Zoning – Affordable housing – Scattered-site project

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Where the Dover Zoning Board of Appeals denied a comprehensive permit application, the decision of the board is unreasonable and not consistent with local needs, so the developer’s motion for summary decision should be granted.

“This is an appeal, pursuant to G.L.c. 40B, §22, and 760 CMR 56.00, et seq, brought by Robert W. Recchia (developer), from a decision of the Dover Zoning Board of Appeals (Board) denying a comprehensive permit application with respect to property located in Dover.

“On July 10, 2023, the developer submitted an application to the Board for a comprehensive permit pursuant to G.L.c. 40B, §§20-23, to construct four single-family, for-sale houses on four separate parcels located on Trout Brook Road, Edgewater Drive, and Chickering Drive in Dover, Massachusetts. One house would be reserved for sale to a low or moderate income household. …

“Counsel for the parties agree this matter involves only one issue of asserted local concern: whether the Board’s decision to deny the comprehensive permit because the proposal is for a scattered-site project is reasonable and consistent with local needs. …

“The developer argues the Committee may only uphold the Board’s denial of the comprehensive permit if it finds the community’s need for such housing is ‘outweighed by valid planning objections to the proposal based on considerations such as health, site design, and the need to preserve open space.’ … Here, it argues, the Board did not even attempt to justify its denial upon any particularized concern regarding the impact of the project; rather, the Board relied on the Committee’s decision in Farm Street Trust v. Dover, No. 2001-01 (Mass. Housing Appeals Comm. June 28, 2001) (upholding Dover denial of scattered-site project). …

“Now, thirteen years later — with a Town SHI of just 2.82% and having added only approximately 5 units of affordable housing since 2009 — the Board again asks the Committee to uphold a denial solely on that basis. We decline to do so for several reasons. …

“Chapter 40B, by its terms, does not prohibit scattered-site developments, per se, even if some resulting lots do not contain affordable units. Moreover, the developer correctly points out that six years after Farm Street was decided, the comprehensive permit regulations were amended to now require the subsidizing agency to make specific findings in evaluating project eligibility, including findings regarding the appropriateness of the project site and project design. …

“Accordingly, we rule that Farm Street is not applicable; we hold that Chapter 40B does not prohibit scattered-site developments, per se, even if some resulting lots do not contain affordable units. Instead, consideration of scattered-site projects shall be made on review of the facts of the specific project, and with a determination on a case-by-case basis of whether the Board has demonstrated a local concern that outweighs the regional need for affordable housing, without summarily foreclosing the possibility of non-contiguous (scattered-site) developments. …

“Based upon review of the entire record and upon the undisputed facts and discussion above, the Housing Appeals Committee concludes that the decision of the Board is unreasonable and not consistent with local needs. The developer’s motion for summary decision is granted. …”

Recchia v. Dover Zoning Board of Appeals (Lawyers Weekly No. 27-065-25) (24 pages) (Housing Appeals Committee) (Docket No. 2024-04) (April 24, 2025).

Click here to read the full text of the opinion.