Ending years of legal tussling, the state Supreme Judicial Court has overturned a lower court ruling allowing a developer easement rights over town property, dismantling a builder's plans for a 44-unit housing project on land off Lowell Road.
Robert Cadle, chairman of the Groton Zoning Board of Appeals, said last week that the decision isn't simply a local victory for the town and its property rights, it's also a significant step for protecting the rights of municipalities across the state that, he said, had been threatened by the previous ruling.
In the earlier ruling, the state's Housing Appeals Committee had mandated that the town provide easement access over its property to enable the development project to move forward. The SJC disagreed, saying the committee did not have the authority to preempt a town's right to grant an easement across its property. Normally, Town Meeting must sanction such access across public property.
Cadle said the committee decision had set a precarious legal precedent for cities and towns.
"If that decision had been allowed to stand, it could have caused a lot of problems for a lot of different municipalities," he said. "If the [committee] had the power to take property from towns, it could have been a potentially big mess."
The decision also had been criticized by the City Solicitors and Town Counsel Association, a group of Massachusetts municipal attorneys that wrote a brief to the SJC requesting that it overturn the ruling.
James Lampke, executive director of the association, said his organization believes the committee overstepped its legal boundaries with the Groton decision, tiptoeing around the rights of voters and municipalities.
"We certainly supported the town's position, and we certainly are happy that the [SJC] acknowledged that the [Housing Appeals Committee] had way exceeded its authority," said Lampke.
For Groton, the decision has immediate and tangible effects, since the 44-unit project is, at least for the time being, derailed. Developer Washington Green LLC required the easement across a 2-acre, town-owned property, where a municipal electric substation sits, as a second access road and for clearing vegetation blocking a clear sight line for cars exiting onto Lowell Road.
Ray Lyons, a lawyer who represents Washington Green, said the developer is investigating its options for what it will do next.
"The town could authorize the additional sight lines the [Housing Appeals Committee] ordered, but that seems extremely unlikely after such a long legal battle," Lyons stated in an e-mail last week. "The developer is reviewing its options and may come forward with a different proposal, but it's too soon to offer any comments about those discussions."
Filed under Chapter 40B, the state's affordable-housing law, the project had been an "adversarial" one between local officials and the developer before the legal action erupted, said Lyons.
The controversial statute enables developers to trump local zoning if the municipality has less than 10 percent of its housing stock in affordable housing and if the developer is willing to designate a certain percentage of the development as affordable. The law was designed by legislators as a disciplinary tool on communities lacking sufficient affordable housing.
Lyons said the action taken by the town may have been in reaction to a number of developers taking advantage of the law.
"Certainly, three to four years ago, when this proposal switched from being a town-friendly 40B to an adversarial one, the town was being bombarded with 40B applications," Lyons said. "Perhaps [the town] felt the need to contest at least one."
The SJC's decision on the Groton case marked the first ruling on seven 40B cases that the judges heard in a single week in February, a sign that the 1969 law continues to provoke questions from all sides. Two other rulings quickly followed this month, on cases from Lexington and Canton that dealt with the question of when to calculate a community's affordable-housing percentage to see if the zoning relief under 40B remains available.
In both the Lexington and Canton cases, the judges sided with developers, ruling that communities could not disqualify pending 40B applications by approving other, more favorable 40B projects to put them past the 10-percent mark.
In Groton, Cadle said local officials had numerous objections to the project besides the easement issue. He said the substation potentially posed a safety threat to children and the development also had wetlands issues.
The Housing Appeals Committee's ruling surprised local officials, Cadle said.
"They gave an easement over the town's land," he said. "I wasn't aware of that ever being done before."
Lampke said the SJC ruling is also significant in showing that the Chapter 40B law is not all-encompassing in its ability to override local zoning. "We are pleased that the court recognized that, as broad as 40B is, there are still certain municipal rights."
Matt Gunderson can be reached at email@example.com.
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