Recent Case and Amended DHCD Regulations Address Date for Calculating Affordable Housing Stock

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, May 2008

The “defining characteristic” of the Chapter 40B framework is that each municipality is required to devote 10 percent of its housing stock to low and or moderate income housing.  Taylor v. Housing Appeals Committee, SJC-10048 (Cowin, J., April 11, 2008).  Satisfaction of that 10 percent threshold allows a local zoning board of appeals to deny an application for a Comprehensive Permit under Chapter 40B with impunity.  In two recent cases, the Supreme Judicial Court denied challenges to regulations governing when a municipality’s compliance with that 10 percent threshold is calculated for applicability to a pending Comprehensive Permit application. 

In Taylor and Zoning Board of Appeals of Canton v. Housing Appeals Committee, SJC-10057 (Cowin, J., April 11, 2008), two municipalities challenged regulations promulgated by the Department of Housing and Committee Development (“DHCD”) at 760 CMR 31.04(1)(a) which provided that the relevant calculation of the 10 percent threshold occurs as of the date of the local board’s decision.  In both cases, the municipalities reached the 10 percent threshold after Comprehensive Permit decisions were issued and appeals of those decisions were pending in the Superior Court and Housing Appeals Committee.  The Court rejected the municipalities’ arguments that the post-decision calculation should be relevant.  The Court deferred to DHCD in its interpretation of Chapter 40B through reasonable regulations and found the challenged provision struck an appropriate balance between the interests of both municipalities and developers.

It should be noted that the challenged regulation at 760 CMR 31.04(1)(a) has since been amended by DHCD.  In revisions that took effect February 2, 2008, the relevant calculation of the 10 percent threshold and other statutory thresholds occurs as of the date of a project’s application — not the decision.  760 CMR 56.03(1).  The SJC did not address this recent amendment, which governs applications going forward, including those pending before a local board at the time of the revisions.  760 CMR 56.08(3).

For further information, please contact Brian Levey at blevey@bdlaw.com or Marc Goldstein at mgoldstein@bdlaw.com.