Opinion
15-P-481
03-03-2016
ZONING BOARD OF APPEALS OF LUNENBURG & another v. HOLLIS HILLS, LLC, & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The zoning board of appeals of Lunenburg (board) appeals from a judgment of the Superior Court affirming the determination by the Housing Appeals Committee (HAC) of the sewer fees applicable to the affordable housing development of Hollis Hills, LLC (Hollis Hills). Substantially for the reasons stated by the motion judge, we affirm.
On February 13, 2006, Hollis Hills submitted an application to the board for a comprehensive permit pursuant to G. L. c. 40B, §§ 20-23, for the construction of attached townhouses holding 146 condominium units (later reduced to 136 units). The board denied the application but on Hollis Hills's appeal, the HAC instructed the board to issue a comprehensive permit. The board appealed under G. L. c. 30A, first to the Superior Court and then to the Supreme Judicial Court. Both courts affirmed the HAC decision. Zoning Bd. of Appeals of Lunenburg v. Housing Appeals Comm., 464 Mass. 38, 39 (2013). With regard to sewer-related fees, the original HAC decision determined that "barring any change in [S]tate law requirements no sewer privilege fee or sewer betterment fee may be applied to Hollis Hills if it is based on a local rule adopted subsequent to February 13, 2006, the date Hollis Hills' comprehensive permit application was submitted to the [b]oard." Neither party appealed from this portion of the HAC decision.
While the original c. 30A appeal was pending, Hollis Hills opted to proceed with the development pursuant to the comprehensive permit ordered by the HAC and, to that end, sought a building permit from the building inspector. The building inspector declined to grant a building permit in part because Hollis Hills had not paid the sewer privilege fee. The town of Lunenburg (town) assessed sewer charges totaling $1,809,150, including a sewer privilege fee of $11,551 per unit (totaling $1,571,000) and a connection charge of $1,760 per building and $550 for each bedroom in excess of three bedrooms (totaling $238,150). Claiming it owed only a $17,000 fee, Hollis Hills sought an enforcement order from the HAC. The HAC declined to issue an immediate enforcement order, concluding that an evidentiary hearing on the applicability of all of the sewer fees was warranted.
A prehearing order dated January 19, 2012, set out the issues for determination as agreed to by the parties. They were (1) "[w]hether the [t]own had legally adopted a local bylaw or rule regarding the assessment of a sewer privilege fee that was in effect as of the date of Hollis Hills' application for a comprehensive permit"; (2) "[w]hether the local rule, by its terms, requires the payment of a sewer privilege fee by Hollis Hills and if so, the amount of such a fee"; (3) "[w]hether the fee would render the project uneconomic"; (4) "[w]hether the fee constitutes a valid local concern that outweighs the need for affordable housing"; and (5) "[w]hether the [t]own has subjected Hollis Hills to unequal treatment in assessing the fee." The order also provided that the board bore the burden of proof as to issues 1, 2, and 4, while Hollis Hills bore the burden on issues 3 and 5.
The prehearing order also provides that it "formalizes matters agreed to by the parties at and following the Pre-Hearing Conference occurring on November 30, 2011 and January 5, 2012," and that, for good cause shown, either party may request modification of the order, including modification of the issues in dispute.
Following submission of prefiled testimony and a one-day hearing, the HAC determined that the only valid sewer charges for the project are those set forth in the town's 2005 sewer use regulation, § 147-5.A., which provides for sewer inspection and connection fees totaling $125 per unit or $17,000 for the project, and limited the town to that sewer charge. On appeal to the Superior Court under G. L. c. 30A, the board and the town argued that (i) the HAC committed an error of law when it concluded that the board could only impose requirements and regulations that were in effect on February 13, 2006, when the comprehensive permit application was submitted, (ii) the HAC committed error of law when it placed the burden of proof on the board to establish the validity of the sewer requirements and regulations prior to February 13, 2006, and (iii) the HAC lacked jurisdiction to declare that the requirements and regulations were invalid prior to February 13, 2006.
The Superior Court judge denied the motion of the board and the town for judgment on the pleadings, concluding that they had waived their three enumerated arguments by not raising them before the HAC (and by not raising the first in the board's initial c. 30A appeal). The judge also denied the HAC's cross motion to dismiss, which argued that the Superior Court lacks jurisdiction to hear an appeal from an enforcement order; the judge concluded the latest HAC hearing was not an enforcement hearing but a continuation of the original comprehensive permit proceeding, over which the Superior Court has jurisdiction. The judge thus affirmed the decision of the HAC, and the board and the town further appeal to this court.
Discussion. We first note that on appeal, the HAC persists in its argument that the judge should have dismissed the G. L. c. 30A complaint because the Superior Court lacks jurisdiction to hear an appeal of an enforcement order. The HAC's position is curious given that its "Post-Decision Ruling and Order Regarding Applicable Sewer Fees" expressly states that "[t]his ruling and order may be reviewed in accordance with the provisions of G. L. c. 40B, § 22 and G. L. c. 30A by instituting an action in the Superior Court within 30 days of receipt of the ruling." Moreover, if, as the judge determined, the proceedings before the HAC are considered a continuation of the original comprehensive permit hearing, the Superior Court had jurisdiction pursuant to G. L. c. 40B, § 22, and c. 30A. If the matter is considered an appeal from an enforcement order, the Superior Court properly exercised jurisdiction pursuant to G. L. c. 185, § 3A, third par. Accordingly, we discern no jurisdictional impediment to the Superior Court's, or our own, consideration of this matter.
Compare Zoning Bd. of Appeals of Scituate v. Herring Brook Meadow, LLC (No. 2), 84 Mass. App. Ct. 1132 (2014).
We need not dwell on whether the applicable standard of review differs in the two types of appeals, because we agree with the judge that the board and the town waived the arguments they raised on appeal to the Superior Court.
We agree with the Superior Court judge that the three arguments the board and the town raised on appeal to the Superior Court had been waived. First, the board's failure to appeal from the determination in the original HAC decision that no fee provisions adopted after February 13, 2006, may be applied to the project clearly precludes the argument to the Superior Court and to this court that the HAC erred in concluding that the board could impose only requirements and regulations that were in effect when Hollis Hills filed its application.
The prehearing order specifically stated that the parties agreed on the statement of issues and which party would bear the burden of proof on each issue. Despite the order's clear delineation of the issues, the board did not challenge the HAC's jurisdiction to determine whether valid sewer fee regulations had been adopted prior to February 13, 2006. Indeed, in its posthearing brief the board expressly stated it "does not contest the justiciability of Issue #1 (whether the subject fee provisions were indeed in effect as of Hollis Hills'[] application date) and Issue #2." Citing First Natl. Bank v. Haufler, 377 Mass. 209, 211 (1979), the board and the town concede at pages twenty-one to twenty-two of their brief that a party is not entitled to review of an issue not presented to the administrative agency or court below. It is disingenuous for the board to now claim that it did not waive the issues.
The prehearing order also indicates the parties agreed to the applicable burdens of proof. Again, the record does not reflect that the board challenged the prehearing order placing the burden on it to prove that valid sewer fee regulations had been adopted prior to February 13, 2006. We agree that the board waived the issue by not raising it before the HAC and proceeding as though it bore the burden. Furthermore, the HAC did not purport to invalidate any of the town's regulations; it decided simply that in this case, other than a charge of $125 per unit, no validly adopted sewer charge applies to the project. That this determination required the HAC to consider whether the town validly had adopted fees does not mean the HAC "invalidated" any town regulations.
On appeal, the board and town contend the board also argued that the regulations were entitled to a presumption of validity. Again, we do not see that the board made that argument to the HAC and it is, therefore, waived.
Finally, the board and the town argue that because such large amounts of money are at issue, the Superior Court judge should have addressed issues that the board had not presented to the HAC. See Normand v. Director of Office of Medicaid, 77 Mass. App. Ct. 634, 643-644 (2010) (fundamental justice may require consideration of waived issue). See also Stop & Shop Supermarket Co. v. Loomer, 65 Mass. App. Ct. 169, 172 (2005) (court may exercise discretion to consider question on merits where injustice might otherwise result). To be sure, the fees the board seeks to charge Hollis Hills are significant, exceeding $1.8 million. Given the public interest inherent in affordable housing developments and the absence of any evidence of actual costs or harm to the town, however, we cannot say the board and the town have shown this is a proper instance for the judge to have exercised her discretion to consider the merits of the waived issues.
Judgment affirmed.
By the Court (Cohen, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 3, 2016.