The Supreme Judicial Court issued rulings about affordable housing in cases involving two developments, including Linden Ponds, a full-service retirement community in Hingham. Pictured above is the Oakleaf Clubhouse at Linden Ponds.
In a pair of decisions, the Supreme Judicial Court said it would not interfere in disputes over which residential units can be counted as affordable in Hingham and Wrentham.
But an expert in Chapter 40B, the state’s chief affordable housing law, says the decisions are “outmoded” because regulations approved earlier this year allow towns and developers to clarify how much affordable housing exists within communities.
Chapter 40B mandates that communities keep at least 10 percent of their housing stock affordable to lower-income families.
“Under the new regulations, the towns now have a way to get the determination about whether or not they’re at 10 percent,” said Paul D. Wilson, an attorney with Mintz Levin Cohn Ferris Glovsky and Popeo in Boston.
Hingham officials were fighting to count all the units in a large retirement community as affordable. Wrentham wanted to include a Department of Mental Retardation facility in its count. But the state said the units didn’t qualify, and the SJC ruled that courts shouldn’t intervene until the towns have exhausted “administrative remedies.”
Under Chapter 40B, developers of mixed-income housing can apply for a comprehensive permit and go through a streamlined permitting process in towns with less than 10 percent affordable housing. When communities reach the 10 percent threshold, they can require developers to go through the special permitting process.
Linden Ponds, a 1,750-unit community for people over 55 that includes a skilled nursing facility, was approved by the Hingham Zoning Board of Appeals in 2001. The state typically counts all of the units in rental developments like Linden Ponds as affordable.
But the state Department of Housing and Community Development (DHCD) sent a letter to the town saying only a quarter of the units would be deemed affordable because residents renting the affordable apartments are required to pay hefty deposits.
Residents at Linden Ponds pay refundable entrance deposits ranging from $195,000 to $435,000 and monthly fees ranging from $1,252 to $2,230, according to court documents. The town asked the courts to declare all the units affordable, but the SJC ruled that the town “failed to exhaust its administrative remedies.”
‘Bad Position’
In a similar case in Wrentham, the Zoning Board of Appeals rejected a permit for a 31-condo development. Town officials thought they had met the affordable housing mandate.
The developer appealed to the Housing Appeals Committee, a state administrative body, which found that the town was inappropriately counting units at a Department of Mental Retardation residential facility. The committee ordered the zoning board to reconsider the permit application.
Wilson said DHCD adopted regulations in February that clarify some of the confusion about unit count. Under the new regulations, towns can notify DHCD as soon as they receive a comprehensive permit application if they feel they have 10 percent affordable housing.
“At least now [towns] will go into the process knowing what DHCD’s position is,” he said.
But James A. Toomey, a Quincy attorney who represented Hingham, said the SJC decisions haven’t clarified the issue.
“[The decision] leaves both the developers and the town in a state of uncertainty as to what the count should be, which we think is a bad position for both the town and the developers,” said Toomey.
