The Massachusetts Supreme Judicial Court has sided with a developer who wants to build mixed-income housing on this Lexington site.
A pair of recent decisions by the state’s highest court will remove some of the risk that affordable housing developers face in Massachusetts, according to legal analysts.
The Supreme Judicial Court recently sided with developers in cases involving mixed-income housing that was proposed in Lexington and Canton under Chapter 40B, the state’s chief affordable housing law. The law enables developers to go through a streamlined permitting process in communities where less than 10 percent of the housing stock is affordable.
In both cases, the towns had reached the 10 percent state mandate for affordable housing while the developers were appealing decisions made by the local zoning boards. The towns argued that they no longer had to consider the proposals because they met their affordable housing requirements.
Theodore C. Regnante, a Wakefield attorney who submitted a brief in both cases for the Boston-based Citizens’ Housing and Planning Association, said the decisions are “very pro-developer.”
“The Â… decisions encourage developers to continue with 40B development since they add a level of certainty to the process,” Regnante said.
In the Lexington case, Rising Tide Development applied for a permit to build 48 homes.
The Lexington Zoning Board of Appeals granted a permit for only 28 units. At the time of the decision, less than 10 percent of the town’s housing was affordable.
The developer appealed the decision to the Housing Appeals Committee, a state administrative agency, arguing that the reduction of units made the project uneconomic. The HAC ordered the ZBA in April 2005 to issue a permit for 36 units. But during the appeals process, Lexington approved another project that pushed Lexington over the 10 percent threshold.
Jonathan D. Witten, an attorney who represents the abutters, argued that the HAC’s jurisdiction is “extinguished” once the town reached the 10 percent housing goal.
Chapter 40B does not specify the date for calculating when a community has met the 10 percent affordable housing requirement. But the state Department of Housing and Community Development adopted a regulation in 2004 that sets the calculation date as the date a zoning board files its decision on a project. The town asked the court to invalidate that regulation.
But the SJC found that the “regulation is consistent with the language of the act and is rationally related to its purposes.”
‘A Good Decision’
“I think it is a good decision because it takes away what is a major source of uncertainty [in the 40B process],” said David Weiss, an attorney with Goulston & Storrs who represented the developer.
Weiss said some affordable housing projects wouldn’t be pursued “if developers couldn’t know if the full benefits of the law were available in the town until as much as two years,” after a decision is made.
Witten did not return a call from Banker & Tradesman by press deadline.
DHCD changed some Chapter 40B regulations in February. The cutoff date for counting affordable units is now the day that the developer applies for a comprehensive permit.
In Canton, the Zoning Board rejected a comprehensive permit application by Canton Property Holding LLC for a 227-unit development. The developer appealed to the HAC. But during the appeal, the town approved two other developments that brought its affordable housing count to just over the 10 percent threshold. The town asked the HAC to dismiss the case, but the committee refused and ultimately vacated the board’s denial of the project in September 2005.
The Zoning Board appealed to the Norfolk Superior Court and, in November 2006, the court ruled that the HAC lost its powers to hear the appeal because the town exceeded its 10 percent requirement. But the SJC reversed the lower court’s decision.
“Because the Superior Court judge deemed that HAC was without authority to consider CPH’s appeal, he did not address the grounds on which the board denied the permit. Our conclusion that HAC did have authority to hear the appeal requires that the complaint be considered on the merits,” the SJC said.
