Zoning – Affordable housing – Safe harbor

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Where the Executive Office of Housing and Livable Communities found that the Oak Bluffs zoning board did not establish a safe harbor under 760 CMR 56.03(1)(b), (4)(c) and (4)(f) for its housing production plan (HPP), that determination should be upheld because certification of the town’s HPP had been suspended as of the date of a developer’s comprehensive permit application.

“This case is an interlocutory appeal brought by the Oak Bluffs Zoning Board of Appeals (Board) pursuant to 760 CMR 56.03(8)(c) in connection with a comprehensive permit application to the Board by MV Green Villa, LLC, and Atwood GV, LLC (Green Villa or developer) for a mixed-use development in Oak Bluffs. The Board appeals the determination by the Executive Office of Housing and Livable Communities (EOHLC), dated July 24, 2024, that the Board had not established a safe harbor under 760 CMR 56.03(1)(b), (4)(c) and (4)(f) for its housing production plan (HPP) because certification of the Town’s HPP as of the date of the comprehensive permit application had been suspended.

“The Board appealed the EOHLC determination to the Housing Appeals Committee on August 12, 2024. Following an initial conference of counsel, it moved for summary decision on September 30, 2024. It does not challenge the status of the Town’s HPP certification. Instead, it contends that ‘the date of a Project’s application,’ as that term is used in 760 CMR 56.03(8)(b), should be deemed, for projects proposed on Martha’s Vineyard, to be the date of any forthcoming action of a project by the Martha’s Vineyard Commission (MVC) pursuant to Chapter 831 of the Acts of 1977, as amended (MVC Act) with respect to the comprehensive permit application. …

“For the reasons discussed below, the Board’s motion for summary decision is denied, and the developer’s cross-motion for summary decision is granted. …

“The parties dispute whether the phrase ‘the date of a Project’s application,’ as it is used in 760 CMR 56.03(8)(b), should be the date on which the MVC approves the project or the date on which the developer filed its comprehensive permit application with the Board. Pursuant to 760 CMR 56.03(1)(b), a comprehensive permit decision of a board of appeals is deemed consistent with local needs as a matter of law, if, as of the date of the project’s application for the comprehensive permit, EOHLC has certified the municipality’s compliance with the goals of its approved housing production plan, in accordance with 760 CMR 56.03(4). Therefore, the question raised by the Board is whether the applicable (or operative) date for determining the Town’s safe harbor status is the date on which the developer’s comprehensive permit application was filed with the Oak Bluffs Town Clerk, or whether the MVC Act requires that the application date be construed as the date on which the MVC review is complete. …

“For purposes of determining safe harbor eligibility, there can only be one operative date, uniformly applied to all 351 cities and towns of the Commonwealth, the determination of which is not dependent upon the MVC’s review of the project. Therefore, the operative date for determining whether a municipality subject to the MVC Act has achieved a statutory or regulatory safe harbor is the date of the comprehensive permit application. Accordingly, the date for determining the Town’s safe harbor status is the date on which the developer’s comprehensive permit application was filed with the Board, May 20, 2024. …

“There is no dispute that, on July 9, 2024, EOHLC issued a letter to the Town suspending its safe harbor status as of May 17, 2024, because the Southern Tier project had not secured a building permit within one year of the issuance of its comprehensive permit. … Having concluded that the operative date to determine Oak Bluffs’ safe harbor status under 760 CMR 56.03(1)(b) and 56.03(4)(c) & (f), Certified Housing Production Plan, is May 20, 2024, and the Town’s safe harbor status was suspended as of May 17, 2024, I conclude that the Board’s claim of safe harbor based on certification of its HPP fails. …

“Based on the foregoing, the Board is not entitled to a safe harbor under 760 CMR 56.03(1)(b), (4)(c) and (4)(f). Accordingly, the Board’s motion for summary decision is denied. The developer’s cross-motion for summary decision is granted. This matter is remanded to the Board for continuation of proceedings on the comprehensive permit application.”

In the Matter of Oak Bluffs Zoning Board of Appeals (Lawyers Weekly No. 27-064-25) (10 pages) (Whelan, Presiding Officer) (Housing Appeals Committee) (Docket No. 2024-08) (April 24, 2025).

Click here to read the full text of the opinion.