Agenda - Planning Commission - 04/04/2013

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February 25, 2013 I Volume 7 I Issue 4 Zoning Bulletin Hollis Hills appealed the Board's denial to HAC. HAC set aside the Board's decision and directed the Board to issue a comprehensive permit. The Board appealed to the superior court. The superior court affirmed the HAC's decision. The Board again appealed. Among other things, on appeal, the Board argued that in calculating the regional need for low and moderate income housing in the town of Lunenburg (the "Town "), low -cost market -rate housing that is not subsidized by federal or state government should be considered. In reviewing Hollis Hills' appeal and deteimining whether a comprehensive permit should have issued to Hollis Hills, the HAC had excluded housing that was unsubsidized by the federal or state govern- ment in weighing the regional need for affordable housing. DECISION: Judgment of superior court affirmed. The Supreme Judicial Court of Massachusetts rejected the Board's argument. It held that low -cost market -rate housing that is not subsidized by federal or state government is not to be considered in calculating the regional need for low and moderate income housing when reviewing an application for a comprehensive permit. The court found this conclusion was required by the plain language of Chapter 40B and was in hainiony with the purpose of Chapter 40B. Under G.L. c. 40B, § 20, the factor that is to be considered in determining whether local requirements or regulations are "consistent [ with local needs" is the "housing need." The statute effectively defines "housing need" as "the regional need for low and moderate income hous- ing considered with the number of low income persons in the city or town affected." Also, under the Act, "[1]ow or moderate income hous- ing" is defined as meaning "any housing subsidized by the federal or state government under any program to assist the construction of low or moderate income housing as defined in the applicable federal or state statute, whether built or operated by any public agency or any nonprofit or limited dividend organization." (G.L. c. 40B, § 20.) Looking at this plain text of the Act and the governing regulations, the court found that HAC, in weighing the housing need, was required to exclude from consideration any affordable housing that is not subsidized under a qualifying government- sponsored program. The court deter- mined that this interpretation of the statutory language was in harmony with the purpose of Chapter 40B: to address "an acute shortage of decent, safe, low and moderate cost housing" throughout the Commonwealth. As the court noted: some market -rate housing may be affordable because the units are neither decent nor safe; and other affordable market rate housing units may be both decent and safe, but may be affordable only temporarily because of a weak housing market. Regarding the latter, the court emphasized that there was no way to ensure that affordable market - rate homes would be limited in availability to low or moderate income 4 © 2013 Thomson Reuters