SELECT BOARD OF WESTBOROUGH v. NORTHLAND TPLP LLC (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Northland TPLP LLC (Northland), appeals from a Land Court judge's March 12, 2025 decision and judgment following trial. In the end, the judge declared that the affordability restrictions on the property located at 101 Charlestown Meadows Drive in Westborough (the property) shall remain in full force and effect as to Northland and any successors in interest for so long as the property does not conform with the zoning bylaw of the town of Westborough (town).¹ The judge also enjoined Northland to maintain the affordability restrictions in effect. On appeal, Northland argues that the judge erred and decisions by the Massachusetts Housing Appeals Committee (HAC), operating as the property's comprehensive permit, provide a finite term to the affordability restrictions imposed on the property.² We affirm.

Background. This appeal concerns affordability restrictions placed on a 120-unit, subsidized, affordable housing development located on the property. Twenty percent of the units (twenty-four units total) are deed-restricted as affordable to low- or moderate-income families or individuals. The HAC, the town zoning board of appeals (ZBA), and Northland all treat a 1992 HAC decision and a 1994 HAC order collectively as the property's operative comprehensive permit.³

On December 6, 1988, CMA, Inc., applied to the ZBA for a comprehensive permit pursuant to G. L. c. 40B, §§ 20-23, the comprehensive permit statute, to build 274 units of subsidized, affordable housing. After a public hearing, the ZBA voted to deny the application. CMA, Inc., appealed to the HAC from the ZBA's decision to deny the application. On June 25, 1992, the HAC issued a favorable decision (1992 HAC decision) ordering the issuance of a comprehensive permit for the construction of 120 units of housing, with various conditions,⁴ none of which imposed a durational limit on the affordability restrictions. In its 1992 decision, the HAC noted that the town contested whether the project met one of the jurisdictional requirements for a comprehensive permit -- namely that the project be fundable by a subsidizing agency. In concluding that the project met this jurisdictional requirement, the HAC relied on a Massachusetts Housing Finance Agency (MHFA) site approval letter, stating that the letter “provides the assurance that ․ programmatic aspects of the project (e.g., the mix of market rate and affordable units, eligibility standards for occupants, the duration of the use restrictions or ‘lock-in period,’ ownership versus rental use) are acceptable.”

Following the 1992 HAC decision, but without the issuance of a comprehensive permit, Avalon Properties, Inc. (Avalon), reached an agreement with CMA, Inc., to purchase the property. Avalon then requested that the ZBA approve certain proposed insubstantial changes, but the ZBA requested the changes be submitted to the HAC because no comprehensive permit had been issued and the 1992 HAC decision stated that the HAC intended to retain jurisdiction. On April 27, 1994, the town and Avalon reached an agreement as to some of the proposed changes and on June 6, 1994, submitted a joint status report and recommendation regarding Avalon's proposal. The report stated that the parties agreed on certain issues and failed to reach an agreement on others but did not address the end date for affordability restrictions. The parties requested that the HAC “issue a final comprehensive permit” subject to resolution of certain issues. Later in the same report, the parties requested the HAC “approve in writing the transfer of the comprehensive permit.” On July 20, 1994, after receiving the joint status report, convening a conference of counsel and conducting an evidentiary hearing, the HAC issued an “Order to Transfer of Permit [sic]” (1994 HAC order). The 1994 HAC order, inter alia, approved the project changes, approved the change in source of the required subsidy from the “Tax Exempt Local Loan to Encourage Rental Housing” (TELLER) to the MHFA, and approved the transfer of the comprehensive permit rights from CMA, Inc., to Avalon. Recognizing the change in the source of subsidy from TELLER to the MHFA, the 1994 HAC order stated in a footnote:

“Exhibit G is a March 21, 1994 letter from the MHFA confirming its interest in financing the proposal. This letter would not be sufficient to constitute a determination of project eligibility under 76 C.M.R. 31.01 (2) at the beginning of the comprehensive permit process. But at this point, since project eligibility was previously established and fundability is not contested by the Board, the letter is acceptable. We are confident that the MHFA will ensure that twenty percent of the units are set aside for tenants with incomes of no higher than fifty percent of median income, that long-term affordability will be assured, and that the other normal requirements for subsidized housing are met.”

Avalon subsequently developed the proposed housing complex in accordance with the 1994 HAC order and the comprehensive permit statute.

On September 25, 2007, Avalon conveyed the property to Northland. Northland then executed two amendments to the financing agreement with the MHFA, setting the affordability restrictions on the property to expire on September 25, 2022.⁵ Notably, the town was not a party to the initial agreement between Avalon and the MHFA nor to the amendments executed by Northland.

In September 2021, Northland notified the tenants of the twenty-four low-income units that it would be converting those units to market-rate units and terminating the affordability restrictions imposed on them. After learning of the impending end of the affordability restrictions, the town, through the Westborough affordable housing trust (trust), sought programs and grants to assist the tenants in finding affordable housing options. The trust hired a housing consultant who reported that he was unable to find any available subsidy programs but alerted the town to the Supreme Judicial Court's decision in Zoning Bd. of Appeals of Wellesley v. Ardemore Apartments Ltd. Partnership, 436 Mass. 811 (2002) (Ardemore). On June 16, 2022, the town manager wrote to Northland stating the town's position that Ardemore applied to the affordability restrictions on the property and required that they stay in effect as long as the development does not comply with the town's zoning bylaw. See id. at 814-815. On August 25, 2022, the town filed the underlying action.

Discussion. We review a judge's “decision as to questions of law, and questions of fact based entirely on documents, de novo.” Erickson v. Clancy Realty Trust, 88 Mass. App. Ct. 809, 810 (2016).

Pursuant to the comprehensive permit statute, an applicant who wishes to build multifamily housing structures in a zone designated for single-family housing “may file with a local zoning board an application for a comprehensive permit rather than seeking separate approval from each local board having jurisdiction over the project.” Ardemore, 436 Mass. at 815, citing G. L. c. 40B, § 21. “A comprehensive permit is available only when proposed housing is ‘subsidized by the federal or state government under any program to assist the construction of low or moderate income housing.’ ” Ardemore, supra at 812, quoting G. L. c. 40B, § 20. If “a comprehensive permit itself does not specify for how long housing units must remain below market,” the comprehensive permit act “requires an owner to maintain the units as affordable for as long as the housing is not in compliance with local zoning requirements, regardless of the terms of any attendant construction subsidy agreements.” Ardemore, supra at 813.

The parties agree that the 1992 HAC decision and 1994 HAC order constitute the comprehensive permit for the property, and Ardemore applies to the interpretation of those orders. However, Northland contends that these HAC decisions, read together, specify a finite duration for the affordability restriction. We disagree.

The town notes, and we agree, that Northland's argument bears some similarity to one advanced by the property owner in Ardemore, 436 Mass. at 827, who also contended that the comprehensive permit in that case incorporated the MHFA subsidy agreement's expiration date for the project's affordability requirement. The town in Ardemore, supra, issued the comprehensive permit “in accordance with [the owner's] application,” and the owner's application stated an agreement to limit return on investment “by the terms of the financing as required by Massachusetts Housing Finance Agency.” However, in rejecting the owner's argument, the Supreme Judicial Court concluded that the provision “define[d] the threshold eligibility level for tenants seeking access to the affordable units” and did not “determine whether or when the affordable restriction will expire.” Id.

In the present case, the 1992 HAC decision's reference to durational limits served to explain why those durational limits were not a bar to the application of CMA, Inc., for a comprehensive permit. Likewise, the footnote in the 1994 HAC order provided HAC's reasoning as to why, despite a change in the source of subsidy, Avalon's plan would still meet the statutory requirements for “low or moderate income housing.” See G. L. c. 40B, § 20.

Northland contends that declining to read the footnote in the 1994 HAC order as imposing a finite term for the affordability restriction renders the footnote meaningless, and therefore must be wrong. See Gibraltar Fin. Corp. v. Lumbermens Mut. Cas. Co., 400 Mass. 870, 872 (1987) (“It is a standard rule of construction that interpretations which result in meaningless words are to be avoided”). We are not persuaded. Unlike statutes and contracts, agency decisions routinely state their reasoning, to permit judicial review. See NextEra Energy Resources, LLC v. Department of Pub. Utils., 485 Mass. 595, 603 (2020) (agency “must provide adequate subsidiary findings and reasoning to support its decision” for agency decision to pass judicial review). Here, it is evident from the context in which both HAC decisions reference the finite terms of the subsidizing agencies’ affordability requirements that the HAC was providing reasoning for its conclusions that the project proposals met the minimum statutory requirements for a comprehensive permit. Indeed, had the HAC intended to require the town to incorporate those finite terms in the comprehensive permit, it could have done so in its conclusion and order, where it set other conditions on the comprehensive permit.

Therefore, the mentions in the HAC decisions of durational limits on the subsidizing agencies’ affordability restrictions, and the town's decision to treat the HAC decisions as the operative comprehensive permit, do not equate to the town's express agreement to a finite duration on the property's affordability restrictions. See Ardemore, 436 Mass. at 825 (“unless otherwise expressly agreed to by a town, so long as the project is not in compliance with local zoning ordinances, it must continue to serve the public interest for which it was authorized”). Accordingly, we agree with the judge that the town was entitled to a declaratory judgment precluding Northland from terminating the affordability restrictions on the property. See id.

Judgment affirmed.

FOOTNOTES

1.   The property consists of multifamily apartment buildings located in a single-family residence zoning district.

2.   Northland also contends that it was error for the judge to find that, to the extent that the HAC decisions are ambiguous as to whether the affordability restrictions are finite in term, Northland failed to submit extrinsic evidence of the town's intent that the affordability requirement would terminate. Because we agree with the judge that the HAC decisions do not contain a finite term to the affordability restrictions, we need not address this argument.

3.   Because the parties agree that the HAC decisions operate as the comprehensive permit, we assume without deciding that the decisions may operate as such without the town or HAC actually issuing a permit.

4.   Specifically, that (1) CMA, Inc., submit a certificate of compliance with the Massachusetts Environmental Policy Act and a final environmental impact report; (2) the construction accord with all applicable zoning laws except those not consistent with the decision; (3) the 1992 HAC decision should not be construed to permit standards less safe than those of the subsidizing agencies; and (4) the ZBA shall take whatever steps necessary to ensure that a building permit is issued upon presentation of construction plans that conform with the comprehensive permit and Massachusetts Uniform Building Code.

5.   A September 4, 2008 subsidized housing inventory prepared by the Massachusetts Department of Housing and Community Development (DHCD) listed the expiration date of 2025. The chairperson of the town's select board wrote to DHCD requesting edits to the town's entries on the subsidized housing inventory but did not request an edit on the duration of the affordability restrictions on the property.