Hingham will have to deal with a 177-unit, 40B development project proposed by AvalonBay Communities Inc., after the state rejected the town’s claim that it had passed the state’s threshold for affordable housing.
The decision, issued by the Housing Appeals Committee on Jan. 14, said that despite the town’s claims, less than 10 percent of Hingham's housing can be classified as affordable.
That means the town has not met the 10 percent level required by the state's 40B affordable housing law. In communities that don't meet the requirement, projects proposed under 40B have wide latitude to avoid local zoning ordinances as long as at least 25 percent of the project's housing is sold at an “affordable” level.
“What happens is since the housing appeals court upheld their position, now the Zoning Board will return to having hearings on [the AvalonBay] application. That’s required,” said Selectmen Chair Laura Burns. “Even if we pursue other options. The ZBA has to go back to hear their application in a normal way.”
The development, planned for an 18.5-acre site next to the Derby Street Shoppes, had previously been before the Zoning Board in June.
Even before its formal proposal, the project had received harsh neighborhood criticism, with concern ranging from the traffic to strains on the town’s public works infrastructure.
Due to the concern, and due to the fact that AvalonBay could come into the town without much restriction under 40B laws, the Zoning Board rejected the project at a June hearing.
AvalonBay subsequently appealed the rejection to the state’s Housing Appeals Committee, which sided with the developer over how much affordable housing lies in the town.
“We conclude that Hingham had not achieved the 10 percent housing unit minimum at the time of AvalonBay Communities’ application and therefore may not avail itself of the safe harbor,” the decision states.
It is unclear when the project might be back before the Zoning Board. Avalon Vice President Michael Roberts did not immediately return calls for comment.
The dispute between the town and the state mainly stems from each view the housing at the Linden Ponds retirement community.
According to Massachusetts law, all units in rental developments can all be counted toward a town’s affordable-housing inventory, whereas for condos, only the number of units that are actually affordable can be counted.
The town argues that Linden Ponds is a rental community, but state officials disagree.
Although the town will now have to go through the vetting process with the AvalonBay development, the appeal also means the town can move forward with a decade-long dispute with the state about the town’s inventory.
According to Burns, the town had previously gone to the Supreme Judicial Court on this question, but was sent back without a ruling because they had not gone through all the state’s appeal processes.
“They said we hadn’t exhausted all our administrative relief options before coming to the courts…the process we had not gone through is this one, where the housing appeals court rules,” Burns said. “If we chose, we would now be in a position to go back to the courts if we continue to disagree with [the state].”
Burns said selectmen had not yet met to discuss how they wanted to handle the decision, and that the town could decide not to appeal the ruling.
“We haven’t decided. It’s an option to decide we’re not going to pursue it. I’m not going to rule that out, even though I don’t agree [with the state’s ruling]. We have made no decision yet,” she said.
Because the town recently reconfigured town counsel duties, it's not clear who would represent the town.
Regardless, the Housing Appeals Committee decision does not come as a surprise, Burns said, since that agency is part of the state agency that disputes Hingham's stance on 40B inventory.