ZBA Overstepped Bounds on Affordable Housing Decision

As reported in the Nov 2010 issue of Planning, the American Planning Association's subscription-only magazine, the Massachusetts Supreme Judicial Court affirmed in September that the Housing Appeals Committee  (HAC) was not in error when it struck certain conditions imposed on a housing development by the Amesbury Zoning Board of Appeals (ZBA). According to Planning, the proposed development consisted of 40 dwelling units, including 10 affordable units.  The ZBA imposed over 90 conditions, some of which pertained to project funding, regulatory and financial documents, and the timing of sale of affordable units in relation to market rate units.  HAC struck conditions not related to zoning.

As excerpted below from the full case, Zoning Board of Appeals of Amesbury v. Housing Appeals Committee, September 3, 2010, 933 N.E.2d 74 (Mass):

Some of the challenged conditions — in particular, conditions 23, 26, 28, 29, 38, 39, 40, 42, 43F, 43G, and 43H — relate to regulatory documents (deed rider, monitoring services, and regulatory agreement); "Fannie Mae" affordable housing 765*765 restrictions (ownership nature of the project, number of affordable units and means of calculating income eligibility, and the manner of ensuring unit affordability in perpetuity); profit limitation; and marketing. We have earlier rejected the board's claim that these conditions were within its authority to impose simply because nothing in § 21 expressly bars it from doing so. These conditions do not relate to the class of local concerns contemplated by § 21, but as the HAC concluded, they fit within the responsibility of State or Federal funding and supervising agencies. There was no legal error in the HAC's treatment of the conditions. See G. L. c. 30A, § 14(7) (c).

A review of the remaining conditions reveals that the HAC struck two of them in their entirety — viewing conditions 42 (requiring board approval of the project monitoring agent) and 54 (requiring that affordable units be constructed and sold coincident with the development of market rate units), as appropriately left to the subsidizing agency — but also appeared to acknowledge that other conditions may not have been beyond the board's authority to impose. The latter were either modified slightly or left unaltered. Again, we discern no legal error in these determinations by the HAC.

To all my Massachusetts readers:  In light of this decision it will be wise for your municipality to consult with its municipal counsel regarding the standard conditions your ZBA imposes on affordable housing developments.