Superior Court Rejects State Housing Appeals Committee’s Narrow Interpretation of Standing in Chapter 40B Cases.
In a victory for the Nantucket Land Council (NLC) and similar land conservation groups, the Nantucket Superior Court ruled on June 22, 2021, that the Housing Appeals Committee (“HAC”) had erred when it denied the NLC the ability to intervene in their review of a comprehensive permit granted to a developer of a housing development under Chapter 40B.
History:
Developer Nantucket Surfside, LLC appealed to the HAC in 2019 in order to expand its development beyond the scope allowed by Nantucket Zoning Board of Appeals in the conditions of their comprehensive permit. The Nantucket Land Council, a nonprofit environmental organization represented by Hill Law, has been an active voice of concern since the beginning of the project. The NLC asserts that the land the developer plans to clear-cut is crucial habitat for rare and endangered species on Nantucket, including many plants and animals such as the Northern Long-Eared Bat, a state-listed endangered species.
The Decision:
NLC was initially denied the right to intervene in the HAC’s administrative proceedings based on the mistaken assertion that the preservation of open space is not an interest protected by the Chapter 40B housing statute. The Nantucket Superior Court’s decision corrected the HAC’s “abuse of discretion and error of law”, holding unequivocally that “Chapter 40B does protect interests in preservation of open space.” (6/22/21 Ruling, p. 13, 18)
In addition to recognizing the preservation of open space as a protected legal interest under Chapter 40B, the Court also found that NLC had legal standing to challenge the comprehensive permit, even without a local zoning bylaw that specifically regulates that interest. Prior to this decision, the HAC required that an intervenor be able to tie their grievance to a specific local bylaw or ordinance being waived for the project. Instead, the Superior Court ruled that NLC could rely on the Chapter 40B statute itself for standing: “A plaintiff may also establish standing by pointing to an interest recognized by the applicable statute”. (Id. at 13) The Court rejected the HAC’s “unreasonably cramped reading” of the law and adopted the broader view argued by NLC that “the protection of open space is a cognizable interest for purposes of standing.” (Id. at 16)
Before the Court could make these substantive rulings on the law, it first had to resolve the jurisdictional issue of first impression. Generally, when a non-party seeks to intervene, the denial of such a motion is automatically appealable because such an order is final as to the proposed intervener. But that rule has apparently never been applied to intervention in an administrative agency intervention like the one at issue here. The Court devoted the first half of the ruling to sort out why it had jurisdiction to hear this case now, and in fact determined that if it were not heard now, NLC’s appeal from the HAC’s denial of intervention would be “effectively unreviewable.” Being denied intervention as a party deprived NLC the opportunity “to create a record and argue for favorable content in the HAC’s decision”. (Id. at 9) By correcting this error, the Court assured that the NLC may now participate as a party when the HAC re-hears the matter.
This ruling clarifies the substantive law of intervention and standing in the context of Chapter 40B and HAC appeals, and it holds wider implications for future administrative law practice in the Commonwealth.