Posted by: Patricia Salkin | February 25, 2010

Planning Board Exceeded its Authority in Relaxing Setback Requirements for Affordable Housing

The planning board issued a special use permit to build  a municipally sponsored affordable housing project that would contain six buildings with eighteen affordable units on a 71,000 square foot lot. At issue was whether the board had discretion to reduce the minimum lot area requirements contained in the intensity of use scheduled set forth in the municipal by-laws. The town planner testified, and the language in the by-law provides, that the town intended to provide greater zoning relief as the percentage of affordable housing in a given development increases. The Plaintiff conceded that it is within the board’s discretion to reduce the lot area requirement, but he argued that the proposed development must still meet the necessary frontage, width, setback, and site coverage components of the intensity of use schedule contained and comply with the requirements in the local law that must be met before two or more principal residential structures are erected on same lot. The trial court upheld the board’s discretion to make these reductions, but the appeals court concluded that the board went too far in relaxing municipality’s intensity of use requirements to accommodate developer’s proposed affordable housing project.  The Court explained that the local law requires frontage of 600 feet and a width of 900 feet to the proposed development, and that there are no provisions in the special exception for affordable housing  that refer to frontage or width either explicitly or implicitly. This, said the Court, “is in stark contrast to the express provision in § that “the minimum area per unit in Table 2.3.2 Intensity of Use shall not apply” (emphasis added). If the drafters intended to allow modifications of all of the intensity of use criteria, they clearly knew how to do so.” The Court continued, “General Laws c. 40A, § 9, mandates that a by-law that allows increased intensity of use for affordable housing developments be “specific.” Section gives the board “discretion to reduce or suspend the minimum area requirements otherwise applicable under Section 2.3.2.” Considering that frontage and width requirements are also set out in § 2.3.2 (under the same heading as the minimum area requirements), the reference in § only to “minimum area requirements” cannot be considered mere oversight.”

Davenport v Planning Board of Dennis, 2010 WL 325354 (Mass.App.Ct., 2/01/ 2010)

The opinion can be accessed here


  1. Patty

    This is an interesting case, and the landowner has chosen to appeal the decision. The Section of Chapter 40A Section 9 that the court has cited states the zoning by-law must state the maximum increases in density or intensity of use. It really does not address the relationship to other site considerations. The by-law addresses the maximum intensity of use by tying the density to the carrying capacity of the land as it relates to waste water.

    We have many wordsmiths in town who work on crafting these by-laws. In the case at hand, we started with stating the requirements of Table 2.3.2 did not apply. Over time during the drafting people thought that was unclear and that we wanted to be sure that all the area requirements in table did not apply. That drove us to the “minimum area” small “m” small “a” description we used. As differentiated from the following sentence which dealt with a specific lot size requirement where we used “Minimum Area.” Obviously the distinction was observed in Superior Court, but not the Appeals Court. In the end, it would have been better to leave the “clarifying terms” out as they did not clarify anything.

    We are in the process of making changes to the by-law to address the areas that the court pointed out could be clarified. We were actually pleased with some parts of the decision. The specific section of Chapter 40A Section 9 has usually been tied in to “bonuses” in density for affordable housing or open space. There had been questions about the concept that using Chapter 40A Section 9 to craft an “affordable housing by-law” which granted density relief through-out town for affordable housing projects was a valid use of these provisions. In the ruling, the court has accepted that this section of the statute validates the general premise of the by-law, and, as they noted, if we had not been dealing with a multi-structure site, the ruling might have gone the other way.

    The by-law that was challenged was one of the first of its kind in Massachusetts and has been used as a model for other towns to follow. In its 9 years in existence, this has been the only challenge. In that time period we have created 65 units of affordable housing, about 10% of the total new housing created in town in that time period.

    We expect to correct these issues at the May 2010 Town Meeting and get the town back on the path of controlling its own destiny as it applies to affordable housing.

    Dan Fortier, AICP
    Dennis Town Planner

  2. This is an interesting case. It really does not address the relationship to other site considerations.

    serious and willful misconduct

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