Code of Massachusetts Regulations
760 CMR - HOUSING AND LIVABLE COMMUNITIES, EXECUTIVE OFFICE OF
Title 760 CMR 56.00 - Comprehensive Permit; Low Or Moderate Income Housing
Section 56.06 - Procedural Regulations for Appeals to the Housing Appeals Committee

Universal Citation: 760 MA Code of Regs 760.56

Current through Register 1531, September 27, 2024

(1) General Provisions.

(a) Docket. The Committee shall keep a record known as a docket, and shall enter therein all papers relating to every appeal filed pursuant to M.G.L. c. 40B, § 22.

(b) Office. The principal office of the Committee is c/o the Department.

(c) Addressing Correspondence. All communications, including pleadings, correspondence, and other documents of any sort shall be addressed to the Housing Appeals Committee, c/o the Department in accordance with 760 CMR 56.06(6)(a).

(d) Date of Receipt. All communications, including correspondence, motions and pleadings shall be deemed to be filed or received on the day on which they are actually received by the Committee in accordance with 760 CMR 56.06(6)(a) and (b).

(e) Extension of Time. Except as otherwise specified in M.G.L. c. 40B, §§ 20 through 23, it shall be within the discretion of the presiding officer to extend any time limit for good cause.

(f) Signatures. Every application, statement, notice, pleading, petition, complaint, motion, brief, memorandum and other document shall be signed by the filing party or by one or more attorneys, in their individual names on behalf of and representing the filing party consistent with policies and procedures established by standing order of the Committee. This signature constitutes a certificate by the signer that he or she has read the document, that to the best of his or her knowledge every statement contained in the instrument is true, and that it is not interposed for delay.

(2) Parties and Intervention.

(a) Substitution or Succession of Parties. The presiding officer may, on motion, at any time in the course of any proceeding, permit such substitution of parties as justice or convenience may require.

(b) Intervention. The presiding officer may allow any person showing that he or she may be substantially and specifically affected by the proceedings to intervene as a party in the whole or in any portion of the proceedings. In determining whether to permit a person to intervene, the presiding officer shall consider only those interests and concerns of that person which are germane to the issues of whether the Local Requirement and Regulations make the Project Uneconomic or whether the Project is Consistent with Local Needs. The presiding officer shall not allow a person to intervene if his or her interests are substantially similar to those of any party and no showing is made that one or more of the parties will not diligently represent those interests. Motions to intervene shall be made promptly after the filing of the initial pleading unless good cause for delay is shown. The participation of an intervener may be limited to the extent and under terms determined in the discretion of the Presiding Officer. Notwithstanding the foregoing, any person shall be allowed to intervene to the extent that he or she would have standing as a person aggrieved to appeal the grant of a special permit in accordance with M.G.L. c. 40A, § 17. The presiding officer may require the consolidation of multiple intereveners with substantially similar interests.

(c) Interested Persons. The presiding officer may allow interested persons to participate in the hearing. Such persons shall be entitled to receive all notices pursuant to 760 CMR 56.06(7)(b) and all other documents pursuant to 760 CMR 56.06(6), but shall be permitted to participate further in the hearing only to the extent and under the terms determined in the discretion of the presiding officer.

(3) Ex Parte Communications. In an appeal proceeding, no person not employed by the Committee shall communicate ex parte with any member of the Committee with respect to the merits of that or any other proceeding. In an appeal proceeding, if any ex parte communication is directed to any person in violation of the first sentence, the members of the Committee and all other parties shall be immediately informed of the substance of the communication and the circumstances of its receipt; provided that a request for information with respect to the status of an adjudicatory proceeding or with respect to Committee procedures shall not be prohibited by 760 CMR 56.06(3). Nothing in 760 CMR 56.06(3) shall prohibit the Committee from obtaining documents or other information of public record from subsidizing agencies or other public agencies. If any such information forms the basis for Committee action, it shall be officially noticed pursuant to 760 CMR 56.06(8) (b.3) or otherwise made part of the record.

(4) Initial Pleadings.

(a) Contents. An initial pleading, as used in 760 CMR 56.06, shall refer to the statement required in M.G.L. c. 40B, § 22 and shall contain in substance the following:
1. A clear and concise statement of the prior proceedings before the Board, including the date of notice of the decision appealed from.

2. A clear and concise statement of the appellant's objections to the decision appealed from, and the reasons upon which the appeal is based.

3. A prayer setting forth the relief sought.

4. The complete name and address of the appellant for the purpose of service of papers in connection with the appeal.

5. If the appellant is represented by counsel, the name and address of the attorneys.

6. A copy of the application and the complete description of the Project submitted to the Board; provided, however, that failure to submit a particular item shall not necessarily invalidate an application, and that upon motion by either party during an appeal, the presiding officer may determine whether such item, or any further item not listed, should have been submitted to the Board or should be submitted to the Committee;

7. A copy of the written decision of the Board, if available.

8. The Committee may print or otherwise duplicate forms to be filled out and used as initial pleadings. When such forms are available the Committee may require their use.

(b) Notification. The Committee shall forthwith transmit the initial pleading to the Board. The Board may, within ten days of receipt of the initial pleading, file a copy of its decision and reasons therefor with the Committee, but shall not be required to do so if a copy received pursuant to 760 CMR 56.06(4)(a)6. accurately represents that decision.

(c) Answer. Any party may file, but shall not be required to file, with the Committee an answer to the initial pleading within ten days after the service of the document to which the answer is directed.

(d) Amendments to Pleadings. Leave to file amendments to any pleadings may be allowed in the discretion of the presiding officer.

(e) Withdrawal of Pleadings.
1. Prior to Commencement of Hearing. A party may withdraw an initial pleading filed with the Committee at any time prior to the commencement of a hearing on such pleading. A notice of withdrawal of the initial pleading shall be filed in accordance with 760 CMR 56.06(6).

2. After Commencement of Hearing. A party desiring to withdraw an initial pleading after the commencement of hearing on such pleading shall file a motion for withdrawal in accordance with 760 CMR 56.06(5). If any party has an objection thereto, he shall within ten days after receipt of said motion file a statement with the Committee setting forth the reasons for his objection. Such an objecting party shall have a hearing on the motion to withdraw, if at the time of filing it so requests. In the absence of objections or a request for hearing, the motion to withdraw shall be deemed allowed, unless otherwise ordered.

(f) Fees. A fee shall be paid by the appellant upon the filing of the initial pleading, in an amount to be defined by standing order of the Committee. The fee shall be used to support the operations of the Committee as provided by St. 1989, c. 653, § 4. Fees shall be payable, in full, by check payable to the Massachusetts Department of Housing and Community Development, upon the filing of appeals with the Committee pursuant to M.G.L. c. 40B, § 22. Fees may be reduced when, in the judgment of the presiding officer, such action is warranted by special circumstances and is in the public interest. Fees charged to non-profit organizations may be reduced to the extent that the cost of such fees is not allowed as a mortgageable cost by the Subsidizing Agency. When a reduction is granted, a statement of the reasons therefore will be filed in the record. Any motion for reduction of fees shall be filed with the initial pleading. No initial pleading will be accepted for filing without the minimum fee.

(g) Time for Appeal. An appeal shall be taken within 20 days after the written decision of the Board has been filed in the office of the city or town clerk. An appeal may also be taken if no written decision is filed within forty days after the termination of the public hearing.

(h) Massachusetts Environmental Policy Act (MEPA).
1. No later than ten days after filing of the initial pleading, the appellant shall file an Environmental Notification Form (ENF) with the Secretary of Environmental Affairs if so required by M.G.L. c. 30, § 62A and 301 CMR 11.03. (Also see 301 CMR 11.05(2).) A copy of the ENF shall simultaneously be served upon the Committee pursuant to 760 CMR 56.06(6). If no ENF need be filed, the appellant may so demonstrate by serving upon the Committee with the initial pleading an advisory opinion obtained from the Secretary of Environmental Affairs pursuant to 301 CMR 11.01(6). (Also see 301 CMR 11.05(3), 301 CMR 11.12(2).)

2. A copy of any notice required pursuant to M.G.L. c. 30, § 62H and 301 CMR 11.14(1) of intention to commence a court action shall simultaneously be served upon the Committee pursuant to 760 CMR 56.06(6).

(5) Motions.

(a) General Requirements.
1. Presentation and Opposition to Motions. A party may request of the presiding officer an order or action that may aid in the disposition of the appeal by filing a motion. Motions may be made in writing or orally in the presence of all parties upon leave of the presiding officer. If a hearing on the motion is desired, it shall be requested at the time the motion is filed, and a hearing may be held at the discretion of the presiding officer. Written opposition to a motion shall be filed within 20 days after the motion is filed unless a different time period is provided below. A written reply to the opposition may be filed within ten days after the opposition is filed. Failure to file a timely opposition may result in a grant of the relief requested by the moving party. In the interest of expediting the hearing on the merits, the presiding officer may deny without prejudice or defer the ruling on any motion until the completion of the hearing. Time periods for the filing of motions and oppositions may be enlarged by the presiding officer for good cause shown.

2. Summary Ruling. The presiding officer may act upon a motion summarily, without awaiting an opposition to the motion, with or without prejudice, in appropriate circumstances, which may include:
a. non-adversarial or routine motions;

b. motions having the assent of all non-moving parties;

c. motions the presiding officer determines would unnecessarily consume time without resolving material issues; or

d. motions the presiding officer determines to be insubstantial in view of the established law or facts of the appeal.

(b) Preliminary Motions. Unless the presiding officer issues an order providing otherwise, the following preliminary motions shall be filed within 30 days after the conference of counsel (See760 CMR 56.06(7)(d)1.):
1. motions to require review by the Subsidizing Agency of a substantial change to a Project Eligibility determination, as described in 760 CMR 56.04(6);

2. motions to dismiss raising issues under the presumption described in 760 CMR 56.07(3)(a)3.;

3. motions concerning sufficiency of the application under 760 CMR 56.05(2);

4. motions concerning constructive grant of a Comprehensive Permit pursuant to M.G.L. c. 40B, § 21 and 760 CMR 56.07(5)(d);

5. motions to clarify whether the Board's decision is a denial or a grant with conditions.

(c) Procedural Motions. The following motions may be filed at any time:
1. motions to dismiss for failure to prosecute the appeal or comply with an order of the presiding officer or of the Committee;

2. other procedural motions.

(d) Motions for Summary Decision. Any party may move, with or without supporting affidavits and a memorandum of law, for a summary decision in the moving party's favor upon all or any of the issues that are the subject of the appeal. The decision sought shall be made if the record before the Committee, together with the affidavits (if any), shows that there is no genuine issue as to any material fact and that the moving party is entitled to a decision in its favor as a matter of law. A summary decision may be made on any issue, even if other issues remain for hearing. Summary decision may be made against the moving party, if appropriate.

An opposition and opposing affidavits may be filed by the opposing party within 30 days of the filing of the motion. A written reply to the opposition may be filed within ten days after the opposition is filed.

(e) Motions for Directed Decision. Upon a party's submission of prefiled testimony, any opposing party may move for a directed decision in its favor on the ground that upon the facts or the law the original party has failed to prove a material element of its case or defense.

An opposition may be filed by the opposing party within 30 days of the filing of the motion. A written reply to the opposition may be filed within ten days after the opposition is filed.

(6) Filing and Service.

(a) Filing. For the purpose of proceedings under 760 CMR 56.06 only, all filings with the Committee shall be made by electronic transmission in accordance with policies and procedures established by standing order of the Committee. Parties shall also file hard copies of such submissions by first class mail, overnight delivery, or hand delivery, as ordered by the presiding officer. (See760 CMR 56.06(1)(c)) .

(b) Service upon Parties and Other Persons. All pleadings, correspondence, or documents of any sort filed with the Committee by a party, intervener, interested person, or other person shall be served simultaneously by electronic transmission in accordance with policies and procedures established by standing order of the Committee. Parties shall also serve hard copies of such submissions by first-class mail, overnight delivery, or hand delivery upon all the parties, interveners, and interested persons, as ordered by the presiding officer.

(c) Notice of Appearance. Any counsel appearing on behalf of any party, proposed intervener, or proposed interested person and any person appearing pro se shall file with the Committee, prior to the conference of counsel if possible, a notice of appearance, which shall include such counsel's or person's name, mailing address, and telephone number.

(7) Conduct of Hearing.

(a) General Rule. The hearing shall commence within 20 days after receipt of the initial pleading in accordance with M.G.L. c. 40B, § 22.

(b) Notice of Hearing. The Committee shall notify all parties, interveners, and interested persons designated pursuant to 760 CMR 56.06(2) of a scheduled hearing in any pending matter. Such notifications shall include, but not be limited to, the time, date, place and nature of hearing.

(c) Place of Hearing . All hearings shall be held at Boston in the offices of the Department, unless a different place or format is designated. The presiding officer may designate that all or a portion of a hearing shall be conducted with one or more participants situated in different locations and communicating through the medium of one or more telecommunication or video communication formats or devices during the COVID-19 State of Emergency.

(d) Conferences. The presiding officer shall notify the parties of the time, place and format of all conferences with the parties.
1. Conference of Counsel. The hearing shall commence with a conference of counsel, which shall be held within 20 days after the filing of the initial pleading. Parties or their counsel shall appear prepared to discuss all issues in the case and with full authority to make binding agreements, including commitments as to scheduling, or shall come to the conference with the name of the person from whom authority is required and be able to communicate directly with the person at the time of the conference. The purpose of the conference shall be to:
a. discuss settlement, including the use of mediation or other alternative dispute resolution mechanisms;

b. define contested issues on which evidence will be offered;

c. consider the possibility of obtaining stipulations, admissions and agreements which will avoid unnecessary evidence;

d. discuss arrangements for preparation by the parties of a draft pre-hearing order;

e. consider any other matters which may aid in the disposition of the appeal.

2. Pre-hearing Conference. The presiding officer may order the parties to appear for a pre-hearing conference prior to the evidentiary portion of the hearing. Unless preliminary or other motions are pending, the pre-hearing conference shall normally be held within 60 days after the conference of counsel. Parties or their counsel shall appear with full authority to make binding agreements, including commitments as to scheduling, or shall come to the conference with the name of the person from whom authority is required and be able to communicate directly with the person at the time of the conference. The purpose of the conference shall be to:
a. finalize and execute a previously drafted pre-hearing order;

b. discuss settlement;

c. define contested issues on which evidence will be offered;

d. consider the possibility of obtaining stipulations, admissions, and agreements that will avoid unnecessary evidence; and

e. consider any other matters which may aid in the disposition of the appeal.

3. Pre-hearing Order. Prior to the evidentiary portion of the hearing, the presiding officer may issue a pre-hearing order, which, if possible, shall be drafted jointly by the parties. It may include:
a. agreed facts, stipulations, admissions, and other agreements of the parties;

b. a list of the contested issues of fact and law together with the burdens of proof established by 760 CMR 56.07(2);

c. a list of witnesses to be called, including the designation of those who will be offered as expert witnesses, and a brief summary of the testimony of each witness;

d. a list of agreed-upon exhibits;

e. a list of contested exhibits, if any;

f. if appropriate, a schedule for filing of pre-filed testimony and the amount of time necessary for each party to conduct its case; and

g. any additional matters to facilitate the disposition of the appeal.

4. Teleconferences and Videoconferences. The presiding officer may schedule such conferences of the parties by telephone, video conference format, or other electronic means as may aid in the disposition of the appeal.

5. Mediation. At any time during the pendency of the appeal, the presiding officer may order the parties and interested persons to appear for a mediation screening or a mediation session as part of a dispute resolution program approved by the Committee in accordance with M.G.L. c. 233, § 23. If so directed, the parties and interested persons shall appear at such a mediation screening or mediation session with full authority to negotiate an agreement to resolve all disputed issues in the appeal. All communications during a mediation screening or mediation session shall be confidential to the extent permitted under M.G.L. c. 233, § 23C.

(e) Conduct of Hearing.
1. Hearing by Committee or Hearing Officer. The hearing shall be conducted before a member of the Committee, before a hearing officer appointed by the Chairman, or before the full Committee.

2. Presiding Officer . The Chairman of the Committee shall determine whether a member of the Committee or a hearing officer shall preside at a hearing and such person shall be designated the presiding officer. If due to illness or other unforeseen circumstances the presiding officer is not able to continue a hearing, the Chairman of the Committee shall appoint another member of the Committee or a hearing officer to preside as needed. The presiding officer shall conduct the hearings pursuant to M.G.L. c. 30A and 760 CMR 56.06 and 760 CMR 56.07. The presiding officer shall have all those powers conferred upon the Committee for the conduct of a hearing, except that he or she shall not be empowered to make any decisions that would finally determine the proceedings, except:
a. on motions to dismiss on grounds relating to project eligibility or progress toward local goals or presumptions, pursuant to 760 CMR 56.03, 760 CMR 56.04, and 760 CMR 56.07(3)(a);

b. on motions to dismiss for failure to prosecute the appeal or comply with an order of the presiding officer or of the Committee;

c. with regard to the enforcement of decisions of the Committee; or

d. where such a determination results from agreement or stipulation between the parties.

In cases in which the presiding officer is not a member of the Committee, he or she shall participate in deliberations of the Committee, but shall not vote.

3. Sworn Testimony. All testimony given shall be under oath.

4. Order of Presentation. In general, the appellant shall present its evidence first, followed by the Board, and then by any other parties. Each party shall be permitted to cross examine each witness following his or her direct examination. The presiding officer shall have discretion to vary the order of presentation, to take witnesses out of turn, to permit the introduction of evidence or cross examination after one or both parties have rested, or to otherwise modify the proceedings or accommodate counsel, whenever such action will facilitate the presentation of evidence or avoid delay.

5. Pre-filed Testimony and Other Evidence. In appropriate cases, the presiding officer may order all parties to file the full written text of the testimony of their expert and fact witnesses, including all exhibits to be offered in evidence. All witnesses whose testimony is pre-filed shall appear at the hearing and be available for cross-examination or their testimony shall be stricken, unless the parties agree otherwise. The presiding officer shall not permit additional, new oral testimony on direct or re-direct examination from witnesses whose testimony is pre-filed, except upon a showing that such evidence was unavailable or unanticipated at the time the written testimony was filed. The presiding officer may also require the filing of written rebuttal testimony within a reasonable time after the filing of the direct testimony. Pre-filed testimony shall be given under oath. Pre-filed testimony shall not be required of witnesses compelled to testify by subpoena. Deadlines for pre-filed testimony may be established on a case-by-case basis or by standing order.

6. Conduct. All parties, counsel, witnesses and other persons present at a hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in the courts of the Commonwealth. Where such decorum is not observed, the presiding officer may take such action as he or she deems appropriate.

7. Transcript of Record. A stenographic record of the proceedings shall be kept and the Committee shall require a party requesting a copy of the transcript to pay the reasonable costs of preparing said transcripts before the Committee makes the transcript available to the party. Alternatively, the cost may be divided equally among the Committee and each of the parties.

8. Transcript Corrections. Corrections on the official transcript may be made only to make it conform to the evidence presented at the hearing. Objections to the accuracy of the transcript not raised within 30 days after the transcript is made available to the objecting party shall be deemed waived. Transcript corrections agreed to by the parties may be incorporated into the record, if approved by the presiding officer, at any time during the hearing or after the close of evidence. The presiding officer may call for and approve proposed corrections at any time.

9. Review of Record by the Committee. The Committee shall render a written decision based upon a majority vote. If a majority of the Committee have neither heard nor read the evidence, the Committee shall comply with M.G.L. c. 30A, § 11(7). The Committee shall not be required to issue a proposed decision unless a party so requests in writing prior to termination of the hearing. A hearing shall be deemed terminated when all transcripts have been approved by the parties and all briefs and memoranda requested by the presiding officer have been filed.

10. Report of Hearing Officer. Where a hearing officer presides, his or her report of proposed findings of fact and recommended disposition of the appeal shall be submitted to the Committee, but need not be served upon the parties.

11. Expedited Hearing. The chairman or presiding officer may, upon motion by a party or his/her own initiative, order that a hearing, or any portion of a hearing, be conducted on an expedited basis.

(f) Oral Argument. A party shall have a right before the close of the hearing to argue orally. The presiding officer may in his or her discretion permit additional oral argument at any time after the close of a hearing, provided all parties are given a reasonable opportunity to be heard.

(8) Evidence, Subpoenas.

(a) Evidence. The Committee, as provided in M.G.L. c. 30A, § 11, need not observe the rules of evidence observed by courts, but shall observe the rules of privilege recognized by law, except as otherwise provided by any law. The presiding officer shall upon objection of counsel or upon his or her own initiative exclude evidence that is unduly repetitious or cumulative and evidence that is not relevant to issues properly before the Committee as set forth in 760 CMR 56.07.

(b) Official Notice and Special Evidence.
1. Official notice may be taken of such matters as might be judicially noticed by the courts of the United States or of the Commonwealth, provided that any party shall on timely request be afforded an opportunity to contest the matters of which official notice is to be taken.

2. The presiding officer may take official notice of general, technical or scientific facts within the Committee's specialized knowledge, provided that any party on timely request be afforded an opportunity to contest such notice; and the presiding officer may upon his or her own initiative call any experts who in his or her judgment will contribute to the Committee's knowledge of the facts and issues of a case, provided that such experts shall be subject to cross examination by all parties.

3. Official notice in any proceeding also may be taken of any fact alleged, presented, or found in any other agency proceeding, provided that any party shall on timely request be afforded an opportunity to contest such notice.

(c) Objections and Exceptions. Formal exceptions to rulings on evidence and procedure are unnecessary. It is sufficient that a party at the time that a ruling of the presiding officer is made or sought, makes known to the presiding officer the action which it desires taken or objections to such action and its grounds therefor.

(d) Subpoenas. In accordance with M.G.L. c. 30A, § 12, the presiding officer shall have the power to issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence relating to any matter in question in the proceeding. All parties shall similarly be entitled to the issuance of subpoenas by a notary public or justice of the peace.

(e) Production and View of Objects. A party may file a motion for the production or view of any object which relates to the subject matter of any proceeding that is pending before the Committee. Said motion shall be granted in the discretion of the presiding officer where justice requires.

(9) Depositions and Stipulations.

(a) Depositions. The testimony of a witness or of a party may be taken by deposition only upon order of the presiding officer, either upon his or her own initiative or upon motion of a party, and only upon a showing that the witness or party cannot testify at the hearing without substantial hardship. In taking such a deposition, the procedures in Mass.R.Civ.P. 26-31 shall be followed except as modified by order of the presiding officer.

(b) Stipulations. In the discretion of the presiding officer, the parties may, by stipulation in writing filed with the Committee at any stage of the proceeding, or orally made at the hearing, agree upon any pertinent facts in the proceeding. In making its findings, the Committee need not be bound to any such stipulation.

(10) Consolidation and Continuances.

(a) Consolidation. The presiding officer, upon his or her own initiative or by motion of a party or other person, may order proceedings involving a common question of law or fact to be consolidated for hearing on any or all of the matters in issue in such proceedings.

(b) Continuances. The presiding officer may, for good cause shown, grant a postponement or a continuance of the hearing.

(11) Briefs and Post-hearing Procedure.

(a) Filing of Briefs. Briefs may be filed by a party or any interested person before or during the course of a hearing or within such time thereafter as the presiding officer shall designate.

(b) Filing of Documents Subsequent to Hearing. The presiding officer may, for good cause shown, allow the parties to file evidentiary documents of any kind or exhibits at a time subsequent to the completion of the hearing, such time to be determined by the presiding officer. If a request for such subsequent filing is granted, the requesting party shall, on or before the date set for filing, send copies of all documents or exhibits that are the subject of the request to all other parties. If such requirement for copies is impracticable, the presiding officer may suspend the provisions; in such case the Committee shall allow reasonable inspection of the original by all parties.

(c) Reopening Hearing. At any time prior to the rendering of a decision, the Committee or the presiding officer may, upon their own initiative or upon motion by a party, reopen the hearing for the purpose of receiving new evidence, oral argument, memoranda, briefs, or motions.

(12) Sanctions. If a party or interested person fails to comply with a rule or order issued by the presiding officer, the presiding officer may impose appropriate sanctions, including the imposition of costs, exclusion of evidence, dismissal of a claim or defense, exclusion from the proceeding, and dismissal of the appeal.

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