Massachusetts Lawyer Blog

Massachusetts affordable housing projects under M.G.L. Ch. 40B are often criticized for limiting a local board’s powers to regulate development in a city or town. Proponents, on the other hand, argue the law helps promote new affordable housing developments. It is not uncommon for 40B projects to make headlines in local papers and for developers, municipalities, residents, and interest groups to be outspoken on this issue.

Regardless of one’s position on 40B, there are fundamental questions of power and legal authority that arise. Local boards and authorities are likely to applaud a recent SJC opinion concerning 40B and easements.

The Massachusetts Supreme Judicial Court (SJC) ruled the Housing Appeals Committee (Committee) of the Department of Housing and Community Development exceeded its authority under G.L. c. 40B (Affordable Housing Act) by ordering conveyance of a sight line easement on a town's property. This case establishes the Committee has the power to grant permits or approvals like a local board, but not the power to order the conveyance of an easement.

The opinion reasons, an easement is an interest in land which grants to one person the right to use or enjoy land owned by another; the grant of an easement constitutes the transfer of an interest in land; the fact that an easement may encumber only a small portion of an owner's land does not change its legal significance; and the Act does not authorize the Committee to order the conveyance of an easement over land abutting the project site of a proposed affordable housing development.

The SJC distinguished this decision from Board of Appeals of Maynard v. Housing Appeals Comm., 370 Mass. 64 (1976)>. The Maynard case involved the extension of a sewer line (under G.L. c. 83), for which the developer, and not the public, agreed to bear all costs – it did not involve, nor authorize, the transfer of an interest in municipal land in the form of a mandated easement.

See Slip Opinion: SJC-10028 until published, Zoning Board of Appeals of Groton & others vs. Housing Appeals Committee and another.