With communities, developers, and state officials still grappling over who sets the terms for developments providing affordable housing, the state's highest court is poised to provide some clarity.
On Monday and Tuesday, the Supreme Judicial Court heard seven cases involving the Chapter 40B affordable-housing law. The court's rulings, expected within 130 days, will directly involve more than 2,000 potential housing units in a half dozen cities and towns, including Wrentham, Woburn, Lexington, and Hingham, and will have broad implications for anyone who deals with the regulations designed to encourage the construction of lower-cost units.
"The Supreme Judicial Court in its very first 40B case, back in 1973, said that the statute is 'not without its ambiguities,' and it said the same again last summer" in another 40B ruling, according to Paul Wilson, a lawyer with Mintz Levin, who has represented developers in Chapter 40B cases for more than 20 years.
The state statute enables developers promising to build income-restricted housing to bypass most local zoning rules and pursue a streamlined approval process in communities where fewer than 10 percent of the housing units meet the state's criteria for affordable housing.
Although the number of communities that meet the standard has doubled in the past decade to 51, that leaves 300 cities and towns statewide that are short of the mark - exposing them to 40B applications over which local officials have little control, and feeding their interest in the seven pending cases.
Town of Wrentham Zoning Board of Appeals v. West Wrentham Village LLC: After the developer submitted plans in 2004 to build a 31-unit condominium development on West Street, the Zoning Board of Appeals denied the application on the grounds that Wrentham had already met the 10 percent threshold. Officials had counted units at the Wrentham Developmental Center, a facility run by the state Department of Mental Retardation. The town argues that state regulations allow these units to be counted, but state officials decided that the housing did not qualify, saying the Wrentham facility is more a closed campus than a community-based set of group homes. The state's Housing Appeals Committee and a Superior Court judge upheld the state's interpretation, prompting the town to turn to the SJC.
Woburn Board of Appeals v. Housing Appeals Committee: In this closely watched case, which was argued by Wilson, the SJC must weigh in on the authority that local boards, the state Housing Appeals Committee, and Superior Court have in determining the number of units in a proposal. A decade ago, Wellesley approved a project with conditions that shaved units from a development, and others have followed suit, due to environmental or public-safety reasons, Wilson said. In the case before the court, Woburn reduced the number of units by more than half without specific grounds, he said. Developer Archstone-Smith in 2000 proposed 640 units on about 75 acres off Cambridge Road, nearly three times the number normally allowed under Woburn zoning. "The 640 units was absolutely excessive," said Mayor Thomas L. McLaughlin, who attended the court session Monday. The zoning board approved the project at 300 units. Archstone appealed, and the Housing Appeals Committee and a Suffolk Superior Court judge each determined that Archstone had failed to prove this reduction would make the project "uneconomic," the 40B appeals standard. But then, the appeals committee and the court created a new standard and shifted the burden of proof in the appeal to Woburn's Board of Appeals, said Gary S. Brackett, the lawyer for Woburn. Through a complex process, the committee set a new level for the units at the development, first at 420, then 540. "That's a major shift" in interpreting the law, said Brackett, a municipal lawyer from Worcester. Woburn is seeking a return to the 300-unit decision, he said.
Town of Hingham v. Department of Housing and Community Development: This is a test case for the counting of affordable rental units for senior citizens that require deposits in addition to rent. The state housing agency, which tracks compliance with 40B, typically counts all the units in an apartment complex toward the 10 percent threshold as long as at least 25 percent are rented at below-market rates. (In nonrental 40B developments, only the units set aside as affordable count toward the threshold.) In 2001, developer Hingham Campus proposed the Linden Ponds project, which would include 1,750 rental apartments. Hingham approved the development, and town officials expected it to put them well over 10 percent. But the state agency said it would count only a quarter of the units as affordable, because residents renting the lower-priced apartments must pay six-figure deposits to live there, creating a new category. Hingham is challenging that view. Monday, a lawyer for the state argued that a ruling in Hingham's favor could prompt hundreds of lawsuits challenging the agency's counting methods. It could also "chill" future affordable-housing developments in Hingham, said Sookyoung Shin, an assistant attorney general. But lawyer James Toomey, who represents Hingham, said the state's methods threatened to "deprive the town of the credit it's legally entitled to" under 40B.
Taylor v. Lexington Board of Appeals, and Taylor v. Housing Appeals Committee: Both cases are related to the same project, a Rising Tide Development LLC proposal calling for 36 units on 3.6 acres off Lowell Street. The town approved the project in 2003, but set a condition limiting it to 28 units. The developer and several nearby residents, including William Taylor, appealed the decision. While the first case was working through the appeals process, Lexington in 2005 approved a separate project, by AvalonBay Communities, for 387 units on a portion of the old Metropolitan State Hospital grounds. The development put the town over the 10 percent threshold. The question in the second case is whether that should have voided the Housing Appeals Committee's review of the Rising Tide project. The state appeals committee eventually rejected Lexington's conditions and approved the Rising Tide project at 36 units, and a Suffolk Superior Court judge upheld it on the grounds that the application was grandfathered because it was submitted before Lexington reached 10 percent.
Zoning Board of Appeals of Canton v. Housing Appeals Committee: Canton Property Holding proposed 227 units on about 81 acres off Randolph Street, with a mix of rental and ownership units, as well as 300 units on adjacent land in Randolph. The town board denied the project in 2003, and the developer appealed. At the time, less than 8 percent of Canton's housing stock was considered affordable. But in the interim, the Zoning Board of Appeals approved two other developments, with a combined 180 affordable units that put Canton over 10 percent. The state committee overturned the town's rejection of the Randolph Street development in 2005. But the following year, a Norfolk Superior Court judge ruled that the appeals committee had lost its authority on the matter once Canton reached 10 percent.
Groton Zoning Board of Appeals v. Housing Appeals Committee: This case looks at whether the appeals committee can order a town to convey an easement to enable an affordable-housing development to be built. In 2003, developer Washington Green applied for a permit to build 44 condos on 13 acres off Route 40, next to a Groton Electric Light Department transfer station. The utility refused to let the developer clear vegetation at the entrance. For that and other reasons, the zoning board rejected the project. The appeals committee overturned the decision and ordered the town to issue a permit for the project, with a condition calling for the vegetation on the utility's land to be trimmed. The Superior Court upheld the ruling. However, the town is pressing its appeal that the committee lacks the authority to take property or convey easements, which is the responsibility of Groton Town Meeting.
