SJC Again Rebuffs Local Attempts to Control 40B Low-Income Housing Developments

40B ProjectZoning Board of Appeals of Sunderland v. Sugarbush Meadow, LLC is the Supreme Judicial Court’s (SJC) latest snub to municipal attempts to control the development of low income housing.  Despite testimony from the Town’s Fire Chief that the Town lacks the necessary equipment to battle a structural fire at the project, and testimony from the Town Administrator about the Town’s financial inability to provide educational, safety and law enforcement services to the development’s residents, the SJC affirmed the state Housing Appeals Committee’s (HAC) approval of the project. 

Sunderland is a small town of 3,700 residents bordering Amherst in western Massachusetts.  Sugarbush Meadow applied for a comprehensive permit under G.L. c. 40B to build five three-story buildings with 150 rental apartments.  The Sunderland Zoning Board of Appeals (ZBA) denied the project citing a variety of concerns, including fire safety, fiscal impact and the relative need for affordable housing in the region.  Sugarbush appealed to the HAC.  The HAC vacated the ZBA’s decision and ordered it to issue the comprehensive permit.  The ZBA unsuccessfully appealed the HAC’s decision to the Superior Court and then to the SJC. 

On appeal the ZBA alleged several errors by the HAC.  First, the ZBA argued that the HAC should have considered the availability of low-cost, market-rate rental housing when calculating the ten percent affordable housing threshold under G.L. c. 40B.  This is a critical issue because when a town affordable housing stock is below 10 percent, developers largely can bypass local zoning regulations.  The SJC rejected the ZBA’s argument concluding that under the statute, G.L. c. 40B, §20, and the regulations, 760 CMR 56.02, only housing that is subsidized by the Federal or State government is considered in weighing the regional need for affordable housing.  The SJC reasoned that non-subsidized housing may not be safe or decent, may be only temporarily available because of a weak housing market, or could be improved or enlarged such that it would no longer be affordable.  As an aside, the Court stated in a footnote that, although not applicable in this particular case, unsubsidized housing can count towards the ten percent threshold provided such housing is subject to a Use Restriction and Affirmative Fair Marketing Plan under 760 CMR 56.02. 

Second, the SJC rejected the ZBA’s argument that fire safety concerns outweighed the regional need for low and moderate income housing.  Noting that the project would have a state-of-the-art sprinkler system and comply with all fire safety code requirements, the SJC dismissed the Fire Chief’s concern that “the town lacks the equipment needed to obtain access to the roof in the event of a ‘structural fire’” and does not possess a ladder truck tall enough to reach the roof. 

Third, the SJC rejected the Town’s concerns about the fiscal impact of the project, including the need to purchase a ladder truck for fire safety, as well as the increased educational, police, and firefighting costs associated with the project.  In short, the SJC held that such financial concerns may not be considered in evaluating whether the denial of project approval is consistent with local affordable housing needs under G.L. c. 40B, §23.

Following the SJC’s January 8, 2013 decision rejecting another municipal appeal of an HAC approval for a 40B project in Zoning Board of Appeals of Lunenburg v. Housing Appeals Committee, the SJC’s more recent decision in Sunderland is another shot across the bow of municipalities that attempt to deny or overly restrict the development of low income housing.  The Sunderland Court notes the Legislature’s intent in enacting G.L. c. 40B “to balance between leaving to local authorities their well-recognized autonomy generally to establish local zoning requirements … while foreclosing municipalities from obstructing the building of a minimum level of housing affordable to persons of low income.”  While the goal of promoting the development of more low income housing is certainly laudable, many municipalities will be left wondering after Lunenburg and Sunderland what local autonomy remains when it comes to the regulation of 40B projects.

For questions about permitting 40B projects or litigating disputes involving 40B projects, please contact David McCay, an experienced Massachusetts real estate litigator at Mirick O’Connell at (508) 791-8500

About David McCay

Dave is a partner in the firm’s litigation and land use groups where he assists clients in the resolution of complex real estate, environmental and business disputes. He also represents property owners and developers in local land use permitting matters. Dave is active in the Boroughs+ region serving as the Chair of the Southborough Economic Development Committee and as immediate Past Chair of the Marlborough Regional Chamber of Commerce. He is also a member of the Board of Directors of the 495/MetroWest Partnership, the Advisory Board of the MetroWest Economic Research Center at Framingham State University, and the Marlborough Economic Development Corporation. Dave lives in Southborough with his wife and two sons.
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