Real Estate & Property Law

Town must reach merits of 40B application before determining local need

By Stephen E. Meltzer, Esquire

The Appeals Court has determined that the Town of Wrentham inappropriately denied a 40B (Comprehensive Permit) Application without even assessing the merits of the application.  The town denied the permit summarily based upon the fact that it had met the 10% threshhold. 

The Court found that the town must first hold a hearing and determine, as part of a complete review of the application, whether the proposal is "consistent with local needs."  Having met the threshhold creates the presumption, but does not preclude the necessity for hearing the merits of the application. 

The statutory language also vests jurisdiction to appeal the denial to hear the merits of the application based on the summary determination of local need in the Housing Appeals Committee (HAC).

As a part of its review, the HAC determined that the Town of Wrentham inappropriately included "residents at the Wrentham Developmental Center (WDC), a facility owned and operated by the Department of Retardation (DMR) to provide services for the mentally disabled including diagnostic, training, school, residential, and employment services" when calculating the number of affordable units in town.

The Appeals Court decided that judicial review of that determination was premature because the HAC has merely remanded the application for consideration by the town on its merits, and has not ordered issuance.  Therefore the HAC's order is not final and not yet ripe for review.

The case is Town of Wrentham v. Housing Appeals Committee, 06-P-587 (June 27, 2007) and can be found HERE.

Full post as published by Meltzer Law Offices on June 27, 2007 (boomark / email).