SJC upholds rejection of housing in Newton office park

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The Supreme Judicial Court has affirmed a decision by the city of Newton to deny approval of a 334-unit residential rental unit complex, 25 percent of which would be affordable housing, in the Wells Avenue Office Park, which is zoned for limited manufacturing use.

The site is subject to a restrictive covenant owned by the city. The plaintiff, 135 Wells Avenue, LLC, the owner a 6.3-acre parcel of land in the office park, asked the city’s board of aldermen to amend the deed restriction to allow a residential use at the site. The aldermen declined.

The city’s zoning board then denied an application for a comprehensive permit to develop the mixed-income project proposed by the plantiff. The housing appeals committee affirmed the zoning board’s decision that it lacked authority to amend the deed restriction. A Land Court later ruled in favor of Newton, concluding that the SJC’s 2008 decision in Zoning Bd. of Appeals of Groton v. Housing Appeals Comm. was controlling, and that the HAC does not have authority under G.L.c. 40B to order the city to relinquish its property interest.

“On appeal, 135 Wells argues that we should conclude that the negative easement is not a property interest in land; revise our holding in Groton and conclude that the HAC does have authority to modify certain types of property interests in land; or, in the alternative, determine that the purposes for which the restrictive covenant was enacted are now incapable of being attained, and, consequently, that the restrictive covenant should be declared null and void,” Justice Frank M. Gaziano wrote for the SJC.

“We decline each of these suggestions and affirm the judge’s decision granting judgment on the pleadings to the defendants,” Gaziano stated.

The 25-page decision is 135 Wells Avenue, LLC v. Housing Appeals Committee, et al., Lawyers Weekly No. 10-184-17.

Click here to read the full text of the opinion.