Back To Listing

TIC for 40B Consultants

By contrast, when a ZBA approves a permit with conditions and the developer appeals, the HAC’s standards of review initially are quite different. In these cases, the developer has the burden of showing that the ZBA’s conditions, viewed in their entirety, make the project uneconomic. If the developer can prove that point, the community then has to show that the conditions are consistent with local needs: reasonable in view of the regional need for low- or moderate-income housing, and necessary to protect valid health and safety concerns or to create a project that fits better with its surroundings in terms of site and building design, open space, and the natural environment. In addition, the ZBA can only impose requirements that are clearly under its purview. For example, the ZBA cannot impose requirements that exceed what is generally imposed on other types of residential development, or that address a pre-existing condition affecting the municipality generally, or that are disproportionate to the impact of the project on the community. In other words, low- or moderate-income housing cannot be “singled out.” If the HAC agrees with the developer, it will strike the comprehensive permit conditions that make the project uneconomic but leave the rest of the permit intact. If the HAC disagrees with the developer, the ZBA’s decision will be upheld as written. Developer profit from Chapter 40B projects has been the subject of dispute for a long time.