SJC tells state and towns to settle affordable housing problems jointly

By John R. Ellement, Globe Staff

The Supreme Judicial Court today refused to referee one part of the continuing struggle between local governments and the state over the controversial 40B affordable housing law.

The state's highest court concluded in two cases involving the towns of Hingham and Wrentham that the communities, developers, and the state must search for agreement in the administrative arena before turning to the courts to resolve the issues.

"This case is not one of the rare cases that warrants an exception to the exhaustion requirement,'' wrote Justice Roderick I. Ireland in the Hingham case.

And for Wrentham, Ireland wrote, "the town has failed to exhaust its administrative remedies.''

In broad terms, both communities wanted the courts to weigh in on the way the state Department of Housing and Community Development determines that 10 percent of a town's housing stock is considered affordable housing. Once that threshold is reached, developers cannot essentially bypass local zoning rules.

David Weiss, a Boston attorney who has represented 40B developers and has closely watched the SJC’s examination of the affordable housing law, said today’s rulings clarify the rules for everyone involved in the sometimes bitter process.

“When you bring a lawsuit outside the normal (administrative) process, it makes everybody involved face a more complicated and unpredictable path to the end result,’’ he said. “It’s better for the orderly development of affordable housing.’’