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15-P-680                                           Appeals Court

     EISAI, INC., & others1 vs. HOUSING APPEALS COMMITTEE
                           & another.2


                           No. 15-P-680.

           Suffolk.     March 8, 2016. - June 20, 2016.

            Present:   Hanlon, Sullivan, & Massing, JJ.


Housing. Zoning, Housing appeals committee, Comprehensive
     permit, Person aggrieved. Practice, Civil, Zoning appeal,
     Standing.


     Civil action commenced in the Superior Court Department on
March 11, 2014.

     The case was heard by Edward P. Leibensperger, J., on
motions for judgment on the pleadings.


     Christopher Robertson (Jonathan D. Witten with him) for the
plaintiffs.
     Suleyken D. Walker for Housing Appeals Committee.
     Kevin P. O'Flaherty for Hanover R.S. Limited Partnership.




    1
       Andover Five, LLC; MKS Instruments, Inc.; Philips
Electronics North America, Inc.; and RREEF America REIT III
Corp. Z1.
    2
        Hanover R.S. Limited Partnership.
                                                                   2


    MASSING, J.   This appeal concerns the standards that

defendant housing appeals committee (HAC) applies when it

reviews the decision of a local zoning board of appeals to deny

an application under the Comprehensive Permit Act, G. L. c. 40B,

§§ 20-23 (act), based on municipal planning concerns.

    The plaintiffs, owners and lessors of commercial and

industrial properties neighboring the proposed housing

development (hereinafter, abutters or, in context, interveners),

appeal from a judgment of the Superior Court affirming the HAC's

decision directing the zoning board of appeals for the town of

Andover (board) to issue a comprehensive permit to defendant

Hanover R.S. Limited Partnership (developer).   The abutters

claim that the HAC impermissibly applied a new standard, not

contained in any statute, regulation, or previous HAC decision,

in evaluating Andover's municipal planning efforts.     In the

alternative, they claim that the HAC erroneously applied the

applicable standard.   The defendants, for their part, contend

that the abutters lack standing to bring this appeal.

Concluding that the abutters have standing, we reach the merits

and affirm the judgment of the Superior Court affirming the

HAC's decision.

    Background.   On August 19, 2011, the developer filed an

application for a comprehensive permit to build a mixed income

rental housing development to be known as the "Lodge at Andover"
                                                                   3


within an existing office and industrial park.   The proposed

location for the residential development, 30 Shattuck Road, is

mostly within Andover's River Road industrial D district, a

commercial and industrial area in the northernmost part of

Andover, near the River Road exit of Interstate Route 93.3

Shattuck Road, a dead end, and Tech Drive, a small looping road

off of Shattuck Road, make up the office and industrial park

consisting of ten large businesses and one vacant lot:   the

proposed site.   The office and industrial park houses offices,

research and development facilities, and some light industrial

operations.4   After unsuccessfully marketing the vacant lot for

commercial development, the previous owner entered into a

purchase and sale agreement with the developer, which intended

to build the housing complex.   The development, as currently

planned, is to consist of 248 rental units in four buildings, a

playground, a swimming pool, and a 5,000-square-foot clubhouse;

twenty-five percent of the units will be reserved for affordable

housing.

     3
       A very small "dog-leg" portion   of the parcel is zoned
single-family residential C, and some   single-family homes in
this zoning district abut the rear of   the parcel. All of the
proposed construction will be located   within the River Road
industrial D district.
     4
       A ninety-six-unit affordable housing development called
"Casco Crossing," approved by the board in 2003, is located
within the River Road industrial D district, but outside the
office and industrial park. It also abuts the back of the
project site.
                                                                   4


     At the time of the developer's application for a

comprehensive permit, the percentage of affordable housing in

Andover was 9.3 percent, creating a rebuttable presumption that

the local need for affordable housing outweighed other local

concerns.5   Nonetheless, after numerous public hearings, the

board denied the developer's application in a decision dated

September 7, 2012, on the ground that the "proposed project is

inconsistent with decades of municipal planning, economic

development strategies, and planning with owners and tenants of

the abutting industrial properties[,] . . . most notably, the

rezoning of the locus and abutting properties to accommodate and

develop a modern, competitive, and viable industrial park and

industrial center."    The board noted that industrial and

commercial uses generate noise, dust, vibration, and truck

traffic during their extended hours of activities, which "will

pose a threat to the public health and safety of the occupants

of the development."   Thus, the board concluded that "[t]he

stated purpose of the Industrial 'D' zoning district is

inexorably inconsistent with residential uses."

     The developer appealed to the HAC under G. L. c. 40B, § 22.

The HAC granted the abutters permission to participate in the



     5
       See Zoning Bd. of Appeals of Holliston v. Housing Appeals
Comm., 80 Mass. App. Ct. 406, 414 (2011), and discussion infra.
                                                                     5


proceedings as interveners.6    In a thoughtful and thorough

decision dated February 10, 2014, the HAC directed the board to

issue a comprehensive permit.    The board did not appeal from the

final decision of the HAC; however, the interveners sought

judicial review in the Superior Court under G. L. c. 30A, § 14.

In a decision dated January 2, 2015, acting on cross motions for

judgment on the pleadings, a Superior Court judge ordered the

entry of judgment for the defendants (the developer and the

HAC), affirming the HAC's decision.

     Discussion.   1.   Standing.   The defendants assert, as they

did in Superior Court, that the interveners are not entitled to

appeal as persons aggrieved by the HAC's decision because they

have not demonstrated a substantial injury to a direct and

certain violation of a private right.

     Initially, the only parties in the HAC proceedings were the

developer, which had the right to appeal from the denial of its

application, see G. L. c. 40B, § 22, and the board.     "An

abutter, or other aggrieved third party, has no right to appeal

to the HAC, and may participate in the applicant's appeal only

with the permission of the presiding officer in the HAC

proceeding."   Taylor v. Board of Appeals of Lexington, 451 Mass.

270, 275 (2008).   The abutters sought to intervene under 760


     6
       A sixth intervener participated in the HAC proceedings.
Only five have joined in this appeal.
                                                                     6


Code Mass. Regs. § 56.06(2)(b) (2008), which allows for

intervention by "any person showing that he or she may be

substantially and specifically affected by the proceedings."

The presiding officer determined that "the interests of all six

businesses are distinct from the interests of the Board" and

were sufficient to grant intervention.7

     "Mere participation in the administrative process does not

confer standing to raise a claim in the Superior Court."

Ginther v. Commissioner of Ins., 427 Mass. 319, 324 (1998).    See

Mostyn v. Department of Envtl. Protection, 83 Mass. App. Ct.

788, 792 (2013).    Rather, the interveners must demonstrate that

they are persons aggrieved by the HAC decision.    General Laws

c. 40B, § 21, inserted by St. 1969, c. 774, § 1, provides that

"[a]ny person aggrieved by the issuance of a comprehensive

permit or approval may appeal to the court as provided in [G. L.

c. 40A, § 17]."    "While the words 'person aggrieved' are not to

be narrowly construed, the Legislature has 'intentionally

limited the class of parties with standing to challenge a

comprehensive permit.'"    Standerwick v. Zoning Bd. of Appeals of

Andover, 447 Mass. 20, 26 (2006) (citations omitted)

(Standerwick).    "Specifically, a 'person aggrieved' . . . must

assert 'a plausible claim of a definite violation of a private

     7
       We pass over the question whether the HAC, having
permitted the abutters to intervene on this ground, may properly
be heard on appeal to argue against its own prior determination.
                                                                    7


right, a private property interest, or a private legal

interest."   Id. at 27, quoting from Harvard Square Defense Fund,

Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493

(1989).

      A mere economic interest "is clearly not a concern that the

G. L. c. 40B regulatory scheme is intended to protect."    Id. at

30.   However, the record plainly establishes that at least one

of the interveners is an abutter to the project site.8    "As

abutters, the plaintiffs are entitled to a rebuttable

presumption that they are 'persons aggrieved' under the act."9

Id. at 33.   To rebut the abutting interveners' presumption of


      8
       Intervener Andover Five, LLC, owns 20 Shattuck Road, the
parcel bordering 30 Shattuck Road to the south. The properties
of three other interveners appear to be across the street from
or within 300 feet of the site, "which in either event would
give them a presumption of standing to challenge the issuance of
a comprehensive permit." Standerwick, supra at 22 n.4. The
fifth intervener, Philips Electronics North America, Inc., is
located within the River Road industrial D district but is not
an abutter. Because we find that at least one intervener is an
abutter with standing, we may reach the merits without further
considering the standing of the others. See Martin v.
Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints, 434 Mass. 141, 145 (2001).
      9
       "This presumption originates in our jurisprudence
concerning G. L. c. 40A, . . . but its reasoning -- that those
entitled to notice of the proceedings are presumed to have the
requisite interest -- applies with equal force in the context of
challenges to comprehensive permits pursuant to G. L. c. 40B."
Standerwick, supra. See 760 Code Mass. Regs. § 56.06(2)(b)
(2008) ("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").
                                                                    8


standing, the defendants must support their challenge with

evidence to the contrary.     See id. at 34-35 ("an abutter is

presumed to have standing until the defendant comes forward with

evidence to contradict that presumption"); Barvenik v. Aldermen

of Newton, 33 Mass. App. Ct. 129, 131-132 (1992) (defendant must

offer evidence to rebut abutters' presumption of aggrieved

person status).   See also 81 Spooner Rd., LLC v. Zoning Bd. of

Appeals of Brookline, 461 Mass. 692, 700 (2012) (in zoning

context, presumption of standing can be rebutted by offering

evidence "warranting a finding contrary to the presumed fact").

    The defendants have offered no evidence to rebut the

presumption.   In Superior Court, the defendants challenged the

interveners' standing based only on the mistaken assertion that

they were not abutters.     Because "no evidence was presented

. . . that controverted the plaintiffs' presumption of

standing," the interveners, as abutters, "were entitled to rely

entirely on their presumed status of being aggrieved parties."

Watros v. Greater Lynn Mental Health & Retardation Assn., 421

Mass. 106, 111 (1995).     Accordingly, we proceed to the merits of

the appeal.

    2.    HAC decision directing issuance of comprehensive

permit.   a.   Overview.   The act "is designed to facilitate the

development of low and moderate income housing in communities

throughout the Commonwealth."     Zoning Bd. of Appeals of
                                                                   9


Holliston v. Housing Appeals Comm., 80 Mass. App. Ct. 406, 413

(2011) (Holliston).   To carry out the legislative purpose, "the

act establishes a streamlined comprehensive permitting

procedure, . . . permitting a developer to file a single

application to the local zoning board of appeals for

construction of low or moderate income housing."   Standerwick,

447 Mass. at 29, citing G. L. c. 40B, § 21.   See Dennis Hous.

Corp. v. Zoning Bd. of Appeals of Dennis, 439 Mass. 71, 76

(2003) ("act was intended to remove various obstacles to the

development of affordable housing, including regulatory

requirements that had been utilized by local opponents as a

means of thwarting such development in their towns").

     A developer may appeal a board's denial of an application

for a comprehensive permit to the HAC.10   See G. L. c. 40B, § 22.

"The HAC's review is limited to the issue whether 'the decision

of the board of appeals was reasonable and consistent with local

needs.'"11   Holliston, supra at 414, quoting from G. L. c. 40B,


     10
       The HAC is a five-member body within the Department of
Housing and Community Development. See G. L. c. 23B, § 5A.
     11
       Under G. L. c. 40B, § 20, inserted by St. 1969, c. 774,
§ 1, "requirements and regulations shall be considered
consistent with local needs if they are reasonable in view of
the regional need for low and moderate income housing considered
with the number of low income persons in the city or town
affected and the need to protect the health or safety of the
occupants of the proposed housing or of the residents of the
city or town, to promote better site and building design in
relation to the surroundings, or to preserve open spaces, and if
                                                                  10


§ 23, as amended by St. 1998, c. 161, § 261.   See 760 Code Mass.

Regs. § 56.07(1)(b) (2008) ("In the case of the denial of a

Comprehensive Permit, the issue shall be whether the decision of

the Board was Consistent with Local Needs").   The local needs in

question concern the availability of affordable housing.

Whether a board's decision is consistent with local needs refers

to whether a town's "valid planning objections to the proposal,

such as health, site design, and space," Zoning Bd. of Appeals

of Wellesley v. Ardemore Apartments Ltd. Partnership, 436 Mass.

811, 815 (2002) (Wellesley), reasonably accommodate affordable

housing.

     Where, as here, a town's stock of affordable housing is

below ten percent at the time of the application, and the town

has not otherwise fulfilled its minimum housing obligation, see

Wellesley, supra at 815 n.10; G. L. c. 40B, § 20; 760 Code Mass.

Regs. § 56.03(1) (2008), "the regulations and our cases provide

that there is 'a rebuttable presumption that there is a

substantial Housing Need which outweighs Local Concerns,'"12




such requirements and regulations are applied as equally as
possible to both subsidized and unsubsidized housing."
     12
       Like the phrase "local needs," the phrase "local
concerns" is also a term of art, defined as "the need to protect
the health or safety of the occupants of a proposed Project or
of the residents of the municipality, to protect the natural
environment, to promote better site and building design in
relation to the surroundings and municipal and regional
                                                                   11


Zoning Bd. of Appeals of Sunderland v. Sugarbush Meadow, LLC,

464 Mass. 166, 171 (2013) (Sunderland), quoting from 760 Code

Mass. Regs. § 56.07(3)(a) (2012).

    Finally, under G. L. c. 40B, § 22, the HAC's decision may

be reviewed by a judge of the Superior Court in accordance with

G. L. c. 30A.   The reviewing judge considers whether the HAC's

decision was arbitrary, capricious, lacking substantial

evidence, or otherwise contrary to the law, and whether the

substantial rights of any party have been prejudiced.      See

Sunderland, supra at 172, citing G. L. c. 30A, § 14(7).      The

substantial evidence standard is particularly appropriate "'in

light of the heavy burden borne by a local board that denies a

comprehensive permit application' to prove 'a specific health or

safety concern of sufficient gravity to outweigh the regional

housing need.'"   Holliston, 80 Mass. App. Ct. at 414-415

(citation omitted).

    b.   Developer's burden on appeal to HAC.     As an initial

matter, the abutters contend that the HAC should not even have

reached the ultimate question whether Andover's municipal

planning needs outweighed local needs for affordable housing

because the developer's application, on its face, was not worthy

of consideration.     "Before the HAC, a developer whose



planning, or to preserve Open Spaces."    760 Code Mass. Regs.
§ 56.02 (2008).
                                                                  12


comprehensive permit has been denied may establish a prima facie

case by proving 'that its proposal complies with federal or

state statutes or regulations, or with generally recognized

standards as to matters of health, safety, the environment,

design, open space, or other matters of Local Concern.'"     Id. at

415, quoting from 760 Code Mass. Regs. § 56.07(2)(a)(2) (2008).

"The regulatory scheme governing applications for comprehensive

permits . . . requires only preliminary plans" showing that the

proposal conforms to generally recognized standards.   Ibid.,

citing 760 Code Mass. Regs. § 56.05(2) (2008).

    In contending that the evidence proffered by the developer

was insufficient to establish a prima facie case, the abutters

take issue with the testimony of the developer's expert witness

based on his unfamiliarity with Andover's planning history.

Furthermore, they argue that other evidence before the HAC

contradicted much of the testimony of the developer's witnesses.

In determining that the developer met its burden of establishing

a prima facie case, the HAC credited the "extensive testimony"

of the developer's expert, whom it characterized as "an

experienced municipal planner," together with the testimony of

the manager of the proposed project, "an experienced real estate

development specialist."

    "[W]here, as here, the HAC heard competing experts, '[i]t

is for the agency, not the reviewing court, to weigh credibility
                                                                   13


of witnesses.'"   Sunderland, 464 Mass. at 184, quoting from

MacLean v. Board of Registration in Nursing, 458 Mass. 1028,

1030 (2011).   "[W]e must indulge all rational presumptions in

favor of the validity of the HAC's determinations, including its

choice between two fairly conflicting views, giving due weight

to its experience, technical competence, and specialized

knowledge."    Holliston, supra.   We discern no error in the HAC's

conclusion that the developer established a prima facie case.

    c.   HAC's evaluation of municipal planning concerns.      Once

the developer established its prima facie case, the burden

shifted to the board to prove "first, that there is a valid

health, safety, environmental, design, open space, or other

Local Concern which supports such denial, and then, that such

Local Concern outweighs the Housing Need."     760 Code Mass. Regs.

§ 56.07(2)(b)(2) (2008).    See Holliston, supra.   The abutters

assert that the proposed project's grave incompatibility with

Andover's municipal master plan is a compelling local concern

that outweighs regional housing needs.     See Zoning Bd. of

Appeals of Lunenburg v. Housing Appeals Comm., 464 Mass. 38, 48-

49 (2013) (Lunenburg) ("The HAC recognized that a town's long-

term comprehensive planning efforts, 'when expressed in a bona

fide, effective master plan or comprehensive plan,' may be so

substantial a local concern as to outweigh the regional need for

affordable housing").
                                                                   14


    In weighing a town's adherence to its master plan against

its housing needs, the HAC has developed a two-part analysis:

    "First, it determine[s] whether the master plan was a
    legitimate local concern by asking three questions, all of
    which [have] to be answered in the affirmative for the
    master plan to be weighed as a local concern: '(1) Is the
    plan bona fide? (Was it legitimately adopted, and, more
    importantly, does it continue to function as a viable
    planning tool in the town?); (2) Does the plan promote
    affordable housing? and (3) Has the plan been implemented
    in the area of the site?' After finding that the town's
    master plan met this test, the HAC turn[s] to the second
    part of the analysis: the weight to be given to the master
    plan as a local concern."

Id. at 49.

    The HAC determined that Andover's master planning passed

the three-question threshold test.   The HAC found that Andover

had "a solid history of planning," having engaged in master

planning since 1956, resulting in not only a bona fide master

plan, but also in a community development plan and a housing

plan, both addressing affordable housing.   The HAC further found

that the master plan and ancillary plans had been implemented

throughout Andover, including in the area of the project site.

    Accordingly, the HAC turned to the second, and dispositive,

part of the analysis -- whether Andover's recognized planning

interests outweigh its affordable housing needs.   The statute

that defines the HAC's oversight role does not provide detailed

guidance in the application of this test.   It prescribes only

the ultimate issue:   "The hearing by the [HAC] shall be limited
                                                                    15


to the issue of whether, in the case of the denial of an

application, the decision of the board of appeals was reasonable

and consistent with local needs."   G. L. c. 40B, § 23, as

amended by St. 1998, c. 161, § 261.     The HAC's regulations,

specifically 760 Code Mass. Regs. § 56.07(3)(b)-(h) (2008),

provide additional guidance in weighing evidence of local

concerns such as health, safety, and the environment, see

§ 56.07(3)(d); open space, see § 56.07(3)(f); and municipal and

regional planning, see § 56.07(3)(g).

     In previous decisions, the HAC had focused on two questions

in determining how much weight to give a town's master plan:

"first, whether the affordable housing plan aspect of the master

plan 'has actually shown results' in terms of the construction

of affordable housing, and second, whether the proposed project

is inconsistent with and would undermine the plan to a

significant degree."   Lunenburg, supra.    Here, noting that the

tension between affordable housing and broad municipal planning

efforts is a recurring issue, and that the regulations "ha[d]

recently been strengthened to explicitly include housing

planning,"13 the HAC endeavored "to clarify the standard we

apply," by enunciating a flexible four-factor test:


     13
       In this regard, the HAC quoted from 760 Code Mass. Regs.
§ 56.07(3)(g) (2008), which requires the HAC to receive evidence
and consider "1. a municipality's master plan, comprehensive
plan, housing plan, Housing Production Plan, or community
                                                                  16


    "Consistent with our precedents and regulations, the
    analysis of these complex, interrelated interests can be
    broken into several factors. The Board need not introduce
    evidence with regard to each of these, but it must
    introduce enough evidence to cumulatively establish a local
    concern of sufficient weight to outweigh the regional need
    for affordable housing. The Board may establish the weight
    of its local planning concern by demonstrating the
    following:

    "1.   The extent to which the proposed housing is in
          conflict with or undermines the specific planning
          interest.

    "2.   The importance of the specific planning interest,
          under the facts presented, measured, to the extent
          possible, in quantitative terms . . . .

    "3.   The quality . . . of the overall master plan (or other
          planning documents or efforts) and the extent to which
          it has been implemented. A very significant component
          of the master plan is the housing element of that plan
          (or any separate affordable housing plan). The
          housing element must not only promote affordable
          housing, but to be given significant weight, the Board
          must also show to what extent it is an effective
          planning tool. . . .

    "4.   The amount [and type] of affordable housing that has
          resulted from affordable housing planning."

    The abutters assert that the HAC did not merely clarify the

test it had been applying for decades but, rather, "moved the

goalposts, . . . inventing a new scheme . . . in a transparently

outcome-driven 'four-part analysis.'"   We disagree.   The four

so-called "new" factors delineated by the HAC are simply a more

detailed explication of the two factors previously described in



development plan; 2. the applicable regional policy plan; and
3. the results of the municipality's efforts to implement such
plans."
                                                                   17


the Lunenburg decision.14   The first two factors in the restated

test assist the HAC in identifying specific municipal planning

interests and determining the extent to which the proposed plan

interferes with those interests.    The third and fourth factors

attempt to quantify the extent to which municipal planning has

actually shown results in terms of promoting affordable housing.

All four factors address the ultimate issue whether local

concerns relating to municipal planning outweigh the local need

for affordable housing.

     "It is a recognized principle of administrative law that an

agency may adopt policies through adjudication as well as

through rule-making."   Arthurs v. Board of Registration in Med.,

383 Mass. 299, 312-313 (1981).     Even so, the test the HAC

enunciated here was entirely consistent with its prior policies

and was well within its statutory and regulatory authority.



     14
       Indeed, the four-factor test is not appreciably different
from the test HAC applied in Stuborn Ltd. Partnership vs.
Barnstable Bd. of Appeals, Housing Appeals Committee, No. 98-01,
slip op. at 3 (Sept. 18, 2002), which the abutters cite as "the
HAC's own established and reported standard regarding municipal
planning." The decision states that if a town's comprehensive
plan satisfies the three-question threshold test, the HAC must
then determine "the amount of weight [to] give to the plan," the
question whether "the proposed housing actually [would]
undermine the plan to a significant degree," and "whether the
housing element of the comprehensive plan has actually shown
results." Id. at 3 & n.5. "That is, we consider the totality
of the town's planning interests, and determine whether those
interests are sufficient to outweigh the regional need for
affordable housing." Id. at 3.
                                                                  18


    One cautionary observation is in order.      In Board of

Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 367

(1973), the decision that established the constitutional

validity of the act, the court stated that a municipality's

failure to meet its minimum housing obligations "will provide

compelling evidence that the regional need for housing does in

fact outweigh the objections to the proposal."     In the

conclusory paragraph of its analysis, the HAC here, seizing on

the Supreme Judicial Court's use of the word "compelling,"

commented that "the relatively low goal of 10% is a minimum, and

that well more than 10% of most communities' housing stock would

need to be low or moderate income in order to satisfy the

growing need for affordable housing."    To the extent this

statement can be read as raising the ten-percent threshold, such

an action would exceed the HAC's statutory and regulatory

authority.   When a town that has fulfilled its minimum housing

requirement denies a comprehensive permit, the HAC is compelled

to affirm the decision.    See G. L. c. 40B, §§ 20, 23.

    While the HAC's phrasing was perhaps inapt, we read this

remark as a rhetorical flourish, not as an expression of a new

standard.    It is uncontested that Andover was below the ten-

percent threshold when the developer applied for the

comprehensive permit.     Under well-established law, this fact

created a rebuttable presumption that the need for affordable
                                                                   19


housing outweighed local concerns.      As discussed in the next

section, in determining whether Andover had rebutted that

presumption, the HAC properly balanced Andover's municipal

planning efforts against the local need for affordable housing.

    d.      Review of HAC's decision.   Turning to the HAC's

resolution of the ultimate issue, "the agency's decision must be

upheld if supported by 'such evidence as a reasonable mind might

accept as adequate to support a conclusion,' and we must indulge

all rational presumptions in favor of the validity of the

agency's determinations."     Middleborough v. Housing Appeals

Comm., 449 Mass. 514, 528 (2007) (citation omitted).

    The HAC considered each of the specific planning interests

raised by the board in denying the developer's application:

that housing in the River Road industrial D district would

conflict with longstanding efforts to preserve the area for

commercial and industrial uses, that the proposed residential

use would conflict with the surrounding commercial and

industrial uses, and that the use of the site for housing rather

than commerce would have a negative impact on municipal tax

revenues.

    The HAC acknowledged that the construction of housing at

the site was contrary to Andover's interest of developing all

the lots in the office and industrial park for commercial use.

In this regard, it considered the board's "strongest argument"
                                                                   20


to be that, based on unrebutted testimony, a business on the

site could generate from 400 to 800 jobs.   However, the HAC

found that "it is by no means apparent that a business employing

those workers would not simply locate in another part of

Andover."   Indeed, the fact that this hoped-for employer had not

materialized on the site was the very reason the previous owner

sold it to the developer.   Moreover, the HAC noted that the area

was already well established as a business zone, and that

because the proposed housing development would be built on the

last vacant lot, the board "cannot point to possible foregone

employment associated with future businesses that might be

reluctant to locate in a subdivision whose future is uncertain."

Accordingly, the HAC concluded, "On the evidence presented to

us, we find that the importance of the interest in job creation

in this situation is relatively low."

    With respect to the claimed "important interest in

preventing conflicts that may arise after construction between

the users of adjacent residential and commercial industrial

sites," the HAC found the evidence vague and speculative.      None

of the abutters' witnesses on this issue was able to provide

specific evidence of incompatibility.   The evidence showed that

"all of the ten existing business sites contain offices," and

"while many of them also contain research and development

activities or manufacturing, their operations are not of the
                                                                   21


sort that would generally be perceived as offensive."    One

witness described "noise disturbance and heavy truck traffic,"

but another found no "noise vibrations, fumes, odors, truck

traffic or the like."   Although the HAC acknowledged that minor

conflicts could occur, such as "children occasionally riding

bicycles on private property," it concluded that the interest

"in preventing conflicts between residential and office and

industrial uses at this location is of negligible importance."

    Finally, when reviewing the concern regarding municipal tax

revenue, the evidence showed that the potential property tax on

a new industrial or commercial facility, from $600,000 to $1

million annually, would be largely offset by tax benefits that

Andover offers to business property owners.    The total annual

property tax revenue from all ten existing businesses was only

$1.5 million.   The HAC found the evidence to be "ambiguous, and

without further elaboration it is insufficient to show that

foregone [sic] tax revenues are of great importance."

    Turning to the quality of the master plan and the results

achieved in terms of affordable housing, the HAC identified as a

"major shortcoming" the fact that "multifamily housing is not

permitted as of right anywhere in the town."    While the master

plan does give "careful thought" to affordable housing and

provides "effective planning tools," the HAC found that the

"evidence is not detailed, however, nor is it clear to what
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extent town staff or volunteer groups have been assigned

responsibility for specific actions and have followed through on

those actions."   Thus, although the HAC found the master plan to

be "generally implemented" and of "moderate quality," it

concluded that Andover had done little to encourage affordable

housing.   The affordable housing that had been built was not "as

a result of the town's planning efforts" but, rather, "despite

the town's master plan and affordable housing plan."

    Balancing what it found to be relatively weak interests

asserted by the board and the abutters against Andover's failure

to meet the statutory minimum ten-percent affordable housing

obligation, the HAC concluded that the board "has not sustained

its burden of proof, but that, on the contrary, the local

concerns it has asserted do not outweigh the regional need for

affordable housing."   "[W]e give 'due weight to the experience,

technical competence, and specialized knowledge of the agency,

as well as to the discretionary authority conferred upon it,'

G. L. c. 30A, § 14(7), and we 'apply all rational presumptions

in favor of the validity of the administrative action.'"

Lunenburg, 464 Mass. at 43, quoting from Middleborough v.

Housing Appeals Comm., 449 Mass. at 524.   Moreover, we "may not

displace an administrative board's choice between two fairly

conflicting views, even though the court would justifiably have

made a different choice had the matter been before it de novo."
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Zoning Bd. of Appeals of Wellesley v. Housing Appeals Comm., 385

Mass. 651, 657 (1982).   Giving the appropriate deference to the

HAC, we hold that its decision to require Andover to issue a

comprehensive permit to the developer is supported by

substantial evidence, and is not arbitrary, capricious, or

otherwise contrary to the law.   See Lunenburg, supra;

Sunderland, 464 Mass. at 172.

                                    Judgment affirmed.
