[MassHistPres] Developer using 40B to advance development in LHD

[M Fenollosa]

Hi, everyone -

I believe it's still good law, though I haven't looked at this since 
2003, when the case was decided, but in Dennis Housing Corp. v. Dennis 
ZBA (439 Mass. 71, 785 N.E. 2d 682 (2003)) the court found that although 
the HDC was a "local board" entitled to /comment /on the proposed 
project, the ultimate approval authority rested with the ZBA.

 From the Headnotes for the case:

"Mass. Gen. Laws ch. 40B, § 21 provides that a qualified developer 
proposing to build low or moderate income housing may submit to the 
zoning board of appeals a single application to build such housing in 
lieu of separate applications to the applicable local boards. The zoning 
board is then to notify those "local boards" for their recommendations 
on the proposal; the zoning board may request the appearance of 
representatives of those "local boards" at the public hearing as may be 
necessary or helpful to the decision on the proposal; and the zoning 
board may take into consideration the recommendations of the local 
boards" when making its decision. Section 21. The zoning board then has 
the same power to issue permits or approvals as any local board or 
official who would otherwise act with respect to such application, and, 
in some circumstances, has the power to override requirements or 
restrictions that would normally be imposed by those local boards. Mass. 
Gen. Laws ch. 40B, §§ 20, 23. If the zoning board denies the application 
for comprehensive permit, or approves it only on conditions that make 
the project uneconomic, the applicant may appeal to the housing appeals 
committee (created by Mass. Gen. Laws 23B, § 5A), which also has the 
power to override local regulations and direct the issuance of a 
comprehensive permit. Mass. Gen. Laws ch.. 40B, §§ 22-2"

The case can be found at 
https://casetext.com/case/dennis-housing-corp-v-zoning-bd-of-app, but 
I'll try to attach a copy here.

Marilyn Fenollosa

Lexington

On 1/20/2021 1:56 PM, sally milne wrote:
> Hi.  Ward,
>     So the developer is no longer talking of demolition correct? He wants to use the building for affordable housing through the 40B process?   Is that correct?   I’d be curious. 40B overrides all the local zoning true,  but wondering if the building is in the LHD then I assume the outside of the building must be maintained following the rules of the Historic district. Can anyone comment on that?
>
> Sally Urbano
> Harwich,Mass,
>   Individually
>
>> On Jan 19, 2021, at 6:14 PM, Ward Hamilton <melrosehistcomm at gmail.com> wrote:
>>
>> In 2019, the Melrose Historical Commission led a coalition of concerned residents that opposed the demolition of the oldest commercial building (ca. 1875) in the downtown local historic district. The Historic District Commission unanimously rejected the application and all was well for the moment.
>>
>> Since then, the developer has filed a 40B application and has a hearing before the Melrose zoning board of appeals next Wednesday night, January 27th.  What can be done at this point? Anything? I'm guessing that they still need to acquire permission from the ZBA for certain variances, is that the only bargaining chip left?
>>
>> The mayor, city planner and city councilor (whose ward this is in) all support the project.  So there's no support to be found there.
>>
>>
>>
>> Ward Hamilton
>> Chairman
>> Melrose Historical Commission
>> _______________________________________________
>> MassHistPres mailing list
>> MassHistPres at cs.umb.edu
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