The state’s highest court will decide when communities can say no to affordable housing.
The Supreme Judicial Court heard arguments last week in a case involving housing developments in Lexington and Canton. The case centers on what happens to pending appeals of projects when communities reach the required affordable housing count under Chapter 40B, the Bay State’s so-called anti-snob zoning law.
Developers and housing advocates are watching the case.
“For developers specifically it is very important. It takes a lot of money, time and effort to go through the 40B process or even to prepare to go through the process. So it’s important for them to know what rules they’re playing under and to know when a town can say no,” said Paul D. Wilson, an attorney with Mintz Levin Cohn Ferris Glovsky and Popeo in Boston.
“And for the towns it’s important, too. They need to be able to do some long-term planning,” he added.
In Canton, the local Zoning Board of Appeals rejected a comprehensive permit application for a 227-unit development. Under Chapter 40B, developers can apply for comprehensive permits and bypass certain local zoning requirements in communities where less than 10 percent of the housing is affordable.
At the time of the denial in July 2003, less than 10 percent of Canton’s housing stock was affordable to lower-income households. The developer, Canton Property Holding LLC, appealed to the Housing Appeals Committee, a state administrative agency.
But during the appeals process, the town gave the go-ahead to two other developments that brought its affordable housing count to just over the 10 percent state-mandated threshold. The Canton ZBA asked the HAC to dismiss the case involving the 227-unit Canton Property Holding project.
The HAC refused to dismiss the case, 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.
“This is about a project that will create significant traffic snarls on Route 138 at Randolph Street,” Mark Brobowski, who represents the Canton Zoning Board, said in court last Tuesday.
The Norfolk Superior Court decision contradicts a ruling by the Suffolk Superior Court involving a homeownership development in Lexington. The Suffolk Superior Court ruled that a developer already before the HAC can continue the appeal even when the town reached the goal of 10 percent affordable housing stock.
Affordable units are typically counted as soon as a zoning board grants a comprehensive permit, unless an appeal has been filed, according to Wilson
In the Lexington case, the developer applied for a permit to build 48 homes under Chapter 40B. The Lexington Zoning Board of Appeals granted a permit but reduced the number of units to 28. At the time of the decision, the town’s affordable housing supply was below 10 percent.
The developer, Rising Tide, appealed the decision to the HAC, 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.
A group of abutters appealed the granting of the permit, arguing that the storm-water runoff from the project would create serious problems for their properties.
Jonathan D. Witten, who represents the abutters, argued that HAC’s jurisdiction is “extinguished” once the town reaches the 10 percent housing goal.
Wilson said that according to 40B regulations, a developer that has already received a decision from the local zoning board doesn’t need to worry about a town reaching 10 percent afterward.
“I think the SJC will decide in favor of enforcing the regulation that’s out there, which means the developers will win,” he said.
Groups like the Real Estate Bar Association and the Citizens’ Housing and Planning Association have urged the court to reverse the Norfolk Superior Court’s decision.
The Canton and Lexington cases were consolidated into one for consideration by the SJC.
It is one of six 40B cases that the SJC heard last Monday and Tuesday. Wilson said it is unusual for the SJC to hear that many 40B cases over a two-day period.
“I think the SJC has decided approximately seven cases in the last decade,” he said.
Wilson said more cases are emerging as communities reach or exceed the 10 percent mandate.
“Another reason is that towns have become more sophisticated in the way they treat comprehensive permits,” he said.
Towns don’t simply reject comprehensive permits as they had in the past, Wilson noted. Now, they attach conditions to permits, which push cases into the courts, he said.
