Municipalities May Issue Comprehensive Permits after Reaching Affordable Housing Thresholds

Beveridge & Diamond, P.C., 2007

Massachusetts’ highest court has ruled that even after a municipality has fulfilled its low or moderate income housing obligation under Chapter 40B, a board of appeals may still grant a Comprehensive Permit.  In Boothroyd v. Zoning Board of Appeals of Amherst, SCJ-09896 (June 14, 2007), despite the fact that Amherst had reached its 10 percent affordable housing threshold set under Chapter 40B, the Amherst Board of Appeals granted a Comprehensive Permit with conditions after it took evidence about the regional need for affordable housing, including that there were 870 families on the Amherst Housing Authority waiting list, with a wait of three to six years for affordable units.  The Board concluded that this need for affordable housing outweighed concerns regarding density, traffic and other “constraints imposed by the zoning bylaw.” 

A group of residents appealed the grant of the permit, arguing that because Amherst had satisfied its minimum affordable housing obligation under Chapter 40B, the Board could not consider this “regional need” in its decision to waive bylaw requirements.  The residents contended that the developer should have been required to apply for variances and special permits under the local bylaw rather than the comprehensive permit.

The Court concluded there is nothing in Chapter 40B that divests a board of appeals of its discretion to waive local requirements and grant a comprehensive permit once the town satisfies its minimum affordable housing obligation.  In such a case, the board is not required to issue a comprehensive permit, but it may act in a manner “consistent with local needs” in applying the local zoning bylaws.  The definition of “consistent with local needs” in Chapter 40B, § 20 includes what is “reasonable in view of the regional need for low and moderate income housing.”  Therefore, the Court concluded that application of the “regional needs test” by a board once the minimum affordable housing obligation has been satisfied is appropriate as the board considers the exercise of its discretion to apply local bylaws.

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