The Supreme Judicial Court (SJC) recently turned its attention back to affordable housing under the state’s comprehensive permit law, M.G.L. c. 40B, §§ 20-23 (Chapter 40B).  Since a high point in 2008, when it decided four Chapter 40B cases, the SJC has been relatively quiet on this subject.  Quiet, that is, until the past few weeks, when the court issued two important opinions, Zoning Board of Appeals of Lunenburg v. Housing Appeals Committee and (a week later) Zoning Board of Appeals of Sunderland v. Sugarbush Meadow, LLC.

Tasked with administering Chapter 40B, the state’s Housing Appeals Committee (HAC) has itself acknowledged that the statute “is not a model of clarity” and that every section “has required painstaking construction and interpretation over the years . . . .”  It’s surprising, then, that the boards of appeals in Lunenburg and Sunderland both found an argument that contravenes some of the plainest language in the statute, and ran with that argument all the way to the SJC. 

Both boards staked their bets on the assertion that the HAC could not overturn their denials of comprehensive permits because of the availability of affordable market-rate housing in Lunenburg, Sunderland, and their environs.  The SJC rejected this argument because it conflicts with the language of the act.  Section 20 of Chapter 40B limits a board to considering “the regional need for low and moderate income housing,” and defines “low or moderate income housing” as “any housing subsidized by the federal or state government . . .” (emphases added).  Market-rate housing, however lowly priced, is not subsidized.  The statute’s plain language would have been enough to silence this argument, but the SJC, appropriately, went on to point out some of the reasons why the statute says what it says. 

A market-rate house built in 1827, for instance, may sell for the same price as a new low-income unit, but the true cost of ownership differs greatly.  Moreover, as the SJC noted, some market-rate units are inexpensive because they’re unsafe, and others are only temporarily priced low.  Their price will rise with the market.  Unlike subsidized housing, these units are not deed-restricted to limit their price.  In its discussion, the SJC can be heard echoing a sentiment expressed more than a decade ago in Zoning Board of Appeals of Wellesley v. Ardemore Apartments Limited Partnership: “if housing . . . is ‘affordable’ only temporarily . . . a city or town may never achieve the long-term statutory goals.”

Not all Chapter 40B projects are created equal; some are better than others.  And even in Lunenberg and Sunderland there were some complicating factors.  But when the SJC has to assert its direct review authority to address contentions such as the “market-rate” argument, one has to wonder if there is no end to the arguments that will be raised over the statute’s meaning.  Perhaps a direct appeal to a single justice of the SJC would better address the concern that delay “is often as effective as denial” and in “c. 40B proceedings . . . could . . . be more effective than denial.”  Milton Commons Assocs. v. Board Of Appeals of Milton, 14 Mass. App. Ct. 111, 117 n. 2 (1982).  Certainly every town and every aggrieved neighbor should have their day (or days) in court.  But those days should be a means to an end (the adjudication of legitimate grievances), not the end itself.