School Costs Cannot Form Basis to Deny Housing Construction Permits

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The Massachusetts Land Court, in two separate opinions, has held that the costs of educating school-age children who may occupy a housing complex is not a valid basis for denying a developer's request for a building permit. While the Massachusetts Appeals Court had skirted this issue years ago, these two cases are the first to squarely address the question of whether fiscal impact on a public school system is a valid ground on which to deny a housing proposal. The Bevilacqua Co., Inc. v. Lundberg, et al.160 Moulton Drive LLC v. Shaffer.

In both cases, a developer proposed to use a former commercial site to develop multiple housing units. In each instance, the town rejected the proposal, in part, on the basis of the projected increase in school age children the development would add to the local school system.  In The Bevilacqua Co., Inc., Judge Speicher grounded his November 2, 2020 rejection of that basis in the education clause of the Massachusetts Constitution, which requires municipalities and school districts to provide a public school education to all children in that district regardless of the fiscal capacity of or cost to the district. "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."

In his December 11, 2020 decision in 160 Moulton Drive, LLC v. Shaffer et al., Judge Foster agreed with Judge Speicher's reasoning. "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." Both Judge Speicher and Judge Foster not only reversed the denials of the permits on those bases, but ordered the issuance of the permits, rather than allow the local zoning boards a chance to deny the permits on another basis on remand.

While neither the Appeals Court nor the Supreme Judicial Court has weighed in on this issue, for now the Land Court has definitively held that the cost of educating potential residents in public schools is not a valid reason to deny permits to build housing.  

For more information about our real estate and construction law practices, please visit Fitch Law Partner LLP's construction litigation and real estate litigation pages.

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