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September 30, 2016 Practice Points

A Comprehensive Permit Application Is Not Complete Without Full Payment of Filing Fee

How can a dispute over a mere filing fee result in a comprehensive permit application being denied?

by Denis F. Alia

How can a dispute over a filing fee, which some of us would consider a harmless disagreement over an administrative matter, result in a comprehensive permit application being denied without the opportunity for an appeal? In Zoning Board of Appeals of Hanover v. Housing Appeals Committee & Another, 90 Mass. App. Ct. 111 (2016), the project developer, submitted a comprehensive permit application to a local zoning board for a project consisting of 152 units, a quarter of which would be affordable housing units. Although the application required a filing fee in the amount of $38,000, the developer only made a partial payment of $8,000 with its application, indicating that it considered the higher of the two amounts to be unreasonable. By the time the developer reconsidered its decision and paid the full fee, the board had been certified for “safe harbor” status under the “Housing Production Plan” of 760 Code Mass. Regs. §56.03(4)(f)(2008), which essentially shielded the board’s decisions from further review by the Housing Appeals Committee (HAC) in accordance with M. G. L. c. 30A.

Based on its local housing needs, the board eventually denied the developer’s revised permit application. Seeking the benefit of the earlier filing date, which would subject the board’s decision to a review by the HAC, the developer appealed. The HAC reversed the board’s decision holding that, although the total filing fee of $38,000 was reasonable, the Developer’s partial payment did not necessarily render the permit application invalid. The HAC’s holding was affirmed by the Superior Court. However, on further appeal to the Appeals Court, the HAC’s decision was reversed and remanded back to the Board. Using traditional rules of construction to interpret the language found in the Department of Housing and Community Development (DHCD) guidelines, and even giving due deference to HAC’s decision, the appeals court found that the developer’s decision to submit partial payment rendered its application incomplete as of the original filing date.

Specifically, as the appeals court explained, an application for a comprehensive permit consists of three required components: the application itself, a description of the project, and a filing fee, all of which are outlined under 760 Code Mass. Regs. section 56.05(2). Although the language in the regulation allows for some flexibility with respect to the description of the project, such flexibility does not apply to the filing fee because the two components are described in different paragraphs of section 56.05(2). In other words, although a failure to submit a complete project description may not necessarily invalidate an application, paying an amount other than the full filing fee will almost certainly invalidate that application.

It is worth noting, however, that the filing fee can be reduced when “such action is warranted by special circumstances and is in the public interest,” However, this reduction can only be obtained through a timely-filed motion. The Developer in Hanover did not file a motion with the zoning board, it did not make a request for a reduction of fees, and it “did not point to any special circumstances, hardship, or inability to pay the full fee, nor did [it] contend that a reduction of fees for its application would be in the public interest.”

To avoid the Developer’s situation in Hanover, when seeking to either have the permit fee reduced or challenge its reasonableness, a prudent course of action would be to timely file a motion along with the permit application package as allowed by HAC’s appeal procedures. This step essentially treats full payment of the filing fee as a “condition precedent” for an application to be considered on its merits, and the reasonableness of the filing fee and any pertinent refunds can be assessed after a proper appeal. In return, full payment allows a local zoning board to “defray the direct costs of processing applications”, which can be substantial because the municipality has to “mobilize its resources to entertain a comprehensive permit petition”.

Denis F. Alia is an associate with Cetrulo LLP in Boston, Massachusetts.

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