The Massachusetts Supreme Judicial Court has rejected an appeal by the town of Middleborough to halt a modest affordable housing subdivision.
In a fight that took seven years of litigation, the SJC sided last Friday with the project’s developer, New Bedford-based Delphic Assoc. The case focused on Chapter 40B, the state’s controversial affordable housing statute.
Attorneys for Middleborough questioned whether the project’s funder was eligible to provide financing to Pine Grove Estates. The lender is the New England Fund of the Federal Home Loan Bank of Boston.
While Jonathan D. Witten, Middleborough’s attorney, argued that the NEF failed to meet the statutory requirements, the court rejected the argument.
“Neither the statute nor the Department of Housing and Community Development’s regulations impose any of the additional restrictions on the source of funds, the scope of the program, or the degree of subsidy that Middleborough would have us read into the act,” Chief Justice Margaret Marshall wrote in her 11-page decision.
Witten could not be reached for comment.
Aaron Gornstein, executive director of the Boston-based Citizens’ Housing and Planning Association, an advocacy group for affordable housing, applauded the decision.
“This is one of the most important court decisions in recent years,” he said. “It upheld the validity of the New England Fund program under Chapter 40B, which has been the largest source of financing for affordable housing production in the past five years. This ends the debate. It’s the final word on this.”
Under the so-called anti-snob zoning law, developers are allowed to bypass local zoning if a community’s affordable housing stock is less than 10 percent in return for designating a portion of the units as affordable. With Middleborough at 5 percent, the New Bedford-based developer proposed 10 single-family homes on a 4-acre parcel, more units than zoning normally allows.
In 2000, the Middleborough Zoning Board of Appeals unanimously rejected an application by Delphic to build 10 single-family homes on Rocky Gutter Street. Three of the units will be set aside for low- or moderate-income families.
Delphic appealed the decision to the state’s Housing Appeals Committee, which overturned the ZBA vote and ordered the town to issue the permit. Middleborough appealed to Superior Court, the Appeals Court and finally to the SJC after the two courts came down on the developer’s side.
CHAPA, along with MassHousing and Massachusetts Housing Partnership, has filed a brief on behalf of the developer in the case.
