Appeals Court Holds a Decision of the HAC in an Administrative Appeal of a Comprehensive Permit Issued under Chapter 40B Does Not Moot an Abutter’s Appeal to Superior Court

Beveridge & Diamond, P.C., April 2007

In Taylor v. Board of Appeals of Lexington, 68 Mass. App. Ct. 503 (2007), the Appeals Court considered the relationship between separate developer and abutter appeals of a comprehensive permit issued pursuant to G.L. c. 40B, which result in the same decision being appealed both to Superior Court and the Housing Appeals Committee (HAC).  The Appeals Court held that an HAC ruling that a revised comprehensive permit must issue does not moot judicial review of the abutters’ concurrent appeal.  Essentially, a developer who appeals to the HAC and prevails cannot avoid an ongoing Superior Court appeal by an abutter by relying on the HAC decision.

In this case, the abutters appealed the issuance of a comprehensive permit with conditions to Superior Court, while the developer appealed the same decision to the HAC.  The HAC ordered the issuance of a revised comprehensive permit, a decision the abutters also appealed.  The Appeals Court ruled that the HAC decision and subsequent appeal did not moot the abutters’ original appeal of the Board decision where the Act specifically provides for these two distinct avenues of appeal.

The Appeals Court left for the Superior Court on remand the question of how the multiple appeals should be handled as a practical matter, noting the parties “may wish to assist the court by providing suggestions as to how both parties’ rights to appeal may be effectuated meaningfully and without jeopardizing the important interests of creating affordable housing and furthering judicial efficiency.”  The Court suggested the Superior Court consolidate the cases, schedule a conference with the parties, and perhaps stay the original appeal pending resolution of the appeal of the HAC decision or request the abutters amend their complaint.

For more information, please contact Krista Hawley at khawley@bdlaw.com.