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School Costs Rejected as Basis for Denial of Special Permits

By January 19, 2021 No Comments

In two separate cases, two Land Court judges recently held that the cost of educating school-age children who might move into newly constructed housing units is not a valid ground upon which a municipality may deny a developer’s request for a special permit. These surprising decisions could establish an important legal precedent that would aid in the development of housing for families.

In each case, the developer was seeking to convert the site of a shuttered restaurant into housing. Both municipalities justified their denials of the requested zoning relief in part by pointing to the projected increase in the number of school-age children the projects would bring into the community.

Prior to Judge Howard Speicher’s decision in The Bevilacqua Co., Inc. v. Lundberg, et at., no Massachusetts court had directly addressed the question of whether the negative fiscal impact on a public school system is a legally tenable ground that may be considered by a permit granting authority in deciding whether to approve a housing project.

Speicher based his decision on the so-called “education clause” of the Massachusetts Constitution, which “imposes an enforceable duty … to provide education in the public schools … without regard to the fiscal capacity of the community or district in which such children live.” He said that, similar to when claimed injuries to the value of abutters’ properties must yield to public policy encouraging the construction of affordable housing under G.L.c. 40B, so too should the guarantee of the right to a public education take precedence over local zoning preferences when considering a special permit application.

“Since a public school education must be provided to children ‘without regard to the fiscal capacity of the community,’ it would be anomalous to countenance the denial of a special permit based on a reason that contravenes that constitutional obligation,” he wrote.

In the subsequent case 160 Moulton Drive LLC v. Shaffer, et al., Judge Robert Foster agreed with Judge Speicher. “Denial of a special permit on the grounds that increased tax revenue would not support the education of the children living therein is tantamount to conditioning the availability of public services on the ability of the residents to pay for them, which I find to be unreasonable and arbitrary,” Foster wrote. “Concerns over school enrollment and fiscal impacts, even if they are earnestly, subjectively felt by a particular community, act in effect as stalking horses for maintaining housing segregation here in Massachusetts, and throughout the country,” Shapiro said.

The project in Bevilacqua was to be sited in a neighborhood containing an “eclectic mix” of single-family and small multi-family residential uses, as well as commercial and marine uses. The Bevilacqua Co. proposed razing the existing long-vacant restaurant and replacing it with a pair of three-story multi-family townhouse style buildings, each containing four units.

The Gloucester Zoning Board of Appeals granted the project the necessary variances, but the City Council denied the required special permits. Needing a two-thirds vote to pass, the proposal garnered only three votes in favor and five opposed, with one member absent.

The project in 160 Moulton Drive was planned for the former site of the Bali Hai restaurant in Lynnfield that closed on New Year’s Eve 2018. In its place, 160 Moulton Drive LLC plans to build a 23-unit market rate apartment building.

These decisions send a clear message to cities and towns that concerns about the cost of educating children who may reside in a proposed housing development are not an appropriate consideration in the context of zoning decisions.

A copy of the decision in The Bevilacqua Co., Inc. v. Lundberg, et al. can be found here.

A copy of the decision in 160 Moulton Drive LLC v. Shaffer, et al. can be found here.