Eyes on SJC to clarify 40B law

Affordable housing ambiguities vexing

Email|Print| Text size + By Eric Moskowitz
Globe Staff / February 7, 2008

With communities, developers, and state officials still grappling over who sets the terms for 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 rulings, expected within 130 days, will directly involve more than 2,000 potential housing units in a half-dozen cities and towns in Eastern Massachusetts, including Groton, Lexington, and Woburn, and will have broad implications for anyone who deals with 40B.

The number of 40B cases heard this week roughly equals the number heard by the SJC in the entire preceding decade, said lawyers and housing advocates, and shows how the 1969 law continues to provoke questions from all sides. Law makers this year are dealing with 15 bills to amend or tweak the statute, just as they have in other recent sessions.

"The Supreme Judicial Court in its very first 40B case, in 1973, said that the statute is 'not without its ambiguities,' and it said it again last summer" in another 40B ruling, according to Paul Wilson, a lawyer with Mintz Levin, who has represented developers in 40B cases for more than 20 years. "Because the statute is not as clear as it might be, there's lots of room for towns and developers to wonder, 'What's the answer to this question?' " - and to challenge each other, and the application of the law, in lengthy legal battles.

Chapter 40B enables developers to bypass most local zoning rules and pursue a streamlined approval process in communities in which 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 nearly six out of seven cities and towns statewide short of the mark - exposing them to 40B applications and feeding their interest in the seven pending cases.

Woburn Board of Appeals v. Housing Appeals Committee. In this closely watched case 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.

For nearly 30 years, local boards approved or rejected projects, or approved them with conditions, such as rules for infrastructure improvements. A decade ago, Wellesley approved a project with conditions that shaved units from a development, and others have followed suit, because of environmental or public-safety reasons, Wilson said. In the case before the court, Woburn more than halved the number of units but did so 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 of Appeals 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 the zoning board, said Gary S. Brackett, the attorney 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. It is also a test of whether a community can challenge its score on the state's affordable housing list when it wants to, or only when a new 40B development has been proposed.

The state housing department, which tracks compliance with 40B, typically counts all units in an apartment complex toward the 10 percent threshold as long as at least 25 percent of them are rented at affordable rates. (In a nonrental 40B development, only the actual affordable units count toward the threshold.)

In 2000, 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 to give it more say over future projects.

On 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 development in Hingham, said Sookyoung Shin, an assistant attorney general. But James Toomey, representing the town, said the state's methods threatened to "deprive the town of the credit it's legally entitled to" under 40B.

Town of Wrentham Zoning Board of Appeals v. West Wrentham Village LLC. After the developer submitted plans in 2004 to build a 31-unit condo development on West Street, the Zoning Board of Appeals denied the application on the grounds that Wrentham already had met the 10 percent threshold. Town officials had counted the units at 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 the state agencies decided jointly not to count the Wrentham facility because it is a closed campus more than a community-based set of group homes. The Housing Appeals Committee and a Superior Court judge upheld the state's interpretation, prompting the town to turn to the SJC.

Taylor v. Lexington Board of Appeals, and Taylor v. Housing Appeals Committee. Both cases are related to the same development by Rising Tide Development LLC, a proposed 36-unit project on 3.6 acres off Lowell Street that the town approved in 2003 with a condition limiting it to 28 units. The developer and a set of abutters, 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. That 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 Lowell Street development, known as the Rising Tide project.

The committee eventually rejected Lexington's conditions and approved Rising Tide 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.

The first Taylor case looks at what happens if a developer and abutters are both unhappy with a zoning board's decision. That situation creates a conflict, because separate statutes call for a developer to appeal first to the Housing Appeals Committee, then to Superior Court, and for abutters to appeal directly to Superior Court, according to briefs filed in the case.

Zoning Board of Appeals of Canton v. Housing Appeals Committee. This raises the same question as the second Taylor case, but with an opposite Superior Court decision.

Canton Property 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 Canton Zoning Board denied the project in 2003, and the developer appealed.

At the time, less than 8 percent of the town's housing stock was considered affordable. But during the appeal for this project, the Canton Zoning Board settled appeals for two other developments, creating a combined 180 affordable units that put Canton over 10 percent.

The appeals 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 because Canton had reached the 10 percent mark.

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 2-acre Groton Electric Light Department transfer station. The utility refused to allow the developer to 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 to be trimmed on the utility's land. The Superior Court upheld the decision, but the town objects on the grounds that the committee is not authorized to take property or convey easements without a vote of Groton Town Meeting.

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