The above photograph shows an example of the kind of homes that could get built at the proposed Pine Grove Estates in Middleborough if the state Supreme Judicial Court gives the go-ahead.
The same town that is clamoring for a world-class casino is fighting a modest single-family home subdivision all the way to the state Supreme Court.
Officials in Middleborough, a bucolic community south of Boston, have embraced a proposed Mashpee Wampanoag Indian’s gambling facility on 300 acres that could draw millions of patrons annually. But the town has steadfastly opposed construction of Pine Grove Estates – 10 single-family homes – under Chapter 40B, the state’s so-called anti-snob zoning law.
“I have to chuckle at Middleborough’s pursuit of a casino,” said Paul D. Wilson, an attorney who filed a brief with the Supreme Judicial Court in favor of the project on behalf of three housing agencies. “The fact that there’s been seven years’ worth of effort to prevent less than a dozen homes from being built strikes me as odd compared to the major traffic and other impacts a casino will bring.”
Officials insist that the casino will bring in $7 million annually at a time when Middleborough is trimming its budget, plus as much as up to $150 million for improvements in the town’s water system, sewers and roads. The town’s 14,377 voters will have their views heard on the Foxwoods-style gambling facility at a Town Meeting on July 28.
The housing case that pits New Bedford-based developer Delphic Assoc. against Middleborough, the self-described “Cranberry Capital of the World,” is in the hands of the Massachusetts Supreme Judicial Court. On one side is a developer who has won every round in court and on the other is the state’s second-largest town by land area, which has refused to concede defeat.
And in the middle of it all is Chapter 40B. Beyond obvious exceptions such as abortion, the death penalty and gay marriage, few laws inspire more passionate debate.
Housing advocates insist that without the statute, 43,000 units would never have been built. Of that number, 23,000 affordable homes have been reserved for income-eligible households. The law was enacted in 1969 after legislators were convinced that towns were erecting barriers to construction with 1- and 2-acre lot zoning, as well as density and growth caps.
Under 40B, at least 25 percent of a project’s units must be affordable and they are guaranteed to stay low-priced from 30 to 99 years. It is impossible to distinguish the market rate dwellings from the affordable ones, developers say.
But local officials say the law, which allows developers to override zoning regulations unless 10 percent of a municipality’s housing stock is affordable, is wreaking havoc. They argue that new housing is straining services and schools in cash-strapped communities. As a result, many suburban planning officials often fight 40B projects hoping developers will disappear.
‘Fears of the Unknown’
So far, only 51 of the state’s 351 cities and town have met the 10 percent affordable threshold. Communities use a variety of reasons to explain why they oppose construction of the developments: too much traffic; the impact on the town’s rural character; insufficient waste and water systems; schools that are already overburdened.
But Robert Engler, a consultant at Stockard Engler Brigham LLC who has worked with developers in 175 Bay State communities since 1972 – resulting in the permitting of over 8,500 units of housing – said the stated reasons from communities are not always authentic. He noted that the same towns that fight 40B do not reject standard single-family subdivisions.
“I’ve seen two generations offering the same fears of the unknown: ‘Who are these people who buy affordable homes? What does it mean to our town? What will be the impact on traffic?'” said Engler.
Wilson, the attorney from the law firm of Mintz Levin Cohn Ferris Glovsky and Popeo who is representing MassHousing, the Massachusetts Housing Partnership and the Citizens’ Housing and Planning Association, said the issue is about control.
“There are towns in the commonwealth who resent the loss of local control that Chapter 40B proposes and that’s what’s going on in the Middleborough case,” he said. “The [Zoning Board of Appeals] didn’t like Pine Grove Estates and resent the fact that they can’t say no to it and vowed to delay it to death.”
Still, Wilson said he understands public officials who want to monitor development.
“If I were a town official, I would want to control what’s built in my town, but 40B was enacted because towns were abusing their power to keep people out,” he said. “So the Legislature said towns have to cede some local control until they reach that 10 percent threshold – and, once they do that, they can have the control back.”
In 2000, the Middleborough Zoning Board of Appeals unanimously rejected an application by Delphic Assoc. to build 10 homes on a 4-acre site on Rocky Gutter Street. Three of the units will be set aside for low- or moderate-income families.
Delphic appealed the decision to the state’s Housing Appeals Committee, which overturned the ZBA vote and ordered the town to issue the permit. Middleborough appealed to Superior Court, the Appeals Court and finally to the Supreme Judicial Court after the two courts came down on the developer’s side. An SJC decision is expected shortly.
The case before the SJC will focus on whether the project’s funder is eligible to provide financing to an affordable housing project under Chapter 40B. The lender is the New England Fund of the Federal Home Loan Bank of Boston.
Jonathan D. Witten, Middleborough’s attorney who argued the town’s case before the SJC, said the NEF does not meet the statutory requirements.
“We argue that the statute requires a subsidy from a federal or state government so local officials would have some control,” he said. “If a private bank is an appropriate subsidizing agency under the law, then 40B has no checks or balances and towns are forever at the whim of the private development community.”
Witten said he does not see any irony in Middleborough welcoming a casino but spent nearly a decade fighting 10 homes.
“Talk about irony – here’s a town where the housing stock was already affordable and yet the town is still being run over roughshod with 40B,” he noted.
The median price for a single-family home in Middleborough for the first five months of 2007 was $305,500, according to The Warren Group, parent company of Banker & Tradesman. The seven market-rate units at Pine Grove Estates would be priced in the high $300,000s while the three affordable units would be sold for $170,000 to eligible buyers.
Witten, who has helped many communities fight 40B projects, said Middleborough officials are not snobs and are not trying to keep the affordable housing units out of town.
“Middleborough is more affordable than most Massachusetts communities; it has more mobile homes than most,” he said. “It’s not a question of affordability or snobbery. It’s a question of the statute that requires something, and why shouldn’t we defend the requirements of the law?”
