David McCarthy

Recently, the highest court in Massachusetts, the Supreme Judicial Court, heard arguments in a case called Carroll v. Select Board of the Town of Norwell. This case centers on a piece of land in Norwell that was set aside for affordable housing back in 2004. Over the next two decades, the town took various steps towards this goal, like assessing the land, studying its development feasibility, and listing it in the town housing production plan as a spot for affordable housing. 

In 2021, the town met with a developer to publicly discuss plans for the land’s development. At that point, some nearby property owners came together to propose a different idea: transferring the land to the Conservation Commission. The heart of the matter is whether the town did enough initially and throughout the years to keep the land reserved for affordable housing. If they did, the town can proceed with the affordable housing project. If not, the abutters will have succeeded in turning the land into conservation space, which would block the much-needed affordable housing. 

A Legal Challenge to Housing 

In many ways, Norwell’s situation reflects the housing challenges faced by Massachusetts as a whole. Most of Norwell’s housing was built before 1980, and very little has been constructed between 2010 and 2017. The town’s zoning rules mainly allow single-family homes, and a significant portion of its land is reserved for conservation purposes. As a result, despite the population growth, housing has become more expensive, and income inequality has increased significantly. 

Some of these challenges are under the town’s control, but they haven’t taken substantial action to address them. Though they have mechanisms in place to support affordable housing, like a community housing trust and the Community Preservation Act property tax surcharge (CPA) they have rarely met the law’s requirement to spend 10 percent of CPA funds on affordable housing. Instead, a significant portion has gone towards open space and recreation initiatives, which can prevent housing development and drive up land costs. 

However, the current legal case is not about funding or the age of housing stock; it’s about community opposition to housing development. Norwell recognized this issue in its 2019 housing production plan, which emphasized the importance of increasing awareness about the need for affordable housing and the value it provides to communities. Yet, just four years later, when the town started taking public steps towards housing development, residents took the matter to the state’s highest court. 

This case illustrates the challenges that many municipalities face. They often work to prevent housing development, and when they need to encourage it, such as to meet statutory safe harbor from developer-driven production under state law Chapter 40B, they encounter resistance from their own residents. We hope the Supreme Judicial Court recognizes the core problem and the importance of affordable housing. This case should set a low bar for reserving land for affordable housing and a high bar for its removal. 

Transfer Tax Debate Shares Echoes 

The same framework applies to the debate on transfer taxes. Proponents have argued that the problem is simply a lack of funding, when many communities refuse to use currently available funding sources or other tools, such as zoning reforms, to permit more housing production. Many of the 17 communities (less than 5 percent of the state) seeking transfer taxes have commonalities similar to Norwell. Foremost, they have a dearth of developable land, often created by conservation, thereby inflating the cost of land for housing. They also tend to be highly litigious, with residents adding millions in legal costs and time lost to proposed housing developments.  

Finally, aside from major cities, their zoning often largely prevents multifamily housing or even starter-homes, instead requiring large single-family homes on large lots. The result is a near-perfect formula for driving up the cost of existing homes and prevent housing development of all types, including deed-restricted affordable housing and naturally occurring market-rate affordability such as can be found in some older multifamily housing.  

Massachusetts has tried to change the dynamics with new laws like MBTA Communities and Housing Choice. The former requires towns near the MBTA to allow multifamily housing by right, while the latter modifies local voting rules to encourage certain smart growth zoning changes. However, these changes have faced opposition in many places. In Norwell’s case, MBTA Communities offers a unique opportunity for the town, which has traditionally allowed mostly age-restricted multifamily housing but now needs to provide family-friendly units under the new law. 

For these laws to succeed, we need to change the narrative. They offer a chance for cities and towns to rethink their spaces, create much-needed housing and boost property tax revenues. They also provide an opportunity for local leaders to engage even their most litigious residents in a discussion about housing. More housing creates stability and leads to better prices and rents, increases property values, even near affordable housing developments and helps us build diverse and vibrant communities. 

David McCarthy is the 2023 president of the Massachusetts Association of Realtors and the managing partner at Keller Williams Metro Boston