AARON GORNSTEIN
Court’s ruling clear
In a ruling that housing advocates are calling a victory for the state’s so-called anti-snob zoning law, the state’s highest court has ruled that a local planning board can’t sue another town board for issuing a permit to build a retirement community.
The case involved the Hingham Planning Board, which was challenging the Zoning Board of Appeals for granting a comprehensive permit under the state’s Chapter 40B law to a developer who wants to build a retirement complex featuring apartments, assisted living units and a nursing home.
The Supreme Judicial Court ruled earlier this month that the Planning Board didn’t have legal standing to sue the ZBA. If the court had ruled that the Planning Board could sue the ZBA, housing advocates feared it would have opened the door to other lawsuits involving Chapter 40B housing developments.
“It really would have thrown a wrench in the system to enable planning boards to sue and challenge the ZBA decisions – which would probably happen more frequently,” said Aaron Gornstein, executive director of the Citizens’ Housing and Planning Association. An attorney with the Boston law firm Goulston & Storrs filed a brief on behalf of CHAPA in opposition to the suit.
But Hingham’s planners argued that the case had to do with the manipulation of a process that is supposed to yield affordable housing units for the community, but in actuality won’t.
Lawyers for the Planning Board maintained that the ZBA should have never granted a permit to the Maryland-based developer, Erickson Retirement Communities, because the proposed project didn’t meet the Chapter 40B criteria. Chapter 40B is a law that allows developers to practically bypass local zoning and get an expedited review of their project proposal under the comprehensive permit process in communities where less than 10 percent of the housing stock is affordable. But to go through the comprehensive permitting process, the developer must set aside at least 25 percent of units in the proposed project for lower-income households.
‘Short Shrift’
Erickson – the developer of a similar retirement campus in Peabody called Brooksby Village – is planning to build 1,750 rental apartments, an extended care center with 192 units and a 324-bed nursing facility at 409-413 Whiting St. Some 27.7 percent of the units will be occupied by households with incomes that are no higher than 80 percent of the area median income. According to Hingham’s planners, however, the project didn’t meet the “affordable” criteria because of the large initial entrance deposits that were required – from $142,000 up to $326,000 depending on the size of the unit. In addition, they argued that the Department of Housing and Community Development had earlier indicated that it wouldn’t count any of the units as “affordable.” Only 2.35 percent of Hingham’s housing is designated as affordable by DHCD.
“The SJC’s recent decision concerning the Erickson project was a disappointment, but the Planning Board remains firm in its belief that the spirit of the affordable housing law known as Chapter 40B was given short shrift in this instance,” the Planning Board said in a prepared statement released after the ruling was issued. “The ultimate loser in this case is the town of Hingham. The effect of this decision will in all likelihood mean that the town’s housing inventory will explode, but its affordable housing stock will not.”
In a letter from DHCD dated Nov. 26, 2001, the agency stated that none of the units will “qualify for inclusion in the subsidized housing inventory.” The agency noted several reasons for not counting the units, including the high entrance fees and the monthly rents and services fees. The usual measure of affordability, according to DHCD, is that an income-eligible household should not be required to spend more than 30 percent of their income for housing. In this case, households would be spending as much as 60 percent of their income for the monthly rent and service fees.
In March, however, DHCD reversed course, agreeing to count 10 percent of the units of the 1,750 units – or 175 units. In a letter dated March 29, 2002, DHCD Director Jane Wallis Gumble wrote that the agency “determined that project provides affordable housing qualifying under Chapter 40B.” In that letter, Gumble stated the decision was made based on how the comprehensive permit will be administered. Part of the reason for the change was that the developer had set up an interest-free grant program to help residents pay the entrance fees, and residents who receive a subsidy will receive the same long-term health care benefits as those that didn’t.
Despite DHCD counting some of the units, some town leaders say that the agency should be counting all the units as affordable. Susan Murphy, a member of the Planning Board, said she finds it “particularly troubling” that DHCD won’t give the town the benefit of its own policies. She argues that under DHCD’s own rules, all the units in Chapter 40B rental projects must be counted as affordable.
“If Erickson does have a valid 40B permit, then DHCD is unfairly applying its own policies. It will currently only count 10 percent of the Erickson units. If this is a valid permit for rental housing, then under DHCD’s own written policies … DHCD must count 100 percent [of the] units in Hingham’s affordable housing inventory,” said Murphy.
“Although DHCD has declined to state whether or not the permit is valid, I believe its unwillingness to give Hingham the credit for the units is tantamount to a statement that DHCD doubts that the permit meets the generally accepted minimum requirement for affordable housing in Massachusetts,” she added.
CHAPA’s Gornstein said while he understands the concern of the Planning Board, the SJC ruling is clear.
“From a legal point of view they did not have standing in this case,” he said.
A lawyer from Mintz Levin Cohn Ferris Glovsky and Popeo in Boston representing Erickson referred all questions from Banker & Tradesman to the company’s managing director Dan Rexford. Rexford did not respond to messages from Banker & Tradesman by press time.
