Canton Property Holding submitted a comprehensive permit application to the Town of Canton for a project to consist of two developments: one consisting of 196 units of rental housing, and a subdivision containing 24 single family homes, one two-family plan, and three duplexes. Both of these developments would qualify as “low or moderate income housing” under state statute. The Zoning Board denied the application citing increased vehicular traffic and the belief that the project was inconsistent with local needs. The following month, the board also denied comprehensive permit applications from a second developer, Pequit. Both Canton and Pequit appealed to the Housing Appeals Committee. While Canton’s appeal was pending, the Town reached an agreement with Pequit, leading to an approval of 180 affordable housing units. This agreement brought the Town into compliance with its mandated minimum requirement of 10% of its housing stock consisting of affordable housing units. Therefore, the board moved to dismiss Canton’s appeal arguing that the Housing Appeals Committee no longer had power to decide the matter once the Town met or exceeded its requirement for affordable housing units, and that requiring the Town to approve the Canton project would result in more than 12% of the Town’s housing stock being affordable and that this was an “unreasonable” demand.
The Housing Appeals Committee denied the Town’s motion, concluding that the town’s compliance with the statutory minimum requirement was to be determined as of the date of the board’s decision on the permit application being appealed and that this application is not affected by subsequent events. The Housing Appeals Committee further ordered the Town to issue a comprehensive permit to Canton. It found that the Town’s concerns over traffic patterns were merely a matter of “inconvenience” and did not rise to a public safety concern that outweighed the need for affordable housing, and further that the fact that twelve percent of the Town’s housing units would be affordable was not “unreasonable.”
The Superior Court reversed the Housing Appeals Committee, reasoning that by the fixing the date of the town’s compliance with the statutory minimum at the time of the board’s decision on the Canton application, “skew[ed] the…delicate balance…too far in favor of developers and against municipal autonomy.”
In reversing the Superior Court, the Supreme Judicial Court noted that the Department of Housing and Community Development had “promulgated a regulation stating that a town’s compliance with the statutory minimum levels of affordable housing is to be calculated as of the time a local board files its decision on a comprehensive permit application.” Relying on its decision in Taylor v. Housing Appeals Comm (2008), the Court reiterated that the Department’s “choice of the date of filing of the board’s decision is neither irrational nor inconsistent with the statute.” In fact, the choice of timing is a detail, explained the Court, within the agency’s discretion, and it did not affect the delicate balance between municipal autonomy and the need for affordable housing. The case was remanded.
Zoning Bd. of Appeals of Canton v. Housing Appeals Committee, 2008 WL 962859 (Mass. 4/11/2008).
The opinion can be accessed at: http://www.malawyersweekly.com/archives/ma/opin/sup/1007308.htm
Read a comment on the Land Use Professor Blog at: http://lawprofessors.typepad.com/land_use/2008/04/too-much-afford.html
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