.E.2d 606 (1974), appeal dismissed, 420 U.S. 903, 95 S.Ct. 822, 42 L.Ed.2d 834 (1975), quoting Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 354, 294 N.E.2d 393 (1973). See also Dennis Hous. Corp. v. Zoning Bd. of Appeals of Dennis, 439 Mass. 71, 77, 785 N.E.2d 682 (2003).
We note, however, that boards may impose conditions that do not render a project uneconomic. See G.L. c.40B, §§ 21 –23 ; Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 373, 294 N.E.2d 393 (1973). Particularly where the board is waiving local, more restrictive components of its bylaw, it may well have concluded that compliance with DEP stormwater regulations is necessary to protect the groundwater.
Where, as here, the town has not achieved the ten percent minimum by the prescribed date, see 760 Code Mass. Regs. § 31.04(1)(a), there shall be a rebuttable presumption that there is a "substantial regional housing need which outweighs local concerns." 760 Code Mass. Regs. § 31.07(e), citing Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 367 (1973) ( Hanover). Where the town attempts to rebut the presumption, 760 Code Mass. Regs. § 31.07(2) prescribes the factors to be considered in balancing the housing need (that is, the proportion of low income residents in the town or region) against the local concerns.
The board of appeals of North Andover brings this appeal from a judgment of the Superior Court which affirmed a decision by the Housing Appeals Committee ordering the board (under G.L.c. 40B, § 23) to issue a comprehensive permit for the construction of 230 units of low and moderate income housing. The only contention made by the board in this court which has not already been decided adversely to it in Board of Appeals of Hanover v. Housing Appeals Comm. 363 Mass. 339 (1973) (the Hanover case), or been waived by it is that one of the conditions contained in the order of the Housing Appeals Committee is invalid because it conflicts with provisions of the State Building Code and the law under which it was promulgated. We refer particularly to its argument that the defendant Planning Office for Urban Affairs, Inc., is not a proper applicant for a comprehensive permit under G.L.c. 40B, § 21.