Rather than deny a comprehensive permit outright, zoning boards increasingly have been granting comprehensive permits subject to numerous, and sometimes onerous, conditions. Generally, developers have been able to strike such conditions only if they render the project uneconomic. Occasionally, the Housing Appeals Committee has removed conditions that were overtly improper. In its September 2, 2010 decision in Zoning Board of Appeals of Amesbury v. Housing Appeals Committee (pdf), the Supreme Judicial Court (SJC) places some limitations on the latitude of zoning boards to impose conditions on a comprehensive permit. This decision sends a clear message to zoning boards that conditions attached to a comprehensive permit must be directly related to issues typically of concern to local boards and commissions.
The SJC ruled that the Amesbury Zoning Board’s power to impose conditions in connection with the grant of a comprehensive permit is limited to the types of conditions that local boards might otherwise impose, such as conditions relating to health, safety and the environment. The court rejected the Board’s attempt to regulate programmatic aspects of the Comprehensive Permit program that are typically the responsibility of the subsidizing agency. In addition to not rendering a project uneconomic, in order to be upheld, a condition must be within the scope of concern of local boards. The court also confirmed that the HAC is authorized in the first instance to strike conditions that are not within the Board’s power to impose, even where such conditions do not render the project uneconomic.
Because the HAC decision did not determine precisely which conditions should be vacated, modified or retained, the court remanded the matter to the HAC for clarification.
Note that there is an initiative petition to repeal Chapter 40B, the comprehensive permit law, on the ballot in November. The petition language specifically grandfathers those comprehensive permit projects for which a building permit for at least one dwelling unit has issued prior to January 1, 2011. In an attempt to delay issuance of a building permit, and thwart developers from obtaining grandfathered status for approved projects, zoning boards may be tempted to issue comprehensive permits that are loaded with conditions designed to prevent developers from obtaining a building permit in a timely manner. As this plays out over the next 2 months, it will be interesting to see how the HAC and the courts react.