Monday, November 26, 2007

Mixed use is affordable housing … at least in Massachusetts …

   Land use law is unusual in the American legal system, in that it often works to the detriment of what poorer people would get in the free market—often explicitly, in the case of exclusionary zoning.  Thus it makes sense for governments to sometimes give a break to “affordable housing.”  Massachusetts law did just that last week with a high court ruling that a state statute designed to grease the wheels for affordable housing can override local zoning laws, even when the project includes a commercial use.  (The case is Jepson v. Zoning Board of Appeals of Ipswich, No. SJC-09914 (Mass. Nov. 20, 2007)).

Ipswich   The local YMCA in Ipswich, north of Boston, helped plan an apartment building, with 18 units, that would meet the state law requirements for affordable housing, which among things include a pledge that all the units will forever be reserved for low-income households.  The first floor would be used for commerce, including a YMCA center, a bank, and a coffee shop “or similar establishment.”  The Massachusetts Supreme Judicial Court held that it was permissible for the town government to grant a fast-track, comprehensive permit for this mixed-use building, regardless of the fact that a routine commercial development would have required more scrutiny. Nothing in the state affordable housing law prohibits “incidental” commercial uses in an affordable housing structure, the Court noted.

   Such a benefit for mixed-use buildings might naturally provide an incentive for developers to re-characterize commercial-dominated developments as “mixed use.”  In the Jepson case, the trial court concluded that the development was not a “subterfuge for commercial development.”  This leaves open the questions of:   What would be a subterfuge?  Would it have to be an “intentional” effort to “abuse” the affordable housing law?  And, considering the court’s citing of the purpose of the law to encourage more low-cost housing, would a finding of a “subterfuge” be a valid ground for a court’s setting aside a town’s approval?  Lawyers, start your engines …

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