Affordable Housing Gets Zoning Pass in Mass.

June 15, 2007 | National Law Journal
By Sheri Qualters, Staff reporter

Boston -- A Massachusetts Supreme Judicial Court decision ruled that a town that had met its minimum affordable housing requirement under the state's regional planning law could give a developer a so-called comprehensive permit that fast-tracks affordable housing developments.

The June 14 decision ruled that the zoning board of appeals of Amherst could consider the regional need for affordable housing when granting a comprehensive permit, which is a consolidated town permit giving approvals normally granted by several town boards. John Boothroyd v. Zoning Board of Appeals of Amherst, SJC-09896 (Mass.) “A municipality's attainment of its minimum affordable housing obligation in many cases does not eliminate the need for affordable housing within its borders,” said the opinion authored by Associate Justice John M. Greaney.

“Application of the regional needs test, however, ensures that local boards of appeal with balance the competing considerations involved.” The Boothroyd case is the first Massachusetts appellate case to squarely address the issue of whether a city or town that has reached the 10% threshold under the law can continue to grant more comprehensive permits, said Don Pinto, a director at Boston's Rackemann, Sawyer & Brewster. Pinto represented Springfield, Mass.-based Hap Inc., a non-profit affordable housing agency that sought to build 26 units of affordable rental housing in Amherst.

The plaintiffs don't believe that a town with more than 10% of low- and moderate-income housing should be subject to the same permitting review standard that allows comprehensive permits, said plaintiffs' lawyer John E. Garber of Weinberg & Garber in Northampton, Mass.

“This is 100 middle class homeowners in Amherst,” Garber said. &lquo;Our position is, it doesn't make sense to use the same standard that was designed to circumvent local zoning rules.” About 50 communities in Massachusetts have reached the 10% affordable housing target, said David Weiss, a director at Boston's Goulston & Storrs, which filed an amicus brief on behalf of two housing advocacy groups and two cities in Massachusetts.

“More communities will now feel free to welcome additional mixed income developments without fear of getting tied up in endless legal challenges over their power to do so,” Weiss said.

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