Hingham’s Linden Ponds retirement community was involved in one of several Chapter 40B legal battles.
In a victory for communities considering affordable housing projects, the state’s highest court has ruled that a state administrative board did not have the authority to boost the number of units in a proposed Woburn apartment complex.
“It’s an important decision for municipalities, and zoning boards of appeal in particular, dealing with the issue of affordable housing. I think what it does is make clear the role the zoning board has in addressing 40B projects, density and the impact to the neighborhood and the communities as a whole,” said Worcester attorney Gary S. Brackett, who represented Woburn.
The case spans back nearly eight years when Colorado-based developer Archstone-Smith sought a permit to build a 640-unit development on about 75 acres off Cambridge Road. The developer applied for the permit under Chapter 40B, a state law designed to encourage the development of affordable housing.
The Woburn Zoning Board of Appeals approved the project, but cut the number of permitted units to 300, saying 640 units was too large and would burden the community. The developer appealed to the state Housing Appeals Committee arguing that the unit reduction made the project “uneconomic.”
The HAC determined that while the unit reduction did not make the project economically infeasible, the city of Woburn’s concerns about the development’s size did not outweigh the region’s need for low- or moderate-income housing. After a series of appeals by both the developers and the city to Suffolk Superior Court, the case was sent back to the HAC, which ruled that 540 units were acceptable.
The case was then appealed to the Supreme Judicial Court. In its ruling, the SJC found the HAC “lacked the power to revise or revoke” conditions imposed by the Woburn Zoning Board of Appeals.
“The Housing Appeals Committee had not only with this case but with other cases determined on its own, without any support in the statute or regulations, that under certain conditions it would consider an approval with conditions where there was a reduction in the density or number of units as a denial,” Brackett said.
Because of that, communities weren’t sure if they proposed a reduction in units whether it would be considered a denial by the HAC or an approval of the permit with conditions attached, he said.
The Department of Housing and Community Development adopted regulations earlier this year that addresses project size reduction.
“DHCD appreciates that court’s reasoning as set forth in the majority opinion. However, this issue, which relates to the zoning board of appeals’ decision to grant a comprehensive permit for a smaller project than proposed by the developer, has been addressed in the new 40B regulations that DHCD issued in February of this year,” DHCD Spokesman Phil Hailer said in a writ-ten statement.
Calls to Archstone-Smith and its attorney were not returned by press deadline.
The SJC decision is the last in a series involving six Chapter 40B projects this year.
In late May, the SJC ruled in cases involving disputes about which residential units can be counted as affordable in Hingham and Wrentham. Hingham was fighting to count all the units in Linden Ponds, a large retirement community, as affordable to meet the 10 percent state mandate for low- and moderate-income housing.
In Wrentham, officials wanted to include a Department of Mental Retardation facility in its count. But the state said the units in both cases didn’t qualify and the SJC said the courts shouldn’t intervene until the towns had exhausted “administrative remedies.”
A month earlier, the court sided with developers of projects in Canton and Lexington. In those cases, the towns had reached 10 percent affordable housing while the developers were ap-pealing decisions made by the local zoning boards.
Also in April, the court found that the HAC didn’t have the power to force Groton to grant an easement to allow for construction of a mixed-income condo development.
