135 Wells Avenue, LLC v. Housing Appeals Committee, et al. (Lawyers Weekly No. 10-184-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12253 135 WELLS AVENUE, LLC vs. HOUSING APPEALS COMMITTEE & others.[1] Suffolk. April 6, 2017. – November 13, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[2] Municipal Corporations, Property, Use of municipal property. Real Property, Deed, Restrictions. Housing. Zoning, Housing appeals committee, Low and moderate income housing, Board of appeals: jurisdiction. Permit. Civil action commenced in the Land Court Department on January 14, 2016. The case was heard by Robert B. Foster, J., on motions for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Daniel P. Dain for the plaintiff. Maura E. O’Keefe, Assistant City Solicitor (Jonah Temple, Assistant City Solicitor, also present) for zoning board of appeals of Newton & another. Pierce O. Cray, Assistant Attorney General, for Housing Appeals Committee. Paul E. Bouton, Stephen P. LaRose, & Christopher R. Minue, for Citizens’ Housing and Planning Association, amicus curiae, submitted a brief. GAZIANO, J. The plaintiff, 135 Wells Avenue, LLC (135 Wells), owns a 6.3-acre parcel of land in Newton (site), in an area known as Wells Avenue Office Park (property), which is zoned for limited manufacturing use. As is all of the property, the site is subject to a restrictive covenant owned by the city of Newton (city); among other things, the city’s deed restriction permits only certain of the uses ordinarily allowed in a limited manufacturing zone, limits the size and setbacks of buildings, and requires that a certain portion of the land remain open space. The city also owns an abutting 30.5-acre parcel with a deed restriction requiring that it be used only for conservation, parkland, or recreational use. 135 Wells seeks to construct a 334-unit residential rental unit complex on the site, with eighty-four of the units (twenty-five per cent) reserved as affordable housing, pursuant to G. L. c. 40B, §§ 20-23. In order to proceed with development of the project, in May, 2014, 135 Wells asked the city’s board of aldermen (aldermen) to amend the deed restriction to allow a residential use at the site, and to permit construction in the nonbuild zone; the aldermen declined to modify the deed restriction. At the same time, 135 Wells applied to the city’s zoning board of appeals (ZBA)[3] for a comprehensive permit to develop the mixed-income project. The […]