Housing Advisory: SJC Issues Two Decisions Concerning When to Count to 10% under Chapter 40B

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Chapter 40B says that once a municipality is deemed by the Department of Housing and Community Development (DHCD) to have 10% or more of its overall housing stock comprised of “countable” subsidized housing, the city or town may then deny a new comprehensive permit application without fearing a developer appeal. But what happens when a city or town reaches the magic 10% threshold after the zoning board of appeals (ZBA) issues its decision (either a denial or an approval with conditions) and the developer is in the midst of its appeal of the decision? Two different state trial court judges gave opposite answers to that question, but now the Supreme Judicial Court (SJC) has resolved that split in authority. The SJC has ruled that a town’s later satisfaction of the 10% test does not mean that other applicants already appealing ZBA decisions are out of luck.

In Zoning Board Appeals of Canton v. Housing Appeals Committee,1 one Superior Court judge said that the reaching of the 10% threshold kills any subsidized housing proposal then under appeal because the Housing Appeals Committee (HAC), which adjudicates Chapter 40B developers’ appeals, automatically “loses its jurisdiction” upon the town’s satisfaction of the 10% threshold. But in Taylor v. Housing Appeals Committee,2 a second Superior Court judge ruled that the developer on appeal was saved from the project death sentence imposed by the town’s achievement of the 10% threshold so long as town was below 10% at the time the ZBA decision under appeal was issued.

DHCD regulations and HAC precedent had adopted that very rule, and the second Superior Court decision, Taylor, found the rule was fully consistent with Chapter 40B. After all, a

primary purpose of that statute is to counteract subsidized housing opponents’ historical practice of upending unpopular proposals through delay and manipulation.

SEE ADVISORY FOR MORE INFORMATION.

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