Zoning – Affordable housing – Safe harbor

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Where applications for comprehensive permits under G.L.c. 40B were denied by the Braintree zoning board, a decision by the Housing Appeals Committee reversing the board should be affirmed because the town did not establish that it qualified for the 1.5 percent safe harbor, nor did the HAC err in rejecting the board’s denials based upon open space and fire safety concerns.

“This case involves applications for comprehensive permits under G.L.c. 40B. The applicant, 383 Washington Street, LLC (developer), seeks to develop two adjacent properties in Braintree — proposing on one property an eight-unit townhouse, and on the other, a seventy-unit apartment building. Certain of the units in each development will be dedicated for low or moderate income housing. The developer invoked chapter 40B in an attempt to streamline the local permitting process. … That effort initially failed, as the zoning board of appeals of Braintree (board) denied the comprehensive permits. The denials were thereafter reversed on appeal by the housing appeals committee (HAC), so as the case reaches this court, the board has been ordered to issue the comprehensive permits.

“The case presents issues, in particular, regarding how to calculate the so-called ‘safe harbor’ under G.L.c. 40B, §20, that is afforded to cities and towns that achieve a 1.5 percent threshold for land area dedicated to low or moderate income housing (sometimes called the ‘general land area minimum’ or ‘GLAM’ provision). … In the proceedings below the board took the position that the town of Braintree (town or Braintree) had satisfied the statutory ‘safe harbor,’ and that accordingly any denial of the comprehensive permits by the board must be upheld as a matter of law. On appeal, the HAC denied the board’s claim to the safe harbor, and thereafter ruled that the permits must issue. A Superior Court judge upheld the HAC decisions.

“On appeal to this court the board continues to press that it had achieved the 1.5 percent threshold, thereby validating the denial of the comprehensive permits as a matter of law. The board also argues, in the alternative, that the permits were properly denied based upon Braintree land use regulations that were ‘consistent with local needs’ — in particular, that the proposed projects failed to comply with open space, or ‘open recreational space,’ requirements, and that one project failed to make adequate provision for fire safety.

“As discussed below, we affirm the rulings of the HAC (and the Superior Court judge). Braintree did not establish that it qualified for the 1.5 percent safe harbor, nor do we perceive error in the HAC’s rejection of the board’s denials based upon open space and fire safety concerns.”

Zoning Board of Appeals of Braintree v. 383 Washington Street, LLC, et al. (and a consolidated case) (Lawyers Weekly No. 11-038-25) (23 pages) (Englander, J.) The cases were heard by Joseph F. Leighton Jr., J., on motions for judgment on the pleadings. Roger L. Smerage (Carolyn M. Murray also present) for the plaintiff; Peter L. Freeman for 383 Washington Street, LLC; John R. Hitt for Department of Housing and Community Development and another (Docket No. 23-P-1213) (June 18, 2025).

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