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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