Monday, April 14, 2008
Can a town have too much affordable housing? May local governments think so, as they try to avoid the presumed tax and other unwelcome consequences of allowing low-income residents into their jurisdiction. So it was in Canton, Mass., an affluent exurb south of Boston, which in 2003 denied an application by a developer to build rental units and low-cost single-family homes. Under Massachusetts law, however, a locality must devote 10 percent of its total housing units to low or moderate cost housing. An aggrieved developer may appeal to a state Housing Appeals Committee. Although Canton did not meet its statutory obligation at the time of the denial, it later claimed to do by allowing another affordable housing project. Did this later action in effect moot its legal obligation to the earlier applicant?
No, said the state Housing Appeals Committee, relying on a regulation which fixes a town’s obligations as of the date of a denial of a permit application. Why did the town say it didn’t want more low-cost housing? Increased traffic, of course! The Housing Committee called this an insufficient reason for the town not to fulfill its duty. Fighting all the way –- as so many localities, do –- Canton appealed to the Massachusetts courts and won in the Superior Court, which found that the housing regulation “skewed … the delicate balance” of the law too far in favor of developers of low-cost housing.
But the developer, Canton Property Holding, LLC, and the state Housing Committee prevailed on appeal to the Massachusetts Supreme Judicial Court. In a decision handed down last Friday, the high court held that the Committee’s rule for determining the date for assessing a town’s compliance was a rational one, and that courts must to defer to rational agency regulations. The Supreme Judicial Court did not find that more low-cost housing would be too much. (The court’s decision is Zoning Board of Appeals of Canton v. Housing Appeals Committee, Mass. Supreme Judicial Ct., No. SJC-10057, April 11, 2008.)
As housing prices continue to either stagnate or fall across the nation, many localities will no doubt fight with even greater tenacity their obligations to foster low-cost housing.