The 40B Appeal Process
By Gregory T. Federspiel
With the ZBA’s denial of the proposed 40B project on Upper School Street and the applicant’s subsequent filing of an appeal of this denial to the State, the project moves on to the next phase of review. The appeal at this stage is made to the Housing Advisory Committee (HAC) which is operated under the Department of Housing and Community Development (DHCD.)
The applicant and the Town are the two statutory parties in the appeal. It is possible for other parties to participate but any third party must apply for party status to the HAC. If full party status is granted, the third party is allowed to present pre-filed testimony, and both pre- and post-hearing briefs to the HAC. Alternatively, a third party might be granted interested party status only, giving the party the right to be noticed on all official business during the administrative appeal and to file a brief after the close of the evidentiary portion of the process, but not to present evidence of its own. Those seeking party status in the SLV appeal should be in contact with the HAC very soon.
The appeal process before the HAC is not based on the proceedings held by our ZBA. Rather, the HAC starts “fresh”, conducting a de novo hearing. New pre-filed testimony and cross examination of expert witnesses takes place before an administrative hearing officer. The proceedings, which are open to the public for the purpose of listening only, are recorded with a complete transcript prepared by a court stenographer.
The HAC is scheduled to hold a “conference of counsel” next week to identify the issues in the case. Our ZBA’s denial focused on environmental degradation that could result from the project and public safety concerns. A date will be set for the parties to prepare and file a joint pre-hearing conference order for further conferencing with the HAC presiding officer. Subsequently an order setting the schedule for the proceedings and clarifying the issues for adjudication by the HAC will be issued.
Once the official order is finalized, the applicant will submit its pre-filed testimony and expert witnesses in support of the appeal. The Town will then have the opportunity to submit its pre-filed testimony and list of expert witnesses after which the applicant will have time to file rebuttal testimony.
Once all the pre-hearing testimony is filed, an administrative adjudicatory hearing conducted by a presiding officer employed by the HAC will be held. The hearing is limited to cross-examination of the opposing party’s witnesses. Unlike a typical court hearing, these hearings do not take direct testimony. Instead, all testimony is filed in writing ahead of time and the hearing is reserved for cross examination of witnesses that the parties decide to pursue. It is only through cross-examination that witnesses provide live testimony.
Once the hearing is complete and a transcript is produced, the parties file post-hearing briefs. The full HAC reviews all the materials and will render a decision based on their review. The entire process could take upwards of a year or more to complete.
The decisions of the HAC may be appealed to Superior Court. Appeals are based on the record before the HAC, not on any new evidence.
The Town will be spending significant money on legal fees and expert witnesses to defend the ZBA’s denial. Voters likely will be asked to make a supplemental appropriation at the upcoming Special Town Meeting in November to pay for these new expenses.
During the pendency of the appeals process, the Town could receive 40B applications for other proposals. Thus, it behooves us to continue to work on advancing plans for officially designated affordable housing units in Town. Demonstrating tangible progress toward meeting the goal of 10% of our housing being designated as affordable allows us to have a “safe harbor” from new 40B projects. Tangible progress for Manchester means adding some 11 new units a year.