Summary
holding that site control was not issue to be decided by HAC and that HAC could not act on abutter's claim that comprehensive permit application should have been denied in first instance
Summary of this case from Cserr v. Zoning Bd. of Appeals of DightonOpinion
16-P-786
05-03-2017
Robert CSERR v. BRUCE, LLC, & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Robert Cserr, appeals from a judgment of the Superior Court that affirmed a decision of the housing appeals committee of the Department of Housing and Community Development (committee). We affirm.
Background. In 2003, defendant Bruce, LLC (Bruce), was granted a comprehensive permit to construct an affordable housing development in Dighton. Cserr appealed the permit contending that he owned a portion of a road under which Bruce planned to run sewer and water lines. In 2007, that appeal was dismissed by agreement. From 2010 to 2012, Bruce was granted three consecutive permit extensions for the development. Cserr appealed each extension. In May of 2013, Bruce was denied a fourth extension. It appealed to the committee, pursuant to G. L. c. 40B, § 22. Cserr was permitted to intervene. On May 7, 2014, the committee issued a decision in favor of Bruce in which it determined that Cserr's appeal of the first permit extension tolled the three-year time period within which Bruce would have been required to commence construction. Accordingly, the committee found that the 2010 extension remained in effect pending final judgment on Cserr's appeal in the Superior Court. The committee declined to address the question whether Bruce had sufficient site control over the project, a challenge raised by Cserr. The committee explained that Bruce's receipt of the subsidizing agency determination indicating it was eligible for a comprehensive permit resolved the issue as a matter of law. Cserr appealed the committee's decision to the Superior Court. Cserr moved, and the committee cross-moved for judgment on the pleadings. A judge of the Superior Court denied Cserr's motion and ordered the entry of judgment in favor of the defendants. This appeal followed.
These actions were stayed pending the resolution of this appeal, pursuant to Taylor v. Board of Appeals of Lexington, 451 Mass. 270, 278 (2008).
Discussion. The Comprehensive Permit Act (act), G. L. c. 40B, §§ 20 - 23, was created to address the Statewide shortage of affordable housing. In carrying out its mandate, the act streamlines permitting for low- and moderate-income housing. It also provides an administrative appeal to the committee for its consideration of appeals regarding the denial of, or conditions placed upon, permits. G. L. c. 40B, § 22. The committee is limited by statute as to the issues it may consider and the relief it can grant. See G. L. c. 40B, § 23. Here, Cserr has raised a challenge to Bruce's control of the proposed project site. However, site control is an issue to be determined by the subsidizing agency for the purpose of demonstrating eligibility for the funding of a project. Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 378 (1973). It is, therefore, not an issue to be determined by the committee.
The purpose of the act is to remedy unlawful denials of, or conditions placed upon, permits, with an objective to increase affordable housing. Taylor v. Board of Appeals of Lexington, 451 Mass. 270, 275-276 (2008). As such, permits granted by a zoning board of appeals cannot be revoked by the committee. Id. at 276. Nor can the committee act on an abutter's claim that the application should have been denied in the first instance. Ibid.
Finally, there is nothing in the act that permits the committee to adjudicate disputes concerning private property rights. The committee's expertise is grounded in the review of permitting and conditions with respect to local housing. It is not in the area of disputed real property claims.
Assuming, however, that the committee could have acted on Cserr's claims, he would fare no better. The subsidizing agency's determination served as exclusive proof of site control, both as to consideration by the zoning board of appeals and as to the committee, pursuant to 760 Code Mass. Regs. § 56.04(6) (2012).
Notwithstanding the grant of intervener status, the committee is not the method to resolve Cserr's claims. Without expressing an opinion as to the merits of any future actions, Cserr has other available options to assert his claims concerning the road in question.
Finally, the committee's decision to retain jurisdiction of this matter is of no moment as it agreed in its brief to relinquish jurisdiction. Accordingly, we need not reach the merits of that argument.
We deny Bruce's request for appellate attorney's fees.
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Judgment affirmed.