Housing Advisory: Housing Appeals Committee Holds that Housing "Need" Is Not Satisfied by Cheap Market Rate Housing, and Sets Other Helpful Precedents

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Towns where housing is not expensive have recently developed a new justification for denying a comprehensive permit application: claiming that there is no Chapter 40B “regional need for low or moderate income housing” because the town’s existing market-rate housing is affordable to persons of low or moderate income. In a case litigated by Mintz Levin, the Housing Appeals Committee (HAC) has now rejected that theory as a matter of law. The HAC decision, Hollis Hills, LLC v. Lunenburg Zoning Board of Appeals (HAC No. 07-13, Dec. 4, 2009) also clarified how the municipal “planning defense” is applied, and ruled that an adjoining-site zoning violation that allegedly “infects” the project site is relevant only if the zoning violation causes a health or safety problem on the site that outweighs the regional need for affordable housing.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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