Housing Alert: Massachusetts’ Highest Court Instructs Town Boards of Appeals Not to Invade the Province of State Subsidizing Agencies

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After several years of debate, disagreement, and litigation between developers of subsidized housing and local zoning boards of appeals (ZBAs) concerning the question of the breadth of those boards’ authority over comprehensive permit applications under G.L. c. 40B (“Chapter 40B”), the Supreme Judicial Court has settled an important aspect of the question. On September 3, 2010, in Zoning Board of Appeals of Amesbury v. Housing Appeals Committee, (“Amesbury”), the Court held that “programmatic” aspects of a comprehensive permit project belong solely within the purview of state-level subsidizing agencies (such as, in Amesbury, MassHousing). Therefore, the Court said, local boards of appeals must not tread upon these areas when conducting their review or attaching permit conditions. Chapter 40B confines the board of appeals’ review, and the permit conditions it can impose, to health, safety, or planning concerns. In reaching this decision, the Court upheld the position of the Housing Appeals Committee (HAC), the Department of Housing and Community Development, and MassHousing and other state subsidizing agencies.

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