A trio of recent decisions, two by the state’s Supreme Judicial Court (SJC) and one from the appellate court, should provide a boost to developers of affordable housing, with the courts going out of their way to shut down several common arguments towns use to deny zoning permission to developers.
The three cases all pitted municipal Zoning Board of Appeals (ZBA) versus affordable housing developers, and involve the state’s comprehensive permit act, commonly known as Chapter 40B. Chapter 40B allows developers to bypass a town’s zoning regulations so long as the development they plan includes a certain proportion of affordable housing units and fewer than 10 percent of the town’s existing units are deemed affordable.
“These two [SJC] cases are really closing off a lot of the objections [attorneys for towns] raise to these projects,” said Kathleen M. O’Donnell, a real estate attorney in private practice and former president of the Real Estate Bar Association. For some attorneys who represent towns, she said “it’s really going to cut into a lot of their business.”
The towns in the SJC cases raised several different reasons to deny the applications. But the SJC ruled against the municipalities in both cases.
In Sunderland, the SJC ruled that the opinion of a local safety official did not outweigh that of the housing appeals court. And in Lunenburg, the court said that the fact that the town had created a master plan for affordable housing didn’t mean it could turn down a different proposal when it hadn’t acted on that master plan in years.
But perhaps the most important ruling was on the issue of what counts as affordable housing at all. Both Sunderland and Lunenburg argued that since the rents on many other existing privately-owned apartments in town were at or below what the state deemed affordable under its guidelines, the town didn’t have to allow new subsidized housing to be built.
The SJC disagreed. The court held that the “10 percent” threshold established under Chapter 40B applied not to whether 10 percent of units were currently affordable, but whether 10 percent of units were guaranteed to stay affordable in the future.
“[T]he plain text of both the act and the governing regulations require the [housing appeals court], in weighing the housing need, to exclude from consideration any affordable housing that is not subsidized under a qualifying government-sponsored program,” the court ruled.
That ruling deals a serious blow to the idea, first floated by the Romney administration, that towns ought to be able to count affordable market-rate units toward their 40B quota.
‘Message To The Towns’
Brenda Clement, executive director of the Citizens Housing and Planning Association, a Boston-based affordable housing nonprofit which had written amicus briefs in the cases, said her organization was pleased with the court’s clarifications of 40B, particularly around the issue of market-rate housing.
“Market-rate housing can’t meet those guidelines for good reason, in our minds, because market rate fluctuates with market conditions,” she said.
The appeals court ruling will also provide a boost to developers. In 2006, in a wide-ranging effort to speed up permitting, a new statute was passed allowing developers of large-scale affordable housing projects to have their appeals heard in a special session of the Land Court which is designed to quickly decide such cases.
In Lenox, the town’s ZBA argued that it should be able to have Buccaneer Development’s case against the town heard in the local housing court instead of the Boston-based Land Court. But the appellate court disagreed, ruling that despite the fact that housing courts in Western Massachusetts had traditionally heard these types of cases, the 2006 law superceded that right, re-emphasizing that the need for speed – when it comes to permitting – is paramount.
“This is a real message to the towns out there … that [the court] is going to be rigorous in reviewing the applications of this statute,” said Jeffrey Angley, a principal at Phillips & Angley in Boston who specializes in land use cases. “Towns aren’t going to be allowed to undermine the statute and drag things out forever.”
Taken together, the rulings will make it harder for towns to deny 40B projects, legal experts said, and may help speed permitting.
However, O’Donnell cautioned while the SJC rulings will limit some reasons towns commonly use to deny 40B projects, municipalities won’t be entirely without recourse. The potential environmental impacts of large-scale projects will remain a hurdle for developers, and town planners who can show that they’ve not just written up a master development plan but have been actively trying to follow it will have a lot more flexibility when a project comes along that doesn’t fit.
“The automatic response of towns [to 40B proposals] has been ‘Well, we have a master plan, and it’s not in the master plan,’” she said. “But you can’t just pay the consultant and stick it in a drawer. You have to actually do something.”
