Whether the Housing Appeals Committee had power to strike down conditions imposed by a zoning board of appeals, on the ground that the board lacked authority to impose the conditions.

Attitash, a developer, applied to the zoning board of appeals for the city of Amesbury for a comprehensive permit to develop low income housing. The board granted the application with a number of conditions. The conditions would essentially put the board in an oversight position, overlapping with the position ordinarily occupied by the state-level subsidizing agency (in this case MassHousing).

Attitash appealed to the Housing Appeals Committee (“HAC”), which struck the offending conditions, ruling that they were not within the board’s lawful authority to impose. The board appealed, a Superior Court judge upheld the HAC’s decision, and the SJC transferred the board’s appeal sua sponte from the Appeals Court.

1. HAC’s authority to strike unlawful conditions. The central issue is whether the HAC is empowered to strike conditions where the board exceeded its lawful authority.
   
   “The committee is empowered to ‘order [the] board to modify or remove … [a] condition or requirement’ only when the board’s decision ‘makes the building or operation of such housing uneconomic and is not consistent with local needs’ (emphasis added).” Woburn v. Housing Appeals Committee, 451 Mass. 581, 593 (2008), quoting G.L. c. 40B, § 23. The board argues that the question of its lawful authority to impose the conditions at issue is simply irrelevant to the HAC’s review, and thus an improper basis for the HAC’s decision.
   
   The HAC argues, essentially, that it can only review decisions properly issued, and so the question of the board’s authority is a necessary preliminary determination, implied by the structure of the statute. The HAC raises the specter of a board imposing racially discriminatory conditions and escaping review.
   
   
2. Alternative basis for the HAC’s decision. If the Court determines that the HAC does not have power to strike conditions on the independent basis that they exceed the board’s authority, it will have to determine whether remand is necessary, or whether the HAC validly and independently determined that the requirements made the proposed development uneconomic and were not consistent with local needs.
   
   
3. The board’s authority. Conversely, if the Court determines that HAC does have the power to strike unlawful conditions, it will have to determine whether the board has the power to issue the conditions at issue, pursuant to G.L. c. 40b, § 21. The HAC argues that the board can only impose conditions that might be imposed by the local boards and officials it supersedes, and that the conditions here do not meet that test.

This case is a power struggle, on the one hand, between the city of Amesbury’s board and the HAC, and on the other hand, between the board and MassHousing. The board is likely to win its battle with the HAC: G.L. c. 40B, § 23 explicitly limits the HAC’s review, and the recent case of Woburn acknowledges that limit. Unlawful conditions remain appealable to the Superior Court, and it would be up to the Legislature to shift responsibility to the HAC if it chose. The most probable outcome is therefore remand to the HAC to consider the board’s decision within proper boundaries.

The longterm outcome of the power struggle between the board and MassHousing is less clear. The board claims that the state agencies are ineffective at enforcing affordable housing rules, and that it is legitimately attempting to strengthen those rules. The developer claims that the board is trying to make affordable development entirely impossible by intruding on areas of state expertise with an extra layer of bureaucracy. If MassHousing refuses to finance projects with the board’s limitations (as it has indicated it will do), the HAC can justifiably find that the projects are rendered economically unviable. It will then have to decide whether the limitations are consistent with local needs — which may in turn require it to decide whether the board is correct that MassHousing’s oversight is insufficient.